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Full text of "Ernst C. Stiefel Collection 1940-1997"

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INTERNATIONAL 
CRIMINAL LAW 



EDITED BY 



GERHARD O. W. MUELLER 

AND 

EDWARD M. WISE 






FRED B. ROTHMAN & CO. 

SOUTH HACKENSACK, N.J. 

SWEET & MAXWELL LIMITED 

LONDON 



Contents 

Consular Convention bctwccn the United States and Costa Rica, 

Article 7 169 

Universal Declaration of Human Rights 170 
Convention for the Protection of Human Rights and Fundamental 

Freedoms 177 

Note [European Convention on Human Rights] 195 

Rudolph V. Alabama 198 

Resolution of the Congress of the United States 200 
Harvard Draft Convention on the International Responsibility of 

States for Injuries to Aliens, Article 13 202 

Single Convention on Narcotic Drugs, Articles 35-39 203 



CHAPTER 3 

PIRACY AND WAR CRIMES 

(1) Piracy 

Harvard Research Draft Convention on Piracy, Articles 1-19 209 

Convention on the High Seas, Articles 14-22 215 
** To Define and Punish Piracies " — The Lesson of The Santa 

Maria Thomas M. Franc l( 218 

Bibliography 224 

(2) War Cr im es 

Treaty of Versailles, Articles 227-230 225 
Agreement for the Prosecution and Punishment of the Major War 

Criminals of the European Axis 227 

The Law of the Nuremberg Trial Quincy Wright 239 

Formulation of the Nürnberg Principles 

International Law Commission 279 

In re Eichmann : A Dilenmia of Law and Morality Helen Silving 290 

The Eichmann Case in International Law Robert K. Woetzel 354 

Bibliographical Note 366 



CHAPTER 4 

INTERNATIONAL JUDICIAL COOPERATION 

(1) Judicial Assistance 

Harvard Research Draft Convention on Judicial Assistance 
European Convention on Mutual Assistance in Criminal Matters 

xiv 



375 
391 



y 



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23RD STORY of Level 1 printed in FÜLL format 

Copyright 1994 Agence France Presse 

Agence France Presse 

November 09, 1994 19:56 Eastern Time 



SECTION: International news 



LENGTH: 374 words 



HEADLINE: UN defines powers of crime tribunal on Rwanda 

DATELINE: UNITED NATIONS, Nov 8 

BODY: 

The international criminal tribunal for Rwanda established here Tuesday will 
have powers to prosecute persons accused of acts of genocide and of crimes 
against humanity. 

The tribunal, made up of two lower courts and a court of appeals, has the 
authority to sentence convicted criminals to prison but it cannot order the 
death penalty. 

The tribunal can also order that all property seized illegally be returned. 

Under a resolution adopted by the Security Council, the tribunal defines 
genocide as any act "committed with the intent to destroy, in whole or in part, 
a national, ethnic, racial or religious group as such." 

The tribunal will also have the power to prosecute persons accused of crimes 
against humanity "when committed as part of a widespread or systematic attack 
against any civilian population on national, political, ethnic, racial or 
religious grounds . " 



The seat of the tribunal will be determined at a later date. 

Its mandate was to cover the period of January 1 to December 31, 1994 and 
applies to crimes committed by a Rwandan Citizen on the territory of Rwanda and 
on that of neighboring countries. 

The tribunal was to be modelled after the international war crimes tribunal 
for the former Yugoslavia, established in 1993 and based in The Hague. 

The UN General Assembly was to appoint the six judges to the lower courts 
from a list of 12 to 18 candidates that will be screened by the Security 
Council . 

Under UN rules, all countries must immediately answer requests for assistance 
from the tribunal concerning the search, arrest and court appearance of alleged 
criminals in the Rwandan genocide. 

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Agence France Presse, November 09, 1994 



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28 INTLLAW 475 
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The International Lawyer 

Summer, 1994 

Task Force Report 

•475 AMERICAN BAR ASSOCIATION TASK FORCE ON AN INTERNATIONAL 

CRDVnNAL COURT 



Final Report [FNa] 

Copyright ® 1994 by the American Bar Association 

RECOMMENDATION 

BE rr RESOLVED, that the American Bar Association recommends that the U.S. Government 
work toward finding Solutions to the numerous important legal and practical issues identified in the 
accompanying reports of the Task Force on an International Criminal Court and the New York State 
Bar Association, with a view toward the establishment of an international criminal court, 
considering the following principles and issues: 

A. Jurisdiction of the court shall be concurrent with that of member states. It may cover a 
ränge of well estabhshed international crimes, but member •476 states shall be free to choose by 
filing a declaration of the crimes they shall recognize as within the court's Jurisdiction. 

B. No person shall be tried before the court imless Jurisdiction has been conferred upon the 
court by the state or states of which he is a national and by the State or states in which the crime 
is alleged to have been committed. 

C. The fundamental rights of an accused shall be protected by appropriate provisions in the 
court's constituent Instruments and in its rules of evidence and criminal procedure. 

D. The Obligations of states under the court's constituent Instruments shall be enforced by 
sanctions. 

The report submitted with the recommendation by the Task Force on an International Criminal 
Court identified and discussed a nvimber of legal and practical issues regarding the establishment of 
an international criminal court. Admittedly, however, the report was unable to explore all of these 
issues in a thorough fashion, and it was understood at the time of adoption of the recommendation 
that the Task Force would continue its work in an efifort to examine those issues it previously had 
given little consideration to, such as, for example, proceedings at trial. There was also general 
agreement that the Task Force would benefit from the addition of several new members. 

Accordingly, at its meeting in September 1992, the ABA Board of Govemors approved the Annual 
Plan of the Task Force and authorized the Task Force to accept extemal funding for the purpose of 
continiüng its Operations during the 1992-1993 ABA Year. The new President of the ABA, Michael 
McWilliams, appointed seven new members of the Task Force. These new members are, in 
alphabetical order: Michael Abbell, Craig Baab, Eric L. Chase, William M. Hannay, Louis B. Sohn 
and Rebecca J. Westerfield. 

The composition of the reconstituted Task Force, then, is as foUows. The chairperson is Bei\jamin 






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R. Civiletti. The other members of the Task Force are, in alphabetical order, Michael Abbell, Donald 
B. Ayer, Craig Baab, Eric L. Chase, Stuart H. Deming, Edward S.G. Dennis, Jr., Helen M. 
Eversberg, Robert B. Fiske, Jr., William M. Hannay, Jerome J. Shestack, Louis B. Sohn, Melvyn 
Tanenbaum, Michael E. Tigar, Rebecca J. Westerfield, and Bruce Zagaris. 

Professor John F. Murphy continues as reporter for the Task Force. 

After being reconstituted, the Task Force divided into working groups on the foUowing topics: (1) 
Jurisdiction, Applicable Law, and Sentences, chaired by Professor Louis B. Sohn; (2) Structure, 
Process, Procedure, and Rules, chaired by Judge Melvyn Tanenbaum; and (3) Livestigation, 
Charging, Prosecution, and Licarceration, chaired by Michael Abbell. These working groups 
exchanged views by letter and telephone and also commented on discussion pai)ers prepared by the 
rejx)rter. 

The reconstituted Task Force as a whole held two meetings. In addition to general discussion 
members of the Task Force commented on drafts of this report by the reporter. 

♦477 The Task Force also benefitted from the participation in its meetings of Bruce C. Rashkow, 
Assistant Legal Adviser for United Nations AfFairs, and Michael P. Scharf, then Attomey/Adviser, 
Office of the Legal Adviser, U.S. Department of State, now Assistant Professor of Law, New England 
School of Law. Ms. Jamison Borek, Deputy Legal Adviser, provided helpful comments on a draft of 
this report, and the Office of the Legal Adviser also kindly supplied the Task Force with various 
docxmients relevant to an international criminal court. 

A special note of thanks and appreciation is due Alaire Bretz RieflFel, staflF liaison for the Task 
Force and Director, ABA Section of Litemational Law and Practice. Ms. RiefiFers cheerful and 
eflficient handling of numerous administrative details associated with this project has been of great 
assistance to the Task Force. 

The expanded size of the Task Force has increased the already substantial diversity of views 
represented on it. Accordingly, it proved impossible to achieve agreement on all the propositions set 
forth in this report. To the extent possible, where there has been a sharp disagreement of view, this 
has been noted in the report. Every effort has been made to give a fair hearing to the füll ränge of 
opinions. Association with the report as a member of the Task Force does not necessarily signify 
complete agreement in every particular, but rather general agreement with the report's substance. 

This report should be read as a Supplement to, as well as an updating and expansion of, the Task 
Force's report that accompanied the recommendation adopted by the House of Delegates in August 
1992. [The complete text of the Task Forceps first recommendation and report appears in the Spring 
1993 issue of The International Lawyer (Vol. 27, No. 1).] 

As a Supplement to the first report this report does not re-examine the arguments for and against 
an international criminal court. Also, as we shall see, these arguments have largely been overtaken 
by recent developments. Rather, the report begins with a brief examination of mqjor developments 
since the date of the first report. Next the report tums to the issue of the court's subject matter and 
personal Jurisdiction and the law it should apply. The report then explores, in separate sections, the 
nature and structure of the covirt; its pre-trial and trial procedures; and the enforcement of sanctions 
against persons convicted of crimes within the court's Jurisdiction. 

I. Recent Mßjor Developments 

Perhaps the most significant development since the first report of the Task Force is the decision of 






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the United Nations Security Council, on February 22, 1993, "that an international tribunal shall be 
established for the prosecution of persons responsible for serious violations of international 
humanitarian law committed in the territory of the former Yugoslavia since 1991." [FNl] Folio wing 
•478 this decision the Security Council, on May 25, 1993, adopted a Statute for an ad hoc tribunal 
attached to a report of the Secretary-General [FN2] and, inter alia, requested suggestions from 
member states of the United Nations as to the rules of proced\u*e and evidence that the judges of the 
tribunal might adopt pursuant to the terms of the Statute. [FN3] 

On July 8, 1993, the ABA Section of International Law and Practice Task Force on War Crimes in 
Former Yugoslavia (War Crimes Task Force) issued its Report on the International Tribunal to 
Adjudicate War Crimes Committed in Former Yugoslavia. In this report the War Crimes Task Force 
Supports the Secretary-General's Report and the Statute but recommends certain additions and 
modifications. In preparing our report we have drawn on a number of insights contained in the 
report of the War Crimes Task Force. 

Although, as we shall see below, the tribunal being established by the Security Council difFers in 
significant aspects from the kind of permanent international criminal tribunal that is under 
consideration by the International Law Commission and the United Nations General Assembly, 
there are considerable areas of overlap between the two kinds of tribunals. Moreover, it would 
appear that the Security CounciFs action has heightened interest in the establishment of a 
permanent international criminal court, and may result in an acceleration of eflforts, inside and 
outside of the United Nations, to this end. 

Within the United Nations there has been considerable movement on a permanent tribunal since 
the first report of the Task Force. Most significantly, on November 25, 1992, the General Assembly 
adopted a resolution that requested the International Law Commission to imdertake "the elaboration 
of a draft Statute for an international criminal court as a matter of priority as from its next Session." 
[FN4] At the 1993 simmier session of the International Law Commission in Geneva, a Working 
Group on the Draft Statute for an International Criminal Court completed a report and draft Statute, 
[FN5] which will be considered by the Sixth (Legal) Committee of the General Assembly during the 
Assembly's Forty-Eighth session. A copy of the working group's draft Statute has been attached to 
this report as Appendix [A]. There will be references to the working group's report and draft Statute 
throughout this report. 

There has also been some movement in Congress on the issue of an international criminal court. 
On May 12, 1993, the Senate Committee on Foreign Relations held a hearing on this topic. Partly as 
a result of this hearing the committee *479 reported favorably on S. J.Res. 32, which calls on the 
United States to "make every effort to advance" the proposal for the establishment of an 
international criminal court at the United Nations. The substance of S. J.Res. 32 has recently been 
incorporated into the State Department Authorization Bill, which, at this writing, awaits 
congressional consideration. 

n. Jurisdiction and Applicable Law 

Issues that have arisen with respect to subject matter and personal Jurisdiction and applicable law 
have been among the most hotly debated in UN and other forums. Each area will be discussed in 
tum. 



A. SUBJECT MATTER JURISDICTION 

As noted in the first report of the Task Force, in 1990 the ABA Section of International Law and 
Practice favored the establishment of an international criminal court whose Jurisdiction would be 






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limited to international drug trafficking. [FN6] For the reasons set forth in the report most members 
of the Task Force favored a tribunal with a wider jurisdictional scope. 

At least one member of the newly reconstituted Task Force has argued strenuonsly for a tribunal 
whose Jurisdiction would be limited to war crimes. [FN7] The Jurisdiction of the ad hoc tribunal that 
the Security Council is in the process of establishing is limited to "serious violations of international 
humanitarian law committed in the territory of the former Yugoslavia" between January 1991 and a 
date to be determined by the Security Council upon the restoration of peace. [FN8] Specifically, the 
crimes covered by the court's Statute include "Grave breaches of the Geneva Conventions of 1949," 
[FN9] "Violations of the laws or customs of war," [FNIO] "Genocide," [FNll] and "Crimes against 
humanity." IFN12] The Jurisdiction of the ad hoc tribunal, then, is limited to crimes committed in 
the former Yugoslavia, and even this limited Jurisdiction is anticipated to end as to any crimes 
committed in this area after the Security Council has determined that peace has been restored. The 
issue is whether a permanent tribimal should be established whose Jurisdiction would be limited to 
war crimes but whose geographical scope would be worldwide. 

•480 As the Situation in former Yugoslavia illustrates, there is much support for the concept of 
prosecuting "serious violations of international himianitarian law" before an international tribunal 
because of the failure of states to prosecute such crimes in national courts and the precedent 
Niuremberg afifords of trying them before an international tribunal. Some members of the Task 
Force, however, would contend that such violations of international himianitarian law, if not 
prosecuted before national courts, should be tried before ad hoc tribunals established by the Security 
Council rather than by a permanent tribimal, especially since, in such cases, the violations may be 
the result of Orders from the highest levels of govemment, and the enforcement powers of the 
Security Council are required to enable the perpetrators to be brought to trial. By contrast, this 
argument continues, a permanent court, presumably established by treaty rather than by Security 
Council resolution, would not have such powers to confront heads of State or other high ranking 
govemment ofificials. Finally, some believe that including such crimes within the Jurisdiction of a 
permanent court would greatly increase the risk that the tribunal would become a politicized body, 
as some states would attempt to use it to pursue political agendas. Charges of "war crimes" or 
"genocide" have been levelled in the past, for example, against U.S. presidents or high ranking 
govemment ofificials in other coimtries. 

In response others have contended that there is no guarantee that the Security Council would be 
willing to establish additional ad hoc tribunals to exercise Jurisdiction over serious violations of 
international humanitarian law in other parts of the world than former Yugoslavia. Therefore, only 
a permanent international criminal court would afiford a realistic alternative to trial in national 
courts. Moreover, in extreme cases, the Security Council might be called upon to exercise its 
enforcement powers and come to the assistance of the court. The Genocide Convention appears to 
envisage this possibility when it provides that, "Any Contracting Party may call upon the competent 
Organs of the United States to take such action under the Charter of the United Nations as they 
consider appropriate for the prevention and suppression of acts of genocide ..." [FN13] 

In any event, most members of the Task Force would not favor limiting the Jurisdiction of a 
permanent international criminal court solely to war crimes. A m^yority of the Task Force, however, 
favors including serious violations of international humanitarian law within the court's subject 
matter Jurisdiction. Article 22 of the draft Statute prepared by the ILC's Working Group would 
confer Jurisdiction on the court over such crimes. 

In Sharp contrast to suggestions for limited Jurisdiction is the so-called "Chinese menu" approach. 
Under this approach, state A might agree to the court 's Jurisdiction over one crime, say, drug 
trafficking, while state B might agree that the court could exercise Jurisdiction over a lengthy list of 






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international crimes (twenty-four, •481 according to one count). A draft Statute introduced by the 
Special Rapporteur of the International Law Commission at the beginning of the Commission's 1993 
Summer session is an especially open-ended manifestation of this approach, since it provides that, 
"[plending the adoption of a criminal code relevant to its jiuisdiction, oflfenses within the Jurisdiction 
of the court shall be defined in special treaties between states parties, or in a unilateral Instrument 
of a State." [FN14] This approach might allow the court to exercise Jurisdiction over such 
questionable "crimes" as "economic aggression," "colonial domination or other forms of alien 
domination," etc. 

Altematively, an approach that seems to have increasing support in general and one that is 
favored by a mggority of the members of the Task Force is to limit the menu ifrom which states could 
select. That is, the court's Jurisdiction would include only those crimes covered by international 
Conventions that are widely accepted by states representing all of the world's msgor legal Systems 
and that have an extradite or prosecute Obligation. 

Article 22 of the ILC working group's draft Statute adopts this approach and includes genocide; 
grave breaches of the fo\u- 1949 Geneva Conventions for the Protection of Victims of Armed Conflict, 
as well as of additional Protocol I to the 1949 Geneva Conventions; the unlawfiil seizure of aircraft; 
crimes covered by the Convention for the Suppression of Unlawful Acts against the Safety of Civil 
Aviation; apartheid; attacks against intemationally protected persons, including diplomatic agents; 
hostage taking; and crimes covered by the Convention for the Suppression of Unlawful Acts against 
the Safety of Maritime Navigation and by the Protocol for the Suppression of Unlawful Acts against 
the Safety of Fixed Platforms located on the Continental Shelf. Article 22 does not include torture. 
In the Task Force's view, this is an unfortunate Omission, and should be corrected. 

To be sure Article 21 of the draft Statute calls for a review Conference to be held after the Statute 
has been in force for at least five years to consider, inter alia, "possible revisions or additions to the 
list of crimes contained in article 22 by way of a Protocol to this Statute or other appropriate 
Instrument." Unfortunately, Article 21 expressly refers to the Code of Crimes against the Peace and 
Security of Mankind as a possible addition to the list. In light of the strongly negative reactions this 
code has engendered, the Task Force would suggest that this reference be deleted. 

As explained by the ILC working group's commentary: 

Part 2 of the draft Statute, dealing with Jurisdiction and applicable law, is the central core of 
the draft Statute. From the point of view of the crimes which may give rise to the court's 
Jurisdiction, articles 22 to 26 lay down, basically, two Strands of Jurisdiction, •482 which are 
based on a distinction drawn by the Working Group between treaties which define crimes as 
international crimes and treaties which merely provide for the suppression of undesirabie 
conduct constituting crimes imder national law. An example of the first category of treaties is 
the International Convention against the taking of Hostages of 17 December 1979. Examples of 
the second category of treaties are the 1963 Tokyo Convention on OflFences and Certain Acts 
Committed on Board Aircraft (14 September 1963) as well as all treaties dealing with the 
combating of drug-related crimes, including the 1988 United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988). [FN15] 

The working group's commentary further explains that the "two main criteria which led to 
considering the crimes contemplated in the treaties listed in article 22 as crimes under international 
law were (a) the fact that the crimes are themselves defined by the treaty concemed in such a way 
that an international criminal court could apply a basic treaty law in relation to the crime dealt with 
in the treaty and (b) the fact that the treaty created, with regard to the crime therein defined, either 
a System of universal Jurisdiction based on the principle aut dedere aut judicare or the possibility 






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that an international criminal tribunal try the crime, or both." [FN16] Under these two criteria, in 
the view of a m^gority of the working group, drug related crimes, including the crimes referred to in 
the 1988 United Nations Convention against niicit Traflfic in Narcotic Drugs and Psychotropic 
Substances, did not qualify for inclusion in Article 22. 

In Article 23 of the draft Statute, the ILC working group has set forth three alternative methods by 
which States might accept the coiirt's Jurisdiction over the crimes listed in Article 22. Under 
alternative A a state party to the court's Statute could "by declaration lodged with the Registrar, at 
any time accept the Jurisdiction over one or more of the crimes referred to in article 22." A state 
would not confer Jurisdiction over certain crimes on the court merely by becoming a party to the 
court's Statute. Rather, the state would "opt in" to the court's Jurisdiction by filing a special 
declaration to that effect. Alternatives B and C, set forth in Article 23, would have states 
automatically confer Jurisdiction on the court over the crimes listed in Article 22 simply by becoming 
parties to the court's Statute, subject to the right of such states to "opt out" of the court's Jurisdiction 
by excluding certain crimes. The working group has recommended that the International Law 
Commission transmit all three alternatives to the General Assembly to obtain some guidance as to 
which System the Assembly would favor. 

The Task Force would favor an "opting in" System along the lines set forth in alternative A. This 
approach would be the most flexible and the one most commensurate with the concept that the court 
would serve as a supplemental forum to national courts for the prosecution of international crimes. 
It also would •483 be more likely to encoiurage widespread acceptance of the court's Statute than a 
System that would require states aflfirmatively to exclude certain crimes from the court's Jurisdiction. 

Elsewhere, the ILC working group's draft Statute would confer a much broader subject matter 
Jurisdiction on the court. Specifically, Article 26 provides: 

Special acceptance of Jurisdiction by States in cases not covered by Article 22 

1. The Court also has Jurisdiction imder this Statute in respect of other international crimes not 
covered by Article 22 where the State or States identified in paragraph (3) notify the Registrar in 
writing that they specially consent to the Court exercising, in relation to that crime, Jurisdiction 
over specified persons or categories of persons. 

2. The other international crimes referred to in paragraph (1) are: 

(a) a crime under general international law, that is to say, under a norm of international law 
accepted and recognized by the international Community of States as a whole as being of such a 
fundamental character that its violation gives rise to the criminal resix)nsibility of individuals; 

(b) crimes luider national law, such as drug-related crimes, which give efifect to provisions of a 
multilateral treaty, such as the 1988 United Nations Convention against niicit Traflfic in 
Narcotic Drugs and Psychotropic Substances, aimed at the suppression of such crimes and which 

having regard to the terms of the treaty constitute exceptionally serious crimes. 

/ 

3. The State or States referred to in paragraph (1) are: 

(a) in relation to a crime referred to in paragraph (2Xa), the State on whose territory the suspect 
is present, and the State on whose territory the act or Omission in question occurred; 

(b) in relation to a crime referred to in paragraph (2Xb), the State on whose territory the suspect 
is present and which has Jurisdiction in conformity with the treaty to try the suspect for that 



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In its commentary to Article 26 the ILC working group notes that paragraph 2(a) of Article 26 is 
"intended to cover international crimes which have their basis in customary international law and 
which wonld otherwise not fall within the court's Jurisdiction ratione materiae such as aggression, 
which is not defined by treaty, genocide, in the case of States not parties to the Genocide Convention, 
or other crimes against humanity not covered by the 1949 Geneva Conventions." [FN17] The 
commentary further suggests that it is "inconceivable" that, "at the present stage of development of 
international law, the international Community would move to create an international criminal court 
without including crimes such as those mentioned above, under the court's Jurisdiction." 

"Inconceivable" or not, the commentary also reports that some members of the working group 
opposed Paragraph 2(a). As an alternative, these members proposed deleting paragraph 2(a) and 
covering the matter by Article 25 of the draft Statute, which would allow such crimes to be referred 
to the court by the Security Coimcil. 

♦484 A megority of the Task Force would favor this alternative. In this view paragraph 2(a) of 
Article 26 is too open-ended and subject to misuse. Subjecting the court's Jurisdiction over crimes 
luider general international law to a condition precedent of referral to the court by the Security 
Coiuicil would appear to be a satisfactory compromise that woxüd allow the punishment of crimes 
against humanity not covered by treaty yet minimize the risk that the court would exercise 
Jurisdiction on the basis of political considerations. It would also be incumbent upon the Security 
Council, before referring the alleged ofFense to the coiui;, to ensure that the crime in question was 
defined under general international law with the kind of precision necessary to protect fundamental 
human rights of an accused. The final decision on the existence and definition of the crime under 
general international law, as well as the guilt or innocence of the accused, would, of course, be left to 
the court. 

A minority view in the Task Force would favor paragraph 2(a) of Article 36 in its present form. In 
this view a preliminary Screening by the Security Council would be unnecessary and imdesirable for 
the foUowing reasons. First, the United States has historically defined some criminal activity by 
reference to the law of nations, and therefore it should have no difficulty in supporting a treaty that 
includes such a definition, particularly when the definition refers to the "fundamental" character of 
the norm. The clearest example in U.S. municipal law is piracy, which has been defined since the 
Act of 1790, c. 36, in accord with the "law of nations." 

Second, the Security Council is a political organ of the United Nations. Other than the weight its 
actions may have in establishing custom or state practice, it should not be cast in the role of limiting 
the jiuisdiction of the court. In Nicaragua v. United States, the International Court of Justice was 
(in efifect) asked to defer from exercising Jurisdiction to negotiations and to the Security Council. The 
Court rejected this view, and upheld its duty to say what international law requires in a concrete 
litigated case. 

Third, there cannot any longer be a principled objection by Americans to the use of "fundamental 
norms. " The United States for many years took the position that there was no such thing as jus 
cogens and that therefore it could not be boimd by a customary norm to which it has not manifested 
its assent during the formative period of the norm. However, the Vienna Convention on the Law of 
Treaties, in Article 53, has now put that matter to rest. 

Fourth, if there are fundamental norms, and if judicial tribimals are best-suited to finding and 
applying them, the draft Statute of the ILC working group is surely preferable. It essentially puts 
the law-finding process where the Statute of the International Court of Justice puts it--in the hands 



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of judges. The process for finding norms could be spelled out, perhaps borrowing from the IC J 
Statute. No defendant could object on nulla poena sine lege grounds, if the norm were subjected to 
the kind of rigorous analysis called for by the limitation to "fundamental" principles. 

*485 The crime of aggression is a special case, and the draft Statute treats it as such. Under 
Article 27 a person could not be charged with the crime of aggression luüess the Security Coimcil had 
first determined that the "state concemed had committed the act of aggression which is the subject of 
the Charge." Such a Provision would be a significant safeguard against politically motivated 
agendas. 

There remains, however, the more fundamental question as to whether the concept of aggression is 
an appropriate vehicle for the imposition of criminal liability. A magority of the Task Force is of the 
opinion that it is not. The only oflficially adopted definition of aggression is that contained in the 
General Assembly resolution adopted in 1974. Article 15 of the International Law Commission's 
Draft Code of Crimes Against the Peace and Security of Mankind largely tracks the Assembly's 
definition. Both govemments and private scholars, however, in commenting on Article 15, have 
contended that it is inappropriate for a penal code to use an Instrument intended to serve as a guide 
to a political organ (the Security Coiuicil) as the basis for defining criminal liability. Even as a guide 
to the Security Council, the General Assembly*s resolution is controversial. As the basis for 
imposing criminal liability, it arguably would violate fundamental rights of an accused. [FN18] 

Paragraph 2(b) of Article 26 also raises some complex issues, as indicated by the report in the 
commentary on that article that some members of the working group expressed serious reservations 
about it. [FN19] The Task Force shares these reservations. Paragraph 2(b), as well as the 
commentary thereto, primarily addresses drug-related crimes. The Provision, however, is not limited 
to drug trafificking and speaks in terms of "crimes under national law" which "give effect to 
provisions of a multilateral treaty." From the commentary it appears that the primary test for 
application of this Provision is whether the multilateral treaty itself inadequately defines the crime, 
thus requiring reference to national law. This would leave the subject matter Jurisdiction of the 
court open-ended, especially since, under paragraph 3(b) of Article 26, only the consent of the State 
on whose territory the suspect is present and which has Jurisdiction luider the treaty to try the 
suspect for that crime in its own courts woxild be required. As discussed later in this report, the 
application of national law by a permanent international criminal court is a controversial 
proposition. Rather than having the court apply, for example, the laws on drug trafficking of a 
nimiber of states, the Task Force would suggest tiiat the crime of drug trafificking be defined in the 
coiui's Statute. The same should be done with respect to any other crime defined imprecisely by a 
multilateral treaty but deemed appropriate for inclusion within the court's subject matter 
Jurisdiction. 

♦486 B. PERSONAL JURISDICTION 



The issues here are which state or states should have to consent for the court to have Jurisdiction 
over a particular accused and what form this consent should take, i.e., should the consent be general 
or on a case-by-case basis? Considering the latter question first, it appears that the consent would be 
on a case-by-case basis. In other words it would not necessarily foUow that merely because a state 
was a party to the court's Statute and had agreed to the court exercising subject matter jiuisdiction 
over the alleged crime that state thereby had also agreed to the court exercising personal Jurisdiction 
over a particular accused. 

As to which State or states should have to consent for the court to havo Jurisdiction over a 
particular accused, the first report of the Task Force, as well as the draft Statute of the ELC's Special 
Rapporteur, [FN20] would require both the consent of the state where the crime was conmiitted and 



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of the State of nationality of the acciised. In support of this approach the ILC's Special Rapporteur 
notes that while the territorial principle is the primary basis for a State exercising personal 
Jurisdiction over an accused, the nationality principle (i.e., the nationality of an accused) is also 
widely accepted. He then contends, "This draft, if it is not to be totally lacking in realism, cannot 
exclude one of the two rules in favor of the other. For this reason, Jurisdiction should be conferred 
both by the State in whose territory the crime was committed and by the State of which the 
perpetrator is a national." [FN21] 

The working group of the International Law Commission, however, adopted a different approach. 
Article 24 of its draft Statute provides: 

Jurisdiction of the Court in relation to Article 22 



1, The Court haus Jurisdiction imder this Statute in respect of a crime referred to in article 22 
provided that its Jurisdiction has been accepted under article 23: 

(a) by any State which has jiuisdiction imder the relevant treaty to try the suspect of that 
crime before its own courts, 

(b) in relation to a suspected case of genocide, by any State party to the Convention on the 
Prevention and Punishment of the Crime of Genocide, of 9 December 1948. 

2. If the suspect is present on the territory of the State of his nationality or of the State where 
the alleged ofifence was committed, the acceptance of the Jurisdiction of the Court by that State is 
also required. 

Under the approach of the draft Statute, the consent of both the state where the crime was 
committed and the state of nationality of the accused would never be required. The consent of either 
State would be required only when the accused was in one or the other of the two states. Absent such 
presence only the consent of any state which had Jurisdiction luider the relevant treaty to try the 
accused would be required. 

*487 In its commentary on Article 24 the working group explains its approach to suspected crimes 
of genocide: 

A special mention is made of the Genocide Convention in paragraph l(h) (sie) because unlike 
other treaties listed in article 22, the Genocide Convention is not based on the principle "aut 
dedere aut judicare" but on the principle of territoriality. Article VI of said Convention provides 
that persons charged with genocide or any of the other acts enimierated in the Convention shall 
be tried by a competent tribunal of the State in the territory of which the act was committed. 
However, as a coimterpart to the non-inclusion of the principle of imiversality in the Convention, 
article VI also provides that the above-mentioned persons could also be tried by such 
international penal tribiuial as may have Jurisdiction with respect to those contracting parties 
which shall have accepted its Jurisdiction. This can be read as an authority by States parties to it 
who are also parties to the Statute to allow an international criminal court to exercise 
Jurisdiction over an accused who has been transferred to the Coiut by any State. The travaux of 
article VI support that inteipretation. [FN22] 

For its part, the Task Force also has reexamined this issue, and a majority of its members would 
favor an approach where the court could exercise personal Jurisdiction if only the state with custody 
over an accused gave its consent, provided that the state of custody itself would have a b£isis imder 
the pertinent international Convention for exercising jiuisdiction. 



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The rationale behind this approach is that it would be most consistent with the view that the court 
would serve primarily as an alternative forum to national courts for prosecution of the crimes 
covered by the international Conventions. Under these Conventions the nnderstanding is that 
normally the State where the crime was committed or the State of nationality of the accused has the 
primary interest in prosecution, and they are obligated to establish Jurisdiction over the ofifense 
under their domestic law. For its part the State of custody (assiuning it is not the territorial state or 
State of nationality) is obliged to establish its Jurisdiction over the ofifense so it can submit an accused 
to prosecution if it does not extradite him to either the territorial State or the state of nationality. 
Since neither the territorial state, nor the state of nationality, nor the state of custody requires the 
consent of any other state to submit an accused to prosecution before its national courts, such consent 
should not be required for such states to submit an accused to an international criminal court. 

The key question regarding "realism" may be whether states parties to the court's Statute would 
insist on retaining the right to decide, on a case-by-case basis, whether to permit an international 
criminal court to exercise Jurisdiction over their nationals. Besides this pragmatic consideration, an 
argument in favor of requiring the consent of the victim state and of the state of nationality is that 
these are the states with the primary interest in prosecuting the accused and they, rather than an 
international criminal court, should be permitted to do so if they ^488 wish. Also, these states may 
need some time to investigate the alleged crime in order to decide whether they wish to prosecute, 
and this investigative process should not be undermined by a precipitous decision by the state of 
custody to refer the case to an international criminal court. 

By contrast, if the Security Council refers a case to the international criminal court, there should 
be no requirement of consent to the court's Jurisdiction by any state party to the Statute. In such a 
case the Security Council would have determined that the crimes in question constituted a threat to 
international peace and security and would be acting pursuant to its mandatory powers under 
Chapter Vn of the United Nations Charter. Reference of the case to the permanent international 
criminal court would be in lieu of the Coimcil itself establishing an ad hoc tribunal along the lines of 
the tribunal for former Yugoslavia. 

C. APPLICABLE LAW 

The primary issues in this area seem to be twofold: (1) May the court apply the international 
Conventions that cover the crimes within the court's Jurisdiction directly, or should the court's Statute 
itself define these crimes? (2) To what extent, if at all, should the court apply national law? 

As noted above, the ILC's working group, under Article 22 of its draft Statute, would have the court 
apply the Conventions listed in that article directly. The acceptability of the court doing so would 
depend on whether these Conventions define the crimes they cover with the precision necessary to 
meet due process and similar requirements of national criminal justice Systems. If they do not, the 
court's Statute should define these crimes. 

The ad hoc tribunal being established by the Security Council, "[i]n determining the terms of 
imprisonment ... shall have recourse to the general practice regarding prison sentences in the courts 
of the former Yugoslavia." [FN23] With respect to the permanent tribunal, as noted above, Article 
26 of the ILC working group's drafit Statute would grant the court Jurisdiction over certain crimes 
under national law, which would require the court to apply the national laws of various states. As a 
coroUary, Article 28(c) of the working group's draft Statute would direct the court to apply, "as a 
subsidiary source, any applicable rule of national law" and Article 41(c) would prohibit, \mder the 
principle of legality (nullxun crimen sine lege), finding an accused guilty , "in the case of a prosecution 
under article 26(2)(b), unless the act or Omission constituted a crime imder the relevant national law, 
in conformity with the treaty, at the time the act or Omission occurred." 



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The draft Statute also envisages the court referring to national law to ascertain the type of oath or 
declaration witnesses shall make before testifying (Article 48(2)), to determine the length of a term of 
imprisonment or the amount of a fine to be imposed for a crime (Article 53), and to specify laws as to 
pardon, ^489 parole or commutation of sentence (Article 67). The Task Force is of the opinion, 
however, that this would create too much uncertainty or result in unequal justice. It is also doubtfiil 
whether the judges on an international criminal court would be competent to Interpret and apply the 
law of a great variety of legal Systems. These subjects should accordingly be covered by the court's 
Statute or by its rules of procedure or evidence. 

in. Nature and Structure of the Court 

Because the United Nations has decided that a Statute for a permanent international criminal 
court should be drafted, it may be assumed that the court would be established imder UN auspices, 
either as a judicial organ of the United Nations or in association with the Organization. As such, the 
court would be global rather than regional in orientation. It may also be assumed that the court 
would be established by treaty rather than by Seciuity Council or General Assembly resolution. 
Such a treaty might be drafted in a separate diplomatic Conference called for that purpose or, more 
likely, through the UN General Assembly and its subsidiary organs. 

What is as yet far from clear is the structure of the coiurt and, perhaps most important, what 
selection process would be utilized to ensure the professional qualifications of the judges and to avoid 
the risk of politicization of the tribunal. As noted above in the discussion on Jurisdiction and 
applicable law, decisions on the scope of the court's subject matter Jurisdiction may enhance or 
diminish the risk of politicization of the court. Other factors will also be imix)rtant determinants. 

Perhaps the most important of these factors are the qualifications required for the judges and the 
method of their selection. The ILC working group's draft Statute would require that the judges be 
"persons of high moral character, impartiality and integrity who possess the qualifications required 
in their respective countries for appointment to the highest judicial oflfices. In the overall 
composition of the court, due account shall be taken of the experience of the judges in criminal law, 
international law, including international hvunanitarian law and human rights law. " [FN24] On the 
whole this Statement of the qualifications of judges appears satisfactory. The Task Force would 
recommend adding a requirement that the judges have previous experience in the conduct of 
criminal trials or appeals in national courts. 

The primary concem regarding the selection process for judges on an international criminal 
tribunal is that it be designed to minimize the risk of politicization of the bench. Under the Statute 
of the ad hoc tribunal being established by the Security Coxmcil, the judges would be elected by the 
General Assembly from a »490 list submitted by the Security Council. [FN25] The CounciFs 
preparation of the list would be a significant safeguard against the selection of judges for political 
purposes. This safeguard would be absent, however, with respect to a permanent court not 
established by Seciuity Council resolution. 

Under Article 7 of the ILC working group's draft Statute, eighteen judges would be elected by 
m^gority vote of the states parties to the Statute. Fach state party would be able to nominate one 
person, and election of the judges would be by secret ballot. No two judges could be nationals of the 
same state. Judges would hold office for twelve years and would not be eligible for reelection. The 
Prohibition against reelection, which is an unusual Provision for an international tribiuial, is 
designed to minimize the possibility that a judge would render a judgment on political groimds to 
enhance his reelection chances. In case of a judicial vacancy, under Article 8 of the Statute, a 
replacement judge would be elected in accordance with the same selection procedures. Judges elected 
to fill a term that had less than four years to run would be eligible for reelection. 



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There was some sentiment in the Task Force in favor of a reqxiirement, as a safeguard against the 
risk of a politicized tribunal, of a two-thirds or even a three-fourths vote by states parties to the 
court*s Statute for a judge to be elected. Other members would favor a simple m^gority vote 
requirement. 

There was also some concem in the Task Force that, at least in its initial stages, the bench not be 
too large and unwieldy. Some members of the Task Force believe eighteen judges might be too many 
for a tribimal that woiüd represent a radical experiment in international ac^judication. Some 
alternative numbers suggested include five to nine judges for the trial Chambers and three to five for 
the appellate Chamber. Allowing each state party to nominate one person to be a judge might result 
in a large number of candidates. If the mmiber of these candidates elected to be judges was small, 
this would enhance the prospects for a highly competent and professional bench. 

As to the structure of the court, Article 5 of the working group's draft Statute provides that the 
Organs of the tribimal shall consist of the court, or judicial organ, a Registry, and a Procuracy. The 
judges of the court, imder Article 10, would elect, by an absolute mcgority, a President as well as a 
first and second Vice President. The President and the two Vice Presidents would constitute the 
Biu-eau of the court and would have administrative and other responsibilities under the Statute. 

Pursuant to Article 37 of the draft Statute cases would be tried by Chambers composed of five judges 
each. No judge fi:*om a complainant state or firom a state of which an accused is a national could be a 
member of the Chamber dealing with that particular case. Under Article 11 an accused could request 
the disqualification of a judge on the grounds of lack of impartiality or conflict of interest. *491 
Decisions regarding disqualification of a judge would be made by an absolute mgjority of the 
Chamber concemed, including the President and two Vice Presidents. The challenged judge would 
not be able to take part in the decision. 

The appeals Chamber envisaged in Article 56 of the draft Statute would not be composed of judges 
who serve solely in an appellate capacity. Rather, in the event of an appeal, the Bureau would 
constitute an appeals Chamber consisting of seven judges who did not take part in the appealed fi^om 
judgment but who otherwise would serve as trial judges. The Task Force would suggest that it would 
be preferable to have an appeals Chamber composed of judges serving in an appellate capacity only. 
Judges normally serving in a trial capacity might have diflficulty overruling a decision by judges 
with whom they normally would serve as colleagues. 

Article 4 of the draft Statute provides that the court would be "a permanent tribunal" but would sit 
only " when required to consider a case submitted to it. " The commentary to article 4 indicates that 
this limitation "reflects the virtues of flexibility and cost-reduction" but notes also that some 
members of the working group believed that it was "incompatible with the necessary permanence, 
stability and independence of a true international Criminal Tribunal. " [FN26] The Task Force is 
divided on this issue and would note that, in any event, the terms of Article 4 do not appear to 
preclude the court fi-om evolving to the point where it would function on a fiill-time basis. 

There is an issue as to what other activities that part-time judges might pursue would be 
incompatible with their judicial duties. Article 9 of the draft Statute provides that the judges shall 
be independent and that they shall not engage "in any activity which interferes with their judicial 
fiinctions, or which is likely to affect confidence in their independence. In case of doubt the Coxirt 
shall decide." As an example of an activity that might compromise a judge's independence, the 
commentary to Article 9 cites Service as a member or oflficial of the executive brauch of govemment. 
[FN27] The Task Force would suggest that any kind of govemment Service would be incompatible 
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Lastly, there is thc question of removal of judges for cause. The goal here would be to ensure the 
independence of judges firom removal for political reasons while allowing them to be removed for 
malfeasance or misfeasance or inability to perform their fimctions, e.g., in the case of illness. Article 
15 of the draft Statute provides for the removal of judges if, "in the opinion of two thirds of the judges 
of the court, they have been found guilty of proven misconduct or a serious breach of this Statute." 
By contrast, Article 18 of the Statute of the International Court of Justice allows for the dismissal of 
a judge only if "in the unanimous opinion of the other members, he has ceased to fulfill the required 
♦492 conditions." (Emphasis added.) The ICJ's Statute arguably gives the judges too much 
protection, since it makes it close to impossible to remove judges even in the most compelling of 
circumstances. The two-thirds vote requirement of the draft Statute would seem the better approach. 

Article 12 of the draft Statute would govem the election and functions of the Registrar, who would 
be the principal administrative officer of the court. By its terms the judges on the court, on the 
proposal of the Bureau, would elect, by an absolute mjgority and secret ballot, the Registrar for a 
seven-year term, with the possibility of reelection. The Bureau would appoint or authorize the 
appointment of such other stafif of the Registry as might be necessary. The stafiF of the Registry 
would be subject to stafiF regulations drawn up by the Registrar. The Registrar would be available on 
a fiill-time basis, but with the permission of the Bureau could exercise other fimctions within the 
United Nations System that were consistent with the duties of a Registrar. Under the draft Statute 
the Registrar would perform such functions as notifications and reception of declarations of the 
court's Jurisdiction. 

It appears that the Registry would Service both the judges of the court and the Procuracy. As 
pointed out by the Report of the War Crimes Task Force, "a shared Registry may interfere to a 
degree with the impartiality and legitimacy of the Tribimal. " [FN28] Accordingly , it would appear 
desirable to ensure that the Registry's stafiF is divided into separate stafiFs for the court and the 
Procuracy, at least for those jwsitions which are assigned confidential Information, or which could be 
subject to manipulation. 

Under Article 13 of the draft Statute, the Procuracy would be composed of a Prosecutor, who would 
be head of the Procuracy, a Deputy Prosecutor, and such other qualified stafiF as might be required. 
The Prosecutor and the Deputy Prosecutor would be required to be of "high moral character and 
possess the highest level of competence and experience in the conduct of investigations and 
prosecutions of criminal cases. " They would be elected, on a standby basis, by a mgjority vote of the 
States parties to the Statute firom among candidates nominated by the states parties for five-year 
terms and would be eligible for reelection. The responsibilities of the Prosecutor would include, upon 
receipt of a complaint, investigation of the alleged crime and prosecution of accused persons for 
crimes within the Jurisdiction of the court. The Prosecutor would not be able to act in relation to a 
complaint involving a person of the same nationality, and the Procuracy would be required to act 
independently and not to seek or receive Instructions firom any govemment or any source. Where the 
Prosecutor is unavailable or disqualified, the Deputy Prosecutor would act as Prosecutor. 

Under Article 15(2) of the draft Statute, the Prosecutor, the Deputy Prosecutor, or the Registrar 
could be removed fi:-om oflfice by a two-thirds vote of the judges ^493 of the court. Permitting the 
removal of the Prosecutor, the Deputy Prosecutor, or the Registrar by a two-thirds vote of the judges 
arguably is inconsistent with the independence these ofificers should ei\joy in performing their 
fimctions for the tribunal. An alternative approach would be to require a two-thirds vote of the 
states parties to the Statute for removal. 

Under Article 44 of the draft Statute, defendants would have the right to court appointed coimsel. 
The draft Statute does not, however, establish a separate Office of Defense Counsel. A similar failure 
of the Statute for the tribunal for former Yugoslavia to establish such an oflfice was critically noted by 






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the report of War Crimes Task Force. [FN29] The reasoning of the War Crimes Task Force would 
appear to apply a fortiori to a permanent international criminal court, in light of the lack of the time 
pressure attendant upon establishment of a permanent tribxinal. 

IV. Pre-Trial and Trial Procedures 

A. PRE-TRIAL 



As a preliminary matter, there is the issue as to who or what should be able to submit a case to a 
permanent international criminal court. In its first report the Task Force suggested that only states 
should have the right to Institute proceedings before the court. [FN30] Some have gone fiirther and 
suggested that only states that are parties to the court's Statute and that have suflficient interest in 
the case should be permitted to submit a complaint to the court. Under this approach, a state would 
have sufificient interest in the case only if it had jiuisdiction over the ofFense xmder the provisions of 
the particular Convention or Conventions that served as the basis for the court's subject matter 
Jurisdiction. 

A crucial step in the pre-trial process is the investigative stage. It is clear that a permanent court, 
to an even greater extent than the ad hoc tribunal, would require assistance from national 
authorities in conducting investigations of crime. The permanent court, however, imlike the ad hoc 
tribunal, would normally not have the coercive Chapter Vn enforcement powers of the Security 
Council behind it to ensure the Cooperation of national authorities. Rather, the Obligation of 
national authorities to cooperate in investigations would depend upon provisions in the co\irt*s 
Statute or, altematively, in treaties on mutual assistance in criminal matters concluded between the 
court and states not parties to the court's Statute. 

An important component of such mutual assistance agreements would be provisions that would 
ensure that the investigation by national authorities would be conducted and evidence obtained in 
accordance with procedures that would protect the rights of an accused, e.g., the accused or his 
counsel would be able to cross examine a witness testifying before national authorities. Recently 
concluded *494 U.S. and other mutual assistance treaties, as well as the UN's Model Treaty on 
Mutual Assistance in Criminal Matters, may serve as a guido to this end. [FN31] 

Some key issues conceming investigation include, who would be responsible for investigating the 
alleged crime and what safeguards should be employed to ensure that evidence obtained through the 
investigation would be admissible at trial. 

Article 29 of the ILC Working Group's draft Statute provides: 

Complaint 

Any State Party with Jurisdiction over a particular crime xinder the terms of an international 
Convention and which has accepted the Jurisdiction of the Court pursuant to article 23 of the 
Statute with respect to the crime or other state with such Jurisdiction and which has accepted the 
Jurisdiction of the Court pursuant to article 23, or the Security Council pursuant to article 25; 
may by Submission to the Registrar bring to the attention of the Court in the form of a complaint, 
with such supporting documentation as it deems necessary, that a crime, within the Jurisdiction 
of the Court, appears to have been conmiitted. 

Under the ILC working group's approach, any state including states not parties to the coiirt's Statute, 
with Jurisdiction over the ofifense under the particular Convention concemed, would be permitted to 
submit a complaint to the coxut. In addition, as noted previously in this report, the Seciuity Coiuicil 



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would be able to submit a complaint regarding any crime within the subject matter Jurisdiction of the 
couri;. 

According to the commentary on Article 29, [FN32] the working group considered limiting resort to 
the coxirt to states pari;ies to the Statute. It opted, however, instead for an approach that would 
promote the goal of the international Community to establish a universal mechanism for prosecuting, 
punishing and deterring international crimes wherever they may occur. As to the role envisaged for 
the Security Council, the working group pointed to the primary responsibility of the Council in the 
maintenance of international peace and security under the United Nations Charter and suggested 
that it would be preferable for the Council to be able to initiate criminal proceedings with respect to 
international crimes threatening the peace instead of itself creating an ad hoc tribimal along the 
lines of the tribunal it is in the process of establishing for former Yugoslavia. 

The Task Force has reconsidered its earlier position and now would support the approach proposed 
by the working group. In its commentary on Article 29 the working group reports that one member 
suggested that the Prosecutor should be able to initiate an investigation in the absence of a 
complaint if it appeared that a crime apparently within the Jurisdiction of the court might otherwise 
not be properly investigated. The mggority of the working group, however, believed *495 that "the 
investigation and prosecution of the crimes covered by the Statute should not be undertaken in the 
absence of the backing of a State or the Security Council, at least not at the present stage of 
development of the international legal System." [FN33] The Task Force agrees with the majority 
view. Moreover, it would note that the working group approach avoids the oflficious intermeddler 
Problem, i.e., a complaint filed by a State which would not have Jurisdiction to prosecute the crime 
imder the applicable international Convention. 

Under Article 30 of the working group's draft Statute, the Prosecutor, upon receipt of a complaint, 
is required to initiate an investigation, unless she determines "that no possible basis exists for action 
by the Court. " The Prosecutor is directed to assess the information obtained from the investigation 
and to decide whether there is sufificient basis to proceed with a prosecution. Significantly, if the 
Prosecutor decides not to proceed, the Bureau is empowered to review this decision and, if it 
disagrees, to direct the Prosecutor to commence a prosecution. 

The commentary to Article 30 reports that some members of the working group believed that 
judicial review of the Prosecutor's decision not to proceed with the case would be inconsistent with 
the independence of the Prosecutor and the doctrine of prosecutorial discretion. These members 
fiirther believed that requiring a Prosecutor to proceed with a prosecution would create the risk of an 
ineflfectual prosecution. [FN34] The Task Force agrees with this assessment. The remedy for 
consistent refiisal on the part of a Prosecutor to prosecute when an objective analysis would seem to 
call for prosecution would be removal of the Prosecutor. Absent such refusal, the final decision as to 
whether to prosecute should rest with the Prosecutor. 

To facilitate the investigation, the Prosecutor would have the power to "request the presence of and 
to question suspects, victims and witnesses, to collect evidence, including the disclosure and 
production of any documentation or exhibits relevant to the complaint, and to conduct on-site 
investigations." [FN35] The Prosecutor could also, "as appropriate, seek the Cooperation of any State 
in a Position to provide assistance" and could request the court to "issue such subpoenas as may be 
required, including for the arrest and detention of a suspect. " [FN36] 

For their part, under Article 58, paragraph 1 of the draft Statute, states parties would have the 
general Obligation to "cooperate with the Tribunal in connection with criminal investigations 
relating to, and proceedings brought in respect of, crimes within the Court's Jurisdiction. " Under 
Paragraph 2 of Article 58 states parties which had also accepted the Jurisdiction of the court with 



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respect to the particular crime woiild be required to respond without delay to a request or order 
issued by the court with respect to such measures as the location of persons, the »496 taking of 
testimony, the production of evidence, the Service of documents, the arrest or detention of persons, or 
the siirrender of the accused. 

The scope of the Obligation in paragraph 1 of Article 58 is unclear. Moreover, it is questionable 
whether states parties that have not accepted the Jurisdiction of the court with respect to the 
particxilar crime \inder investigation or prosecution should be luider any legal Obligation to cooperate 
with the court. Rather, it would seem more appropriate to include such states parties within the 
terms of Article 59 of the draft Statute, which calls for the voluntary Cooperation of states not parties 
to the Statute "on the basis of comity, a unilateral declaration, an ad hoc arrangement or other 
agreement with the court. " 

If an investigation includes questioning of a suspect, under paragraph 4(a) of Article 30 of the draft 
Statute, he would be entitled to "be informed of the right to remain silent without such silence being 
a consideration in the determination of guilt or innocence, and of the right to have the assistance of 
counsel of the suspect's choice or, in the absence of means to retain coxmsel, to have counsel and legal 
assistance assigned to the suspect by the court." In addition the suspect could not be compelled to 
testüy or to confess guilt and, if necessary, would be provided with competent interpretation Services 
and translations of documents. [FN37] These are crucially important safeguards because neither 
international human rights law nor national laws adequately guarantee the right to counsel at all 
stages of the proceeding. Often the right to counsel attaches only at the trial stage. 

Another important safeguard for an accused is the right to pre-trial release in appropriate cases. 
Article 35 of the draft Statute provides for possible release on bau if the court decides such release is 
warranted. The commentary to Article 35 suggests that, considering "the serious nature of the 
crimes under this Statute," release on bail would be the exception rather than the rule. [FN38] If the 
court decides that an accused should be detained, Article 35 would require the State on whose 
territory the seat of the court is estaWished to provide an appropriate place of detention as well as 
guards. 

lipon a determination that there is a sufiicient basis to proceed, under Article 31 of the draft 
Statute the Prosecutor would prepare an indictment setting forth the facts and the crime or crimes 
with which the accused is charged. This indictment, under Article 32 of the draft Statute, is to be 
submitted by the Prosecutor to the Bureau of the court (i.e., the President and two Vice Presidents). 
The Bureau, acting as an indictment Chamber, then determines whether a prima facie case exists. If 
it so determines, the Bureau afßrms the indictment and convenes a Chamber of the court to try the 
case. Upon request of the Prosecutor the Bureau would be empowered to issue "such orders and 
Warrants for the arrest, detention, *497 or surrender of persons, and any other Orders as may be 
required for the conduct of the trial." [FN39] 

For the Bureau to perform the function of an indictment Chamber wo\ild create m^or conflict of 
interest difficulties. Elsewhere in the draft Statute, the Bureau is responsible for convening the trial 
Chambers. [FN40] Moreover, and more significantly, the President or a Vice President would preside 
over an appeals Chamber. [FN41] Having afifirmed the indictment of an accxised, the President or a 
Vice Pl^sident could have great difiiculty in maintaining an impartial position on an appeal by an 
accused. Any court official who serves as a member of an indictment Chamber should not be a 
member of the trial Chamber that tries the case or of a Chamber that hears an appeal by an accused. 
Nor should such an official be involved in the establishment of such a trial Chamber or appeals 
Chamber. 

It should also be made clear in the court's Statute that the judge responsible for deciding whether 



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to confirm or dismiss an indictment would hold a hearing at which an accused person would have the 
right to respond to the charges and to enter a plea. FoUowing the civil law model, an accused shoiild 
have fiill access to the evidence in the prosecutor's file. He should ei\joy the right to be represented 
by counsel and to have coiinsel assigned and paid for if he is indigent. These rights are not spelled 
out in the draft Statute. 

Lastly, under Article 54 of the draft Statute, a State party may, at the request of the Prosecutor, 
designate persons to assist in a prosecution. Any persons so designated would serve at the direction 
of the Prosecutor and would not be permitted to seek or receive instructions from any govemment or 
source other than the Prosecutor. 

B. TRIAL PROCEDURES 

In discussions on an international criminal court, much has been made of the need (and the 
diflficulty) of reconciling the procedures of the common law and the civil law Systems. Such a 
reconciliation was accomplished, however, at the Nuremberg Trials, [FN42] and a similar eflfort is 
underway for the ad hoc tribunal being established by the Security Coimcil. There is, moreover, 
strong evidence of convergence between the two Systems currently taking place. [FN43] 

There has been support in some quarters for trials in absentia, but this would be inconsistent with 
Article 14 of the International Covenant on Civil and Political Rights, which provides that an 
accused shall be entitled to be tried in his presence. *498 Under paragraph (h) of Article 44 of the 
ILC working group's draft Statute, an accxised would have to be present at the trial, "imless the 
Court, having heard such submissions and evidence as it deems necessary, concludes that the absence 
of the accused is deliberate." According to the commentary on Article 44, the issue of trials in 
absentia gave rise to a variety of views in the Working Group: 

According to some members, this possibility [trials in absentia] was completely unacceptable 
firom the perspective of a fair trial which resi)ects the fundamental rights of the accused. 
Attention was drawn to article 14 of the United Nations Covenant on Civil and Political Rights 
which characterizes the right of the accused to be present at the trial as a minimum guarantee to 
which everyone shall be entitled, in fiill equality, in the determination of any criminal Charge. 
Furthermore, they feit that judgments by the Court without the actual possibility of 
implementing them might lead to a progressive loss of its authority and eflfectiveness in the eyes 
of public opinion. 

Other members were strongly in favour of drawing some distinctions, as regards, in particular, 
three possible situations: (a) the accused has been indicted but is totally unaware of the 
proceedings; (b) the accused has been duly notified but chooses not to appear before the Court; 
and (c) the accused has already been arrested but escapes before the trial is completed. Most of 
those members thought that while in hypothesis (a), an accused person should not be judged in 
absentia, in cases (b) and (c) a trial in absentia is perfectly in order, otherwise, the Court's 
Jurisdiction would, in fact, be subject to the "veto" of the accused. Furthermore, they feit that in 
such cases a judgment in absentia would in itself constitute a kind of moral sanction which could 
contribute to the Isolation of the accused wherever located and, possibly , to eventual capture. It 
was also argued in favour of trials in absentia that in criminal cases evidence should be 
eflfectively preserved by means of an expeditious trial. Such evidence might be lost if proceedings 
were delayed until such time as the accused could be brought before the Coiirt. One member feit 
that trials in absentia could be appropriate xmder (c) above but not imder (a) or (b). Another 
member also mentioned disruption of the trial by the accused, security reasons, or ill health of 
the accused, as valid grounds for pursiüng the trial without the presence of the accused. 






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Members in favoiir of trials in absentia also generally feit that such a judgment should be 
provisional in the sense that if the accused appeared before the Court at a later stage, then a new 
trial should be conducted in the presence of the accused. 

One member feit that if the Commission decided to allow trials in absentia, then this matter 
would need to be regulated in greater detail in the Statute. 

The Working Group invited the Commission and the General Assembly to comment on the 
question of trials in absentia. [FN44] 

A mßjority of the Task Force would favor trial in the absence of an accused only when an accused 
has been present at trial but escapes before the trial is completed. Under U.S. law such a proceeding 
is not considered to be an in absentia trial. 



Assuming no trials in absentia, it would be necessary, of course, to transfer an accused to the 
Jurisdiction of the court. Under paragraph 3 of Article 63 of the drafl Statute, surrender of an 
accused person to the court might take place *499 in three diflferent situations. First, a State party 
which has accepted the Jurisdiction of the court with respect to the crime in question would be 
obliged to take immediate steps to arrest and surrender an accused person to the coxurt. Second, a 
State party which is also a party to the relevant treaty defining the crime but which has not accepted 
the court's Jurisdiction over the crime would have to arrest and either surrender or prosecute the 
accused. Third, a State party which is not a party to the relevant treaty would have to consider 
whether its internal law would permit the arrest and surrender of the accused. Article 63 also 
provides that a State party "should, as f ar as possible," give priority to a request from the court for 
surrender over requests for extradition from other states. 

The commentary to Article 63 indicates that the working group decided to retum to the question 
whether a State party that decided not to surrender an accused to the court should also be allowed as 
an alternative to prosecution to extradite him to another state for prosecution. [FN45] The Task 
Force would suggest an affirmative answer to this question. Arguably, national prosecution is 
inherently more eflfective than trial before an international tribunal. In any event, allowing a State 
party three options-prosecution, extradition to another state, or surrender to the court-would seem 
the approach most compatible with the view that the coiurt should complement, rather than compete 
with, prosecution before national tribunals. 

The grounds for refiisal to transfer an accused should be kept to a minimiun. It would be 
inappropriate, for instance, to include the political offense exception. By contrast, it is appropriate to 
include, as the court's Statute does, the doctrine of speciality, which requires that a person 
surrendered to a court "not be subject to prosecution or pvmishment for any crime other than that for 
which the person was surrendered. " [FN46] 

Related to the question of transfer of an accused to the court is the double jeopardy issue. The 
approach taken by the draft Statute, in Article 45, would seem, with one exception, to be acceptable. 
As presently worded, Article 45 would obligate all parties to the court's Statute not to try a person for 
an offense for which that person had been tried before the court, not just states parties that had 
accepted the court's Jurisdiction over that particular crime. 

Under Article 45, a person who has been tried by another court (including another international 
court) for an act constituting a crime within the international criminal court's Jurisdiction could be 
tried again by the international criminal court only if the act in question was characterized by the 
other court as an ordinary crime or if "the proceedings in the other court were not impartial or 
independent or were designed to shield the accused from international criminal responsibility or the 



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case was not diligently prosecuted." The principle of double jeopardy would also bar a subsequent 
trial of the accused for the same acts in national *500 courts of states parties that had accepted the 
court's Jurisdiction over the particular crime and importantly, the international tribunal itself from 
trying a person twice for the same ofFenses. 

As for the trial itself, Article 36 of the draft Statute provides that, unless otherwise decided by the 
court, the trial shall take place at the seat of the tribunal (yet to be determined). Article 36 also 
provides, however, that the court may make arrangements with any other state for trial within its 
territory and, if "practicable and consistent with the interest or justice, a trial should be conducted in 
or near the State where the alleged crime was committed. '* 

Some legal Systems afiford their prosecutorial authorities very little discretion as to whether to 
prosecute, resulting in a System of so-called "compulsory prosecution." [FN47] As noted previously in 
this report, however, in the case of an international criminal tribunal, it would be preferable to 
maximize the independence of the Prosecutor by granting her füll discretion as to whether to 
Institute proceedings. Moreover, if the caseload of the Prosecutor becomes heavy, she should have 
the authority to engage in plea bargaining, including possible grants of immiuiity to witnesses. 
Although plea bargaining has traditionally been rejected in principle by civil law legal Systems, 
increased caseloads have resulted in plea bargaining in practice. [FN48] 

It would be crucially important that the trial Chamber ensure that a trial is fair and expeditious 
and that proceedings are conducted in accordance with the rules of procedure and evidence and with 
füll respect for the rights of the accused. The trial Chamber would also have to provide appropriate 
protection for victims and witnesses during the proceedings. In most instances the hearings should 
be public unless the trial Chamber decided to close the proceedings, in accordance with its rules of 
procedvire and evidence, to satisfy a compelling need, such as protection of victims and witnesses 
through such measures as in camera proceedings or other means to ensure the confidentiality of a 
victim's or witnesses' identity. 

The ILC working group's draft Statute contains a number of provisions relating to protection of the 
rights of an accused as well as provisions relating to protection for victims and witnesses during the 
proceedings. With respect to protection of victims and witnesses, Article 46 of the draft Statute 
would permit the court to conduct proceedings in camera or allow the Präsentation or evidence by 
such electronic means as video cameras. The commentary to Article 46, however, recognizes that 
allowing a prosecution witness to testify by video camera conflicts with the right of an accused to 
examine prosecution witnesses and the ability of the judges to assess the credibility of witnesses. 
Accordingly , in the view of the *501 working group, such procedures should be employed only when 
they are the only way to obtain the testimony of a particularly vulnerable victim or witness. [FN49] 

In its report the War Crimes Task Force devotes a considerable amoimt of attention to the 
difficulties involved in reconciling the cross examination and other rights of confrontation of an 
accused with the need to protect victims and witnesses. [FN50] This report makes no efifort to 
replicate or expand upon this discussion. It sufEices for present purposes to note that the Situation in 
former Yugoslavia presents an especially acute, perhaps "historically imique" [FN51] example of the 
need for protection of victims and witnesses. Although such situations could conceivably arise in 
proceedings before a permanent international criminal court, it would appear that the War Crimes 
Task Force cautionary Suggestion that "in the vast mggority of cases justice will be best served by 
affording the defendant the füll confrontational rights discussed above without substantial 
modification to protect victims and witnesses" [FN52] woidd apply a fortiori to proceedings before a 
permanent international criminal court. 

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jeopardy. Other relevant provisions of the draft Statute include Article 40, which requires trial 
Chambers to ensure a fair trial with füll respect for the rights of an accxised; Article 41, which sets 
forth the fundamental criminal law principle nullum crimen sine lege that prohibits anyone being 
held guilty of a criminal ofifense based on an act that was not a crime, under national or 
international law, at the time it was committed; Article 42, which provides that all persons shall 
eiyoy equality before the court; and Article 43, which provides that a person shall be presimied 
innocent \intil proved guilty. The commentary to Article 43 states that the Prosecutor "has the 
bürden to prove every element of the crime beyond a reasonable doubt or in accordance with the 
Standard for determining the guilt or innocence of the accused." [FN53] (Emphasis supplied.) The 
Task Force would suggest that the bürden of the Prosecutor to prove every element of the crime 
beyond a reasonable doubt or its fimctional equivalent [FN54] be the Standard for determining the 
guilt or innocence of an accused. This is not ♦502 necessarily the Standard in the national legal 
Systems of other coimtries, but it is a crucially important protection. [FN55] 

The primary Provision of the draft Statute on the rights of an accused is Article 44, whose terms are 
set forth in fiill below: 

Rights of the Accused 

1. In the determination of any charge imder this Statute, the accused is entitled to a fair and 
public hearing, subject to article 40, paragraph 2, and to the foUowing minimum guarantees: 

(a) to be informed promptly and in detail, in a language which the accused understands, of 
the nature and cause of the charge; 

(b) to be informed of the right of the accused to conduct the defence or to have the assistance 
of coimsel of the accused*s choice or, in the absence of means to retain counsel, to have 
coxmsel and legal assistance assigned to the accused by the Court; 

(c) to have adequate time and facilities for the preparation of the defence, and to 
commiuiicate with counsel; 

(d) to examine, or have examined, the prosecution witnesses and to obtain the attendance 
and examination of witnesses for the defence under the same conditions as witnesses for the 
prosecution; 

(e) to be tried without undue delay; 

(f) if any of the proceedings of, or documents presented to, the Court, are not in a language 
the accused imderstands and speaks, to have, free of any cost, the assistance of a competent 
Interpreter and such translations as are necessary to meet the requirements of faimess; 

(g) not to be compelled to testify or to confess guilt; 

(h) to be present at the trial, imless the Court, having heard such submissions and evidence 
as it deems necessary, concludes that the absence of the accused is deliberate. 

2. At the commencement of a trial, the Coiul; shall ensure that the indictment and other 
documents referred to in article 33, paragraphs l(h) and 4(b) of the Statute, and copies thereof in 
a language imderstood and spoken by the accused, have been provided to the accused suflficiently 
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3. All incriminating evidence on which the prosecution intends to rely and eül exculpatory 
evidence available to the prosecution prior to the commencement of the trial shall be made 
available to the defence as soon as possible and in reasonable time to prepare for the defence. 

The above provisions are drawn from Article 14 of the International Covenant on Civil and 
Political Rights, which the United States and numerous other coimtries have ratified. Although 
these provisions would provide a number of Protections for an accused, there are a few Protections not 
provided or perhaps inadequately provided by them. For instance, paragraph l(h) would permit 
trials in absentia, a problem previously addressed in this rejwrt. 

Also, Paragraph l(g) constitutes a recognition of the right against self-incrimination. But it does 
not address some subtle differences between the U.S. approach to this issue and that of the civil law 
Systems. For example, in the United States, an accused cannot be compelled to take the stand. If he 
takes the ♦503 stand, answers some questions, but refuses to answer others on the ground that his 
answer might incriminate him, the court is not permitted to comment on this refiisal, and neither the 
court nor a jury is permitted to draw adverse (to the accused) inferences from this failure. [FN56] In 
contrast, in Germany an accused is required to take the stand. He then can refuse to answer any 
questions (although he rarely does so) and the court is not permitted to draw adverse inferences. 
However, if the accused answers some questions, but declines to answer others, the court may draw 
adverse inferences from such silence. [FN57] 

The Task Force is divided on the issue whether the U.S. or the German approach would be 
preferable for an international criminal court. A m^gority of the Task Force favors the U.S. position. 

The words "to examine or have examined" in paragraph l(d) are designed to accommodate the 
different approaches to examination of witnesses foUowed by the common law and civil law legal 
Systems. Under the civil law approach the judge asks most of the questions, although some of these 
questions may be suggested by coimsel, and coimsel themselves may ask some questions with the 
judge's permission. Cross-examination, as it is employed in the United States, is not generally 
utilized in the civil law. [FN58] At Nuremberg, however, counsel freely cross-examined witnesses. 
[FN59] Similarly, cross-examination should be an integral part of the procedure before an 
international criminal court and the Task Force would recommend deletion of the words "or have 
examined." 

As to the introduction of evidence, it is well known that the civil law legal Systems do not employ 
the elaborate exclusionary rules characteristic of the U.S. legal System. In large part, although not 
entirely, this is because the civil law trial does not have a jury. In general the approach of a civil 
law tribimal is to admit the evidence and to permit professional judges to decide what weight, if any, 
to give it. Thus, hearsay, for example, is freely admitted in civil law criminal proceedings. 

It is important to note, however, that the civil law does exclude some kinds of evidence and that a 
convergence between the civil law and conunon law approaches may be developing. For example, as 
reported by Craig M. Bradley: 

Four trends emerge from the comparative analysis in this article. First, every coxmtry 
examined here except the United States agrees that the declaration of criminal procedure rules 
is, at least primarily, the province of the legislative, not the judicial brauch. The legislature 
enacts rules in a code that the police can leam and obey, rather than a series of court opinions. 
Second, most countries require Miranda-type wamings prior to interrogation. If the requirement 
of such wamings in the United States was once aberrational, ♦504 that is no longer the case. 
Third, exclusionary remedies are finding increasing favor as a means of deterring police breaches 
of the rules, even though the courts of two countries, Canada and Germany, continue to maintain 



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that deterrence of police misconduct is not the purpose of the exclusionary rule. Fourth, these 
exclusionary remedies tend, except in the case of coerced confessions, to be discretionary, rather 
than mandatory as in the United States. Nonetheless, they tend to be enforced often enough to 
have an impact on the police, at least in Canada and England, increasingly in Germany, and 
perhaps in Italy and Australia as well. [FN60] 

Moreover, German coxirts regularly exclude evidence obtained in violation of a constitutionally 
protected right of privacy, [FN61] and civil law legal Systems often have extensive protection for 
privileged commvmications and exclusions based on personal incompetence to testify for such reasons 
as kinship, tender age or prior felony convictions. 

Under Article 19 of the ILC working group's draft Statute, the judges, by majority vote and on the 
recommendation of the Bureau, would have the authority to promulgate rules regarding the conduct 
of pre-trial investigations, the procedure to be foUowed and the rules of evidence to be applied in a 
trial, and "any other matter which is necessary for the Implementation of this Statute." With respect 
to evidentiary matters Article 48 of the draft Statute would Supplement Article 19 by authorizing the 
court to require any person to give evidence at the trial if deemed to be relevant to the proceedings. 

In accordance with its earlier observations the Task Force would suggest that this Provision be 
revised to avoid the possibility that the court would attempt to compel the appearance of nationals of 
a State that has not accepted the jvirisdiction of the court regarding the offense in question. Also in 
accordance with its earlier observations the Task Force would suggest the revision of the Provision in 
Article 48 of the draft Statute that would have each witness "make such oath or declaration as is 
customary in judicial proceedings in the State of which the witness is a national." The rules of 
evidence should determine whether witnesses should be required to take an oath and if so, what form 
it should take rather than drawing on varying national practices. By contrast, the Task Force would 
applaud the Provision of Article 48 that would bar the admission of evidence "obtained directly or 
indirectly by illegal means which constitute a serious violation of intemationally protected himian 
rights." 

Article 19 of the draft Statute follows the approach adopted by Article 15 of the Statute of the 
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of 
International Humanitarian Law Committed in the Territory of the Former Yugoslavia in giving the 
judges of the court the Obligation and plenary power to adopt rules of procedure and evidence. To be 
sure, Article 48 of the draft Statute contains some basic provisions on evidence, and other provisions 
of the draft Statute are designed to protect the rights of an accused. *505 Like the War Crimes Task 
Force, however, the Task Force on an International Criminal Court believes that "the rules of 
evidence and procedure will be critical in maintaining the utmost degree of faimess in the daily 
Operations of the Tribunal" [FN62] and is concemed about the plenary power of the judges to adopt 
these rules. In the case of the tribunal for former Yugoslavia, the Suggestion was that the Security 
Council retain a role in approval of the rules of evidence and procedure prior to final adoption by the 
tribunal. [FN63] As for a permanent international criminal court the parties to the court's Statute 
should assume the resiwnsibility for developing rules of evidence and procedure and incorporate 
them in a protocol that would be adopted at the same time as the court's Statute. It is highly likely 
that the rules developed for the Yugoslavia War Crimes Tribunal could serve as the basis, with 
appropriate modifications, for the rules for a permanent international criminal court. 

Under Article 50 of the ILC working group's draft Statute, at least four judges would have to be 
present at each stage of the trial, and decisions of the trial Chambers would be taken by majority 
vote. Article 51 of the draft Statute would require that the judgment of the Chamber be in written 
form and contain "a füll and reasoned statement of its findings and conclusions." Unlike the Statute 
of the Yugoslavia War Crimes Tribunal, [FN64] Article 51 would not permit dissenting or separate 






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opinionß. According to the commentary on Article 51, various views were expressed in the working 
group on the desirability of allowing separate or dissenting opinions. [FN65] Among the reasons 
given for opposing such opinions were that they woidd undermine the authority of the court and its 
judgments and might endanger the personal safety of the judges given the serious nature of the 
crimes within the court's Jurisdiction. The primary reasons advanced in favor of allowing such 
opinions were that they would be helpful to an accused who chose to appeal a conviction and that 
they would assist the appeals Chamber in deciding whether to overtum a conviction. The working 
group concluded that the reasons advanced against dissenting and separate opinions outweighed the 
possibly favorable efifects of such opinions. The Task Force takes no position on this issue. 

The draft Statute would permit an appeal to the appeals Chamber on three grounds: "material 
error of law; error of fact which may occasion a miscarriage of justice; or manifest disproportion 
between the crime and the sentence." [FN66] The working group considered granting the Prosecutor 
as well as the defendant the right to appeal and decided to retiun to this question at some later time. 
[FN67] Although *506 in some legal Systems the prosecutor has a right of appeal, the Task Force 
would favor the U.S. approach that regards an acquittal on the facts as final and giving rise to double 
jeopardy. Such an approach would permit only the person convicted by the trial Chamber to request 
an appeal after final judgment or a rcvicw prcceeding. However, either the defendant or the 
Prosecutor should be permitted an interlocutory appeal of issues of law. 

V. Enforcement of Sanctions 

In one sense the topic of enforcement of sanctions Covers a wide ränge of issues. These could 
include, for example, compelling the attendance of the accused, or of witnesses, arrangement for 
detention of an accused pending trial, the production of evidence, punishment of perjury, or sanctions 
against states that fail to carry out their obligations under the court's constituent Instruments or 
otherwise interfere with the court's functioning. Some of these issues are dealt with elsewhere in 
this report. In this section the focus is more narrow. It is on the enforcement of the penalty decided 
on foUowing a final decision of the tribxuial to convict an accused. This issue arises only once the 
final decision of the tribunal to convict an accused. This issue arises only once the final decision has 
been made and either the time for any appeal has passed or such appeal has resulted in a 
confirmation of sentence. 

This issue in tum may be divided into two sub-issues: the type or ränge of sanctions to be imposed 
against convicted persons and the method or methods of enforcement of such sanctions. 

A. TYPES OF SANCTIONS 

Although a number of arguments might be advanced in favor of or against the death penalty, there 
appears to be general agreement in UN deliberations that the death penalty will not be one of the 
sanctions available to a permanent international criminal coiut. Accordingly, the Task Force has 
assumed that life imprisonment would be the most onerous pimishment imposed by the court. 

In addition to imprisonment, however, there are other sanctions the court might impose. For 
example, in appropriate cases the tribunal might order compensation for the victims, forfeiture of the 
convicted person's property, or even Community Service in aid of the victim or society at large. Even 
with respect to imprisonment the options available to the court could ränge fi^om one day to life. 
There is an argument to be made in favor of giving the court considerable flexibility in deciding on 
appropriate sanctions. Factors the court might take into account would be similar to those employed 
in national legal Systems, such as the natiu*e of the ofTense, the age and position of the ofTender, the 
interest of the victim, and the balance between the rehabilitative and deterrent aspects of 
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Under Article 52 of the ILO working group's draft Statute, a Chamber would be required to hold a 
further and separate hearing on sentencing of a convicted *507 person. Article 53 of the draft Statute 
further provides that the Chamber could impose "a term of imprisomnent, up to and including life 
imprisonment" or "a fine of any amount." In deciding on the length of the term of imprisomnent or 
the amount of a fine, the Chamber would be able to consider the penalties provided by the law of "the 
State of which the perpetrator of the crime is a national; the state on whose territory the crime was 
committed; or the State which had custody of and Jurisdiction over the accused." [FN68] The 
Chamber would also be able to order the retum of stolen property to its rightful owner or, if the 
rightfiil owner couldn't be traced, forfeiture of such property or proceeds. [FN69] As previously 
noted, an appeal could be taken against a sentence on the groimd that there was a manifest 
disproportion between the crime and the sentence. [FN70] 

The draft Statute does not specify which state*s law on penalties would be applied in case of conflict 
among the three possibilities. In any event, the Task Force is opposed to allowing the court such a 
choice. This would result in considerable uncertainty and unequal justice. The type and ränge of 
possible sanctions should be specified in the court's Statute. 

B. METHODS OF ENFORCEMENT OF SANCTIONS 

The methods to be used to enforce sanctions would obviously vary depending on which sanctions 
would be available. If, for example, forfeiture of assets or of the proceeds of crime were options 
available to the court, it might be possible to modify international Systems of mutual assistance in 
criminal matters for use in imposing these sanctions. There is general agreement that using only 
financial sanctions in place of imprisonment would be inappropriate for most of the crimes which 
would be involved. 

The complexity of this topic was aptly siunmarized in a report on a recent Conference in Vancouver, 
Canada: 



"^T^ 

'®^ 

^^^ 



It was clear that an international criminal tribimal or court would face potentially enormous 
difficulties in the enforcement of sentences of imprisonment. These included: the expense of 
long-term imprisonment, in particular if a special facility was required; the security problems of 
detention of perhaps very high-profile prisoners; the desirability (if only for humanitarian 
reasons) for prisoners to be housed close to their home territory; the possibility that a prisoner 
might be regarded either as a hero or a monster by the local population, and in the former case 
that any local prison facility would be seen as a quasi-colonial imposition; the likely 
luiwillingness of third states to house large niunbers of long-term prisoners even though the costs 
of doing so might be bome intemationally; the question of compliance with minimum Standards 
for the treatment of prisoners, especially given the Variation in economic and social conditions in 
diflferent parts of the world; need for rules relating to such matters as conditions of imprisonment 
and prison discipline, and the related issues of parole, probation, pardon and release on 
compassionate groimds.... 

•508 The limited international experience with these issues was not a happy one. Although it 
was recognized that even small and poor states maintained efifective prison Systems, and that the 
United Nations's minimimi Standards and rules for detention had been drafted to apply to a wide 
ränge of situations, the additional problems of imprisoning war criminals and other persons 
convicted of international crimes made this an especially diflficult area. Indeed the difficulties 
were such that some feit they were almost insuperable, at least for a long-term court, and 
required reconsideration of what such a court was really intended to achieve. Others were more 
optimistic that the problems could be resolved, if necessary on a case by case basis. But there 
was general agreement that without a Solution, the arguments for having a criminal court trying 



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individual persons would dissolve. And it would not be possible to proceed to trial in any given 
case unless arrangements for implementation of an eventual sentence were in hand. [FN71] 

Aß noted in the first report of the Task Force, at the pre-trial stage an accused would probably be 
incarcerated in the State where he was apprehended, while diuing the trial he would, primarily for 
logistical reasonß, be detained in a temporary jail facility located at the site of the court. [FN72] 

Under Article 65 of the ILC working group's draft Statute, states parties would be required to 
recognize and give effect to judgments of the court. This is an important Provision, because, in the 
absence of a treaty, states normally will not enforce the criminal or penal judgments of other states. 
It should be made clear, however, that a State party to the court's Statute would have this Obligation 
only with respect to judgments based on crimes the State party had recognized as within the court's 
Jurisdiction. The draft Statute further requests states parties to ofiFer facilities for imprisonment of 
persons convicted by the court, states that imprisonment shall take place in a state designated by the 
court from a list of states that have offered their facilities, or, if no such state is designated, in the 
State where the court is located, and subjects imprisonment to the supervision of the court. [FN73] 

The commentary indicates that the working group plans to retum to the factors to be considered by 
the court in deciding whether to designate a state to serve as the place of incarceration, but 
recognizes that these factors might more appropriately be contained in the rules of the court. [FN74] 
The commentary £dso suggests that the terms and conditions of imprisonment should be in 
accordance with international Standards, most particularly, the UN's Standard Minimvim Rules for 
the Treatment of Prisoners, that the rules of the court couJd provide for procedures under which a 
convicted person could seek redress for mistreatment and for reports by national authorities, and 
that all states parties should share in ♦509 the costs that would be involved in the incarceration of 
persons for substantial periods of time. [FN75] 

From an ideal perspective, it would be desirable to have the state where the tribunal is located 
serve as the place where all the sentences imposed by the court would be carried out. However, the 
feasibility of this proposal would depend on the nimiber of such sentences and the penal resources of 
that State. At a minimum having all of the sentences carried out in one state would greatly ease the 
covirt's administrative burdens in terms of oversight of their implementation. 

Finally, there is the issue as to who should be able to grant an accused person a pardon, amnesty, 
or conditional release. The issue has come to the fore recently with El Salvador's controversial 
amnesty to those (on the govemment's side only) who conunitted war crimes or other human rights 
violations during the long civil war in that coimtry. Under Article 67 of the working group's draft 
Statute a decision whether to grant pardon, parole, or commutation of sentences would involve an 
unnecessarily cumbersome process that would include reference to and reliance upon various 
national laws. The War Crimes Task Force addressed a somewhat similar problem arising imder the 
Statute for the Yugoslavia War Crimes Tribunal. It suggested that the Tribunal should adopt 
guidelines providing for imiform Standards conceming the treatment of prisoners, including the 
pardon of sentences, and that these guidelines should specify an alternative forum for review of 
requests for pardon or commutation once the Tribunal is no longer in existence. [FN76] The Task 
Force on an International Criminal Court believes that this Suggestion is equally appropriate for a 
permanent international criminal cowrt, 

FNa. The views expressed herein have not been approved by the House of Delegates or the Board of Govemors of the 
American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar 
Association. 






FNl. S.C.Res. 808, U.N. SCOR. 3175th mtg. at 2, U.N.Doc. 5/Res/808 (1993). 

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FN2. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N.Doc. S/25704 
(1993). 

FN3. S.C.Res. 827. U.N. SCOR, 3217th mtg. 11 1-2, U.N.Doc. S/25626 (1993). 

FN4. G.A.Res. 47/33, U.N. GAOR, 47th Sess., U.N.Doc. A/47/584 (Nov. 25, 1992) (adopting the report of the Sixth 
Committee on the work of its forty fourth Session). 

FN5. International Law Commission Revised Report of the Working Group on the Draft Statute for an International 
Criminal Court, ILC, 45th Sess. U.N.Doc. A/CN.4/L.490 (July 19, 1993) (Draft Statute contained in add. 1 to the 
Report). 

FN6. Report of American Bar Association Task Force on an International Criminal Court, 27 INT'L LAW. 258, 261 
(1993). 

FN7. See Eric L. Chase, Stop Swaggering and Start Working for Justice, 133 NEW JERSEY L.J. 17 (1993). 

FN8. International Commission's Task Force on War Crimes in Former Yugoslavia, Report on the International 
Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia, Annex 2, Statute of the International 
Tribunal, art. 1, U.N.Doc. s/25704 add. 1 (July 8, 1993). 

FN9. Id. art. 2. 

FNIO. Id. art. 3. 

FNll.Id. art. 4. 

FN12. Id. art. 5. 

FN13. Art. Vin, Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 
277 (entered into Force 12 January 1951). 

FN14. Doudou Thiam, Eleventh Report on the Draft Code of Crimes Against the Peace and Security of Mankind, 
Draft Statute of an International Criminal Court, art. 5(3), U.N.Doc. A/CN.4/449 (March 25, 1993). 

FN15. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, at 
22. 

FN16. Id. 

FN17. Id. at 29. 

FN18. For ftirther discussion, see John F. Murphy, Commentary on Article 15: Aggression, in COMMENTARIES 
ON THE INTERNATIONAL LAW COMMISSION'S 1991 DRAFT CODE OF CRIMES AGAINST THE PEACE 
AND SECURITY OF MANKIND 207-12 (M. Cherif Bassiouni, ed. 1993). 

F^19. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, at 
29. 

FN20. Doudou Thiam, supra note 14, art. 5. 

FN21.Id. at 12. 






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FN22. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, at 
26-7. 

FN23. Statute of the Tribunal, supra note 8, art. 24(1). 

FN24. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
art. 6. 

FN25. Statute of the Tribunal, supra note 8, art. 13(2). 

FN26. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, at 
9-10. 

FN27. Id. at 13. 

FN28. Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia, supra 
note 8, at 22. 

FN29. Id. at 23-5. 

FN30. Report of American Bar Association Task Force on an International Criminal Court, supra note 6, at 273. 

FN31. See John F. Murphy, The Need for International Cooperation in Combatting Terrorism, 13 TERRORISM: AN 
INTERNATIONAL JOURNAL 381 (1990). 

FN32. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1 at 2. 

FN33. Id. at3. 

FN34. Id. at 6. 

FN35. Draft Statute of ILC Working Group, id. art. 30(2) at 4. 

FN36. Id. art. 30(3). 

FN37. Id. art. 30(4)(b) & (c). 

FN38. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, at 
12. 

FN39. Draft Statute of ILC Working Group, id. art. 32(4). 

FN40. Id. art. 32(3). 

FN41.Id. art. 56(2). 

FN42. See John F. Murphy, Norms of Criminal Procedure at the International Military Tribunal, in THE 
NUREMBERG TRL\L AND INTERNATIONAL LAW 61 (G. Ginsburgs and V.N. Kudriavtsev, eds. 1990). 

FN43. Craig M. Bradley, The Emerging International Consensus as to Criminal Procedure Rules, 14 MICH.J.INT'L 
L. 171 (1993). 



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FN44. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1, at22-3. 

FN45. Id. at46. 

FN46. Draft Statute of the ILC Working Group, id. art. 64(1). 

FN47. See, e.g., John H. Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 MICH.L.R. 204 
(1979). 

FN48. See Joachim Hermann, Bargaining Justice-A Bargain for German Criminal Justice? 53 U.PITT.L.R. 755 
(1992). 

FN49. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1, at26. 

FN50. Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia, supra 
note 8, at 36-45. 

FN51.Id. at37. 

FN52. Id. 

FN53. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1, at21. 

FN54. As noted by the War Crimes Task Force, "it would not be reasonable [for the Task Force] to insist that the 
Tribunal adopt the same verbal Standard as that used in the United States." But the War Crimes Task Force was 
"firmly convinced that either that Standard or its ftinctional equivalent must be adopted for application in the Tribunal." 
Report on the International Tribunal to Adjudicate War Crimes in Former Yugoslavia, supra note 8, at 34. 

FN55. For discussion see id. at 33-4. 

FN56. Griffm v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965). 

FN57. RUDOLF B. SCHLESINGER ET AL., COMP.L. 487-8 (5th ed. 1987). 

FN58. For recent discussion, see Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE 
DAME L.REV. 403, 422-5 (1992). 

FN59. John F. Murphy, Norms of Criminal Procedure at the International Military Tribunal, supra note 42, at 71. 

FN60. Craig M. Bradley, supra note 43, at 219-20. 

FN61. Id. at 207-8. 

FN62. Report on the International Tribunal to Adjudicate War Crimes in Former Yugoslavia, supra note 8, at 31. 

FN63. Id. at 32. 

FN64. Statute of the Tribunal, supra note 8, art. 23. 






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FN65. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1, at 32. 

FN66. Id. art. 55. 

FN67. Id. at 38. 

FN68. Id. art. 53(2). 

FN69. Id. art. 53(3). 

FN70. Id. art. 55(l)(c). 

FN71. International Centre for Criminal Law Reform and Criminal Justice Policy, Report on International Meeting of 
Experts on the Establishment of an International Criminal Tribunal, March 22-6, 1993, at 27. 

FN72. Report of American Bar Association Task Force on an International Criminal Court, supra note 6, at 277. 

FN73. Revised Report of the Working Group on the Draft Statute for an International Criminal Court, supra note 5, 
add. 1, art. 66, at 48-9. 

FN74. Id. at 49. 

FN75. Id. 

FN76. Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia, supra 
note 8, at 60-1. 

*510 Appendix [A] 

DRAFT STATUTE FOR AN 

INTERNATIONAL CRIMINAL TRIBUNAL 

Part 1: Establishment and Composition of the Tribunal 

Article 1 

Establishment of the Tribunal 

There is established an International Criminal Tribunal (hereinafter the Tribunal), whose 
Jurisdiction and functioning shall be govemed by the provisions of the present Statute. 

Article 2 
Relationship of the Tribunal to the United Nations 
[The Tribimal shall be a judicial organ of the United Nations.] 

[The Tribunal shall be linked with the United Nations as provided for in the present Statute.] 

Article 3 






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Seat of the Tribunal 



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1. The seat of the Tribunal shall be established at ... 

2. The [Tribunal] [Secretary -General of the United Nations] shall, with the approval of [the General 
Assembly], conclude an agreement with the State of the seat of the Tribunal, which will regulate the 
relationship between that State and the Tribunal. 

Article 4 



Status of the Tribunal 

1. The Tribunal is a permanent Institution open to States parties to the Statute of the Tribunal 
(hereinafter called the State Parties) and to other States in accordance with this Statute. It shall sit 
when required to consider a case submitted to it. 

2. The Tribunal shall ei\joy in the territory of each of the States parties such legal capacity as may 
be necessary for the exercise of its fiinctions and the fulfillment of its purposes. 

♦511 Article 5 

Organs of the Tribunal 

The Tribunal shall consist of the foUowing organs: 

(a) The Court, which shall consist of 18 judges elected in accordance with article 7; 

(b) The Registry, appointed xinder article 12; 

(c) The Procuracy, as provided under article 13. 

Article 6 

Qualifications of judges 

The judges shall be persons of high moral character, impartiality and integrity who possess the 
qualifications required in their respective countries for appointment to the highest judicial Offices. In 
the Overall composition of the Court, due account shall be taken of the experience of the judges in 
criminal law, international law, including international humanitarian law and human rights law. 

Article 7 

Election of judges 

1. The judges shall be elected by msyority vote of the States parties to this Statute. 

2. Each State party may nominate for election one person who possesses the qualifications specified 
in article 6, and who is willing and able to serve as may be required on the Court. 

3. The election of judges shall be by secret ballot. 

4. No two judges may be nationals of the same State. 






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5. States parties should strive to elect persons representing diverse backgrounds and experience, 
with due regard to representation of the major legal Systems. 

6. Judges hold ofEce for a term of 12 years and are not eligible for re-election. A judge shall, 
however, continue in office in order to complete any case the hearing of which has commenced. 

7. At the first election, 6 judges chosen by lot shall serve for a term of 4 years and are eligible for 
re-election; 6 judges (chosen by lot) shall serve for a term of 8 years, and the remainder shall serve a 
term of 12 years. 

Article 8 

Judicial vacancies 

1. In the event of a vacancy, a replacement judge may be elected in accordance with article 7. 

2. Judges elected to fill a vacancy shall serve for the remainder of their predecessor's term, and if 
that period is less than fovir years, are eligible for re-election for a fiirther term. 

♦512 Article 9 

Independence of judges 

In their capacity as members of the Coxirt, the judges shall be independent. Judges shall not 
engage in any activity which interferes with their judicial fimctions, or which is likely to aflfect 
confidence in their independence. In case of doubt, the Court shall decide. 

Article 10 

Election and fimctions of President and Vice-Presidents 

1. The President, as well as the first and second Vice-Presidents, shall be elected by the absolute 
majority of the judges. 

2. The President and the Vice-Presidents shall serve for a term of three years or imtil the end of 
their term of office on the Court, whichever is earlier. 

3. The President and the Vice-Presidents shall constitute the Bureau which, subject to this Statute 
and the Rules, shall be responsible for the due administration of the Court, and other functions 
assigned to it under the Statute. 

4. The first or second Vice-President, as the case may be, may act in place of the President on any 
occasion where the President is imavailable or ineligible to act. 

Article 11 

Disqualification of judges 

1. Judges shall not participate in any case in which they have previously been involved in any 
capacity whatsoever, or in which their impartiality might reasonably be doubted on any grovmd, 
including an actual, apparent or potential conflict of interest. 






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2. A judge who feels disqualified under paragraph (1) or for any other reason in relation to a case 
shall so inform the President. 

3. The accused may also request the disqualification ofa judge linder paragraph 1. 

4. Any question conceming the disqualification of a judge shall be settled by a decision of the 
absolute majority of the Chamber concemed. The Chamber shall be supplemented for that purpose by 
the President and the two Vice-Presidents of the Court. The challenged judge shall not take part in 
the decision. 

Article 12 

Election and functions of the Registrar 

1. On the proposal of the Bureau, the judges of the Court by an absolute majority shall elect the 
Registrar, by secret ballot, who shall be the principal administrative oflficer of the Court. 

♦513 2. The Registrar shall be 

(a) elected for a seven-year term, and eligible for re-election; 

(b) shall be available on a fiill-time basis, but may with the permission of the Bureau exercise 
such other functions within the United Nations System as are not inconsistent with his ofiice as 
Registrar. 

3. The Bureau may appoint or authorize the appointment of such other staff of the registry as may 
be necessary. 

4. The staflF of the Registry shall be subject to Staflf Regulations drawn up by the Registrar, so far 
as possible in conformity with the United Nations StaflF Regulations and StaflF Rules approved by the 
Court. 

Article 13 

Composition, functions and powers of the Procuracy 

1. The Procuracy shall be composed of a Prosecutor, who shall be Head of the Procuracy, a Deputy 
Prosecutor and such other qualified staflF as may be required. 

2. The Prosecutor and Deputy Prosecutor shaU be of high moral character and possess the highest 
level of competence and experience in the conduct of investigations and prosecutions of criminal 
cases. They shall be elected by majority vote of the States parties to this Statute from among 
candidates nominated by the States parties thereto for a term of five years and be eligible for re- 
election. 

3. The States parties shall, unless otherwise decided, elect the Prosecutor or Deputy Prosecutor on 
a standby basis. 

4. The Procuracy, as a separate organ of the Tribimal, shall act independently, and shall not seek 
or receive Instructions from any Government or any source. 

5. The Prosecutor shall appoint such staflF as are necessary to carry out the responsibilities of the 






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6. The Prosecutor, upon receipt of a complaint pursuant to article 28, shall be responsible for the 
investigation of the crime alleged to have been committed and the prosecution of the accused for 
crimes referred to in articles 22 and 26. 

7. The Prosecutor shall not act in relation to a complaint involving a person of the same 
nationality. In any case, where the Prosecutor is unavailable or disqualified, the Deputy Prosecutor 
shall act as Prosecutor. 

Article 14 
Solemn undertaking 

Before first commencing to exercise their fimctions imder this Statute, members of the Tribimal 
shall make a public and solemn undertaking to do so impartially and conscientiously. 

♦514 Article 15 

Loss of Office 

1. Judges shall not be deprived of their office unless, in the opinion of two thirds of judges of the 
court, they have been found guilty of proven misconduct or a serious breach of this Statute. 

2. Where the Prosecutor, the Deputy Prosecutor or the Registrar is found in the opinion of two 
thirds of the Court, guilty of proved misconduct or in serious breach of this Statute, he or she shall be 
removed from office. 

Article 16 
Privileges and immvmities 

1. Judges shall ei\joy, while performing their fimctions in the territory or States parties, the same 
Privileges and immunities as those accorded to judges of the International Court of Justice. 

2. Counsel, experts and witnesses shall ei\joy, while performing their fimctions in the territory of 
the States parties, the same Privileges and immunities as those accorded to counsel, experts and 
witnesses involved in proceedings before the International Court of Justice. 

3. The Registrar, the Prosecutor, the Deputy Prosecutor and other officers and staff of the Tribimal 
shall ei\joy, while performing their fimctions in the territory of the States parties, the same 
Privileges and immunities necessary to the Performance of their fimctions. 

4. The judges may, by magority, revoke the immimity of any person referred to in paragraph 3 
other than the Prosecutor. In the case of officers and staflF of the Tribunal, they may do so only on 
the recommendation of the Registrar or Prosecutor, as the case may be. 

Article 17 

Allowances and expenses 

1. The President shall receive an annual allowance. 






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2. The Vice-Presidents shall receive a special allowance for each day they exercise the fiinctions of 
the President. 

3. The judges shall receive a daily allowance during the period in which they exercise their 
fiinctions, and shall be paid for the expenses related to the Performance of their functions. They may 
continue to receive a salary payable in respect of another position occupied by them consistent with 
article 9. 

Article 18 

Working languages 

The working languages of the Tribunal shall be English and French. 

♦515 Article 19 

Rules of the Tribunal 

1. The Court may, by authority of the judges and on the recommendation of the Bureau, make 
rules for the functioning of the Tribunal imder this Statute, including rules regulating: 

(a) the conduct of pre-trial investigations, in particular so as to ensiu-e that the rights referred 
to in articles 38 to 44 are not infringed; 

(b) the procedure to be followed and the rules of evidence to be applied in any trial; 

(c) any other matter which is necessary for the Implementation of this Statute. 

Article 20 

Internal rules of the Court 

Subject to this Statute and to the Rules of the Tribimal, the Court has the power to determine its 
own rules and procedures. 

Article 21 

Review of the Statute 

A Review Conference shall be held, at the request of at least [ ...] States parties after this Statute 
has been in force for at least five years: 

(a) to review the Operation of this Statute; 

(b) to consider possible revisions or additions to the list of crimes contained in article 22 by way 
of a Protocol to this Statute or other appropriate instrument and in particular, the addition to 
that list of the Code of Crimes against the Peace and Security of Mankind, if it has then been 
concluded and has entered into force. 

Part 2: Jurisdiction and Applicable Law 

Article 22 






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List of crimes defined by treaties 

The Court may have Jurisdiction conferred on it in respect of the foUowing crimes: 

(a) genocide and related crimes as defined by articles n and HI of the Convention on the 
Prevention and Punishment of the Crime of Genocide of 9 December 1948; 

(b) grave breaches of: 

(i) The Geneva Convention for the Amelioration of the Condition of Wounded and Sick in 
Armed Forces in the Field of 12 August 1949, as defined by article 50 ofthat Convention; 

♦516 (ii) The Geneva Convention for the Amelioration of the Condition of the Wounded, 
Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, as defined by 
article 51 ofthat Convention; 

(iii) The Geneva Convention relative to the Treatment of Prisoners of War of 12 August 
1949, as defined by article 130 ofthat Convention; 

(iv) The Geneva Convention relative to the Protection of Civilian Persons in the Time of 
War of 12 August 1949, as defined by article 147 of that Convention; 

(v) Protocol I additional to the Geneva Conventions of 12 August 1949 and relating to the 
Protection of Victims of International Armed Conflicts of 8 June 1977, as defined by article 
85 of that Protocol; 

(c) the unlawfiil seizure of aircraft as defined by article 1 of the Convention for the Suppression 
of Unlawfiil Seizure of Aircraft of 16 of December 1970; 

(d) the crimes defined by article 1 of the Convention for the Suppression of unlawful Acts 
against the Safety of Civil Aviation of 23 September 1971; 

(e) apartheid and related crimes as defined by article 2 of the Litemational Convention on the 
Suppression and Punishment of the Crime of Apartheid of 30 November 1973; 

(f) the crimes defined by article 2 of the Convention on the Prevention and Punishment of 
Crimes against Intemationally Protected Persons, including Diplomatie Agents of 14 December 
1973; 

(g) hostage-taking and related crimes as defined by article 1 of the Litemational Convention 
against the Taking of Hostages of 17 December 1979; 

(h) the crimes defined by article 3 of the Convention for the Suppression of Unlawful Acts 
against the Safety of Maritime Navigation and by article 2 of the Protocol for the Suppression of 
Unlawfiil Acts against the Safety of Fixed Platforms located on the Continental Shelf, both of 10 
May 1988. 

Article 23 

Acceptance by States of Jurisdiction over crimes listed in article 22 

Alternative A 



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1. A State party to this Statute may, by declaration lodged with the Registrar, at any time accept 
the Jurisdiction of the Court over one or more of the crimes referred to in article 22. 

2. A declaration made under paragraph (1) may be limited to: 

(a) particular conduct alleged to constitute a crime referred to in article 22 or 

(b) conduct committed during a particular period of time, or may be of general application. 

*517 3. A declaration may be made xmder paragraph (1) for a specified period, in which case it may 
not be withdrawn before the end of that period, or for an unspecified period, in which case six 
months' notice of withdrawal must be given to the Registrar. Withdrawal does not aflfect proceedings 
already commenced under this Statute. 

4. A State not a party to this Statute may, by declaration lodged with the Registrar, at any time 
accept the Jurisdiction of the Court over a crime referred to in article 22 which is or may be the 
subject of a prosecution under this Statute. 

Alternative B 

1. Unless it makes the declaration provided for in paragraph 2, a State becoming party to this 
Statute is deemed to have accepted the Jurisdiction of the Court over any crime referred to in article 
22, if it is a party to the treaty which defines that crime. 

2. A State party to the present Statute may, by declaration lodged with the Registrar, indicate that 
it does not accept the Jurisdiction of the Court over one or more of the crimes referred to in paragraph 
1. 

3. The declaration may be made on the ratification of or accession to the Treaty embodying this 
Statute or at any time thereafter, in which case it shall come into eflfect 90 days after being made 
and it shall not aflfect any proceedings already commenced luider this Statute. 

4. Declarations may be withdrawn at any time, with immediate eflfect. 

Alternative C 

1. A State party to this Statute may, by declaration lodged with the Registry, at any time accept 
the Jurisdiction of the Court. 

2. Unless otherwise specified, a declaration of acceptance imder paragraph 1 shall be deemed to 
confer Jurisdiction on the coxirt with regard to all of the crimes listed in article 22. 

3. A declaration of acceptance under paragraph (1) may be limited to: (the rest of the Provision as 
in paragraphs 2, 3 and 4 of Alternative A). 

Article 24 

Jurisdiction of the Court in relation to article 22 

1. The Court has Jurisdiction luider this Statute in respect of a crime referred to in article 22 
provided that its Jurisdiction has been accepted under article 23: 






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(a) by any State which has Jurisdiction under the relevant treaty to try the suspect of that crime 
before its own courts, 

(b) in relation to a suspected case of genocide, by any State party to the Convention on the 
Prevention and Punishment of the Crime of Genocide, of 9 December 1948. 

•518 2. If the suspect is present on the territory of the State of his nationality or of the State where 
the alleged ofifense was committed, the acceptance of the Jurisdiction of the Court by that State is 
also required. 

Article 25 

Cases referred to the Court by the Seciuity Council 

Subject to article 27, the Court also has Jurisdiction under this Statute over cases referred tö in 
Articles 22 or 26(2Xa) which may be submitted to it on the authority of the Security Council. 

Article 26 

Special acceptance of Jurisdiction by States in cases not covered by Article 22 

1. The Court also has Jurisdiction under this Statute in respect of other international crimes not 
covered by Article 22 where the State or States identified in paragraph (3) notify the Registrar in 
writing that crime, Jurisdiction over specified persons or categories of persons. 

2. The other international crimes referred to in paragraph (1) are: 

(a) a crime under general international law, that is to say, under a norm of international law 
accepted and recognized by the international Community of States as a whole as being of such a 
fundamental character that its violation gives rise to criminal responsibility of individuals; 

(b) crimes under national law, such as drug-related crimes, which give efifect to provisions of a 
multilateral treaty, such as the 1988 United Nations Convention against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances, aimed at the suppression of such crimes and having 
regard to the terms of the treaty constitute exceptionally serious crimes. 

3. The State or States referred to in paragraph (1) are: 

(a) in relation to a crime referred to in paragraph (2Xa), the State on whose territory the suspect 
is present, and the State on whose territory the act or Omission in question occurred; 

(b) in relation to a crime referred to in paragraph (2Xb), the State on whose territory the suspect 
is present and which has Jurisdiction in conformity with the treaty to try the suspect for that 
crime before its own courts. 

Article 27 

Charges of aggression 

A person may not be charged with a crime of or directly related to an act of aggression under 
articles 25 or 26(2Xa) unless the Security Coimcil has first determined that the State concemed has 
committed the act of aggression which is subject of the Charge. 



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Applicable law 
The Court shall apply: 

(a) this Statute; 

(b) applicable treaties and the rules and principles of general international law. 

(c) as a subsidiary source, any applicable rule of national law. 

Part 3: Investigation and Commencement of Prosecution 

Article 29 

Complaint 

Any State Party with Jurisdiction over a particular crime imder the terms of an international 
Convention and which has accepted the Jurisdiction of the Court pursuant to article 23 of the Statute 
with respect to the crime or other State with such Jurisdiction and which has accepted the Jurisdiction 
of the Court pursuant to article 23; or any State which has consented to the Court's Jurisdiction 
under article 26; or the Security Council pursuant to article 25; may by Submission to the Registrar 
bring to the attention of the Court in the form of a complaint, with such supporting documentation as 
it deems necessary, that a crime, within the Jurisdiction of the Court, appears to have been 
committed. 

Article 30 



Investigation and preparation of the indictment 

1. The Prosecutor shall, upon receipt of a complaint in accordance with article 29 and imless the 
Prosecutor determines that no possible basis exists for action by the Court, initiate investigations. 
The Prosecutor shall assess the Information obtained and decide whether there is sufficient basis to 
proceed. The Prosecutor shall inform the Bureau of the Court of the nature and basis of the decision 
taken. In the case of a decision by the Prosecutor not to proceed, the Bureau acting as a Review 
Chamber, and at the request of the complainant State or the Security Council, shall have the power 
to review the decision and if it finds that there is sufficient basis, direct the Prosecutor to commence 
a prosecution. 

2. The Prosecutor shall have the power to request the presence of and to question suspects, victims 
and witnesses, to collect evidence, including the disclosure and production of any documentation or 
exhibits relevant to the complaint, and to conduct on-site investigations. 

3. In carrying out these tasks, the Prosecutor may, as appropriate, seek the Cooperation of any 
State in a position to provide assistance and shall have *520 the authority to request the Court to 
issue such subpoenas and Warrants as may be required, including for the arrest and detention of a 
suspect. 

4. A person suspected of a crime shall: 

(a) Prior to being questioned in an investigation under the Statute, be informed of the right to 






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remain silent without such silence being a consideration in the determination of guilt or 
innocence, and of the right to have the assistance of counsel of the suspectus choice or, in the 
absence of means to retain counsel, to have counsel and legal assistance assigned to the suspect 
by the Court; 

(b) Not be compelled to testify or to confess guilt; 

(c) If questioned in a language other than a language the suspect understands and speaks, be 
provided with competent interpretation Services, and translation of documents on which the 
suspect is to be questioned. 

Article 31 

Commencement of prosecution 

1. Upon a determination that there is a sufEcient basis to proceed, the Prosecutor shall prepare an 
indictment containing a Statement giving particulars of the facts and indicating the crime or crimes 
with which the accused is charged under the Statute. 

2. Prior to an indictment by the Coiurt, a person may be arrested or detained under the Statute, for 
such period as may be determined by the Court, only pursuant to: 

(a) A determination by the Court, that such arrest or detention is necessary because there is 
sufificient groimd to believe that such person might have committed a crime within the 
Jurisdiction of the Court; and, imless so arrested the person's presence at trial cannot be assured; 
and 

(b) The issuance of a Warrant or other order of arrest or detention by the Court. 

Article 32 
The indictment 

1. The indictment together with the necessary supporting documentation shall be submitted by the 
Prosecutor to the Bureau of the Court. 

2. The Bureau, acting as an Indictment Chamber, shall examine the indictment and determine 
whether or not a prima facie case exists. 

3. If tlie Bureau concludes that a prima facie case exists, it shall afiirm the indictment and convene 
a Chamber in accordance with article 37. 

4. On aflfirming the indictment, the bureau may, at the request of the Prosecutor, issue such Orders 
and Warrants for the arrest, detention or surrender of persons, and any other Orders as may be 
required for the conduct of the trial. 

•521 Article 33 

Notification of the indictment States parties to the Statute 

1. The Court, with a view to ensiuing prompt notification of an indictment to the accused, shall 
immediately following the issuance of an indictment: 



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(a) notify all States parties of the indictment and of any order related to the accused that may 
have been issued by the Court; and 

(b) transmit to the State Party, or State parties, within whose Jurisdiction the accused is then 
believed to be: 

(i) the indictment and any order relating to the accused that may have been issued by the 
Court; 

(ii) a copy of the Statute of the Court; 

(iii) a copy of the rules of evidence and procedures of the Covirt; 

(iv) a Statement of the accused's right to obtain legal assistance as set out in article 44, 
Paragraph l(b) of the Statute; and 

(v) if one of the working languages of the Tribimal is not the principal language understood 
and six)ken by the accused, a translation under the auspices of the Tribunal of the indictment 
and other documents referred to in the preceding subparagraphs. 

2. Where the State party or States parties, within whose Jurisdiction the accused is believed to be, 
have accepted the Jurisdiction of the Court with respect to such crimes as are the subject of the 
indictment, the Court shall order such State Party, or State parties: 

(a) to ensure that the indictment together with the other docimients referred to in paragraph 1 
of this article, are personally notified to the accused; and 

Ob) if an order for the arrest or detention of the accused has been issued by the Court, to assure 
that the accused is arrested or detained immediately foUowing such notification. 

3. Where the State Party or States parties, within whose Jurisdiction the accused is believed to be, 
have not accepted the Jurisdiction of the Court with respect to such crimes as are the subject of the 
indictment, the Court shall request such State or States: 

(a) to cooperate with the Tribunal in having the indictment and other docimients personally 
notified to the accused; and 

(b) if an order for the arrest or detention of the accused has been issued by the Covirt, to 
cooperate in obtaining the arrest or detention of the accused. 

States not parties to the Statute 

4. Where the State or States, within whose Jurisdiction an accused is believed to be, are not parties 
to the Statute, the Court shall with a view to prompt notification of an indictment to the accused 
and, where necessary, the arrest or detention of the accused, immediately following the issuance of 
an indictment: 

*522 (a) notify such State or States of the indictment and of any order of the Court relating to 
the accused; 

(b) transmit to such State or States copies of the indictment and of any order of the Court 
relating to the accused; 






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(i) to cooperate with the Tribunal in having the indictment and other documents personally 
notified to the accused; and 

(ii) if an order for the arrest or detention of the accused has been issued by the Court, to 
cooperate in obtaining the arrest or detention of the accused. 

Gases where personal notification of the indictment may not be feasible 

5. If personal notification of the indictment, together with the other documents, is not made to the 
accused within a period of sixty days after the indictment, the Court shall prescribe such other 
manner of bringing the indictment to the attention of the accused. 

Article 34 

Designation of persons to assist in a prosecution 

1. A State party may, at the request of the Prosecutor, designate persons to assist in a prosecution. 

2. Such persons should be available for the duration of the prosecution, unless otherwise agreed. 
They shall serve at the direction of the Prosecutor and shall not seek or receive Instructions from any 
Government or source other than the Prosecutor in relation to the exercise of their functions under 
this article. 

Article 35 

Pre-trial detention or release on bail 

1. The Court shall decide whether an accused person who is brought before it shall continue to be 
held in detention or be released on bail. 

2. If the Court decides to hold the accused in detention, the State on whose territory the seat of the 
Court is established shall make available to the Court the appropriate place of detention and, where 
necessary, the requisite guards. 

Part 4: TheTrial 

Article 36 

Place of Trial 

1. Unless otherwise decided by the Court, the place of the trial will be the seat of the Tribunal. 

•523 2. By arrangement between the Court and the State concemed, the Court may exercise its 
Jurisdiction in the territory of any State party, or in the territory of any other State. 

3. Where practicable and consistent with the interest of justice, a trial should be conducted in or 
near the State where the alleged crime was committed. 

Article 37 






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1. Gases shall be tried by Chambers of the Court. 

2. A Chamber of the Court shall be established in accordance with the rules of the Court. Each 
Chamber shall consist of five judges. 

3. Several Chambers may be established and may sit concurrently. 

4. No judge from a complainant State or from a State of which an accused is a national shall be a 
member of the Chamber dealing with that particular case. 

Article38 

Disputes as to Jurisdiction 

1. The Court shall satisfy itself that it has Jurisdiction in any case brought before it. 

2. Challenges to its Jurisdiction may be made, in accordance with procedures laid down by the 
rules: 

(a) at the commencement of the trial, by an accused or any State party; 

(b) at any stage of the trial, by the accused. 

3. If a State challenges the Jurisdiction of the Court under paragraph 2(a), the accused has fiill right 
to be heard in relation to the challenge. A decision that there is Jurisdiction shall not be reopened at 
the trial. 

Article 39 



Duty of the Chamber 

1. If the Bureau has not already done so under article 32, the Chamber shall decide, as early as 
possible in each case: 

(a) the place at which the trial is to be held, having regard to article 36; 

(b) the language or languages to be used during the trial, having regard to article 18 and article 
44, Paragraph l(f) and 2; 

2. The Chamber may order: 

(a) the disclosure to the defence of docimientary or other evidence available to the Prosecutor, 
having regard to article 44, paragraph 3; 

(b) the exchange of Information between the Prosecutor and the defence, so that both parties 
are sufficiently aware of the issues to be decided at the trial. 

♦524 3. At the commencement of the trial, the Chamber shall read the indictment, satisfy itself 
that the rights of the accused are respected and allow the accused to enter a plea of guilty or not 
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FairTrial 

1. The Chamber shall ensure that the trial is fair and expeditious, conducted in accordance with 
the present Statute and the mies of procediire and evidence of the Court, with füll respect for the 
rights of the accused and due regard for the protection of the victims and witnesses. 

2. A trial shall be public, unless the Chamber determines that certain proceedings be in closed 
Session, in accordance with article 46 of the Statute. 

Article 41 

Principle of Legality (nullimi crimen sine lege) 

An accused shall not be held guilty: 

(a) in the case of a prosecution under article 22, imless the treaty concemed was in force (and its 
provisions had been made applicable in respect of the accused); 

(b) in the case of a prosecution under article 26(2Xa), unless the act or Omission in question 
constituted a crime under international law; or 

(c) in the case of a prosecution under article 26(2)(b), unless the act or Omission constituted a 
crime imder the relevant national law, in conformity with the treaty, at the time the act or 
Omission occurred. 

Article 42 

Equality before the Tribunal 

All persons shall ei\joy equality before the Tribunal. 

Article 43 

Presumption of Innocence 

A person shall be presumed innocent until proven guilty. 

Article 44 



Rights of the accused 

1. In the determination of any charge under this Statute, the accused is entitled to a fair and public 
hearing, subject to article 40, paragraph 2, and to the following minimum guarantees: 

♦525 (a) to be informed promptly and in detail, in a language which the accused imderstands, of 
the nature and cause of the charge; 

Ot)) to be informed of the right of the accused to conduct the defence or to have the assistance of 
counsel of the accused's choice or, in the absence of means to retain counsel, to have counsel and 
legal assistance assigned to the accused by the Court; 



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(c) to have adequate time and facUities for the preparation of the defence, and to communicate 
with coiinsel; 

(d) to examine, or have examined, the prosecution witnesses and to obtain the attendance and 
examination of witnesses for the defence under the same conditions as witnesses for the 
prosecution; 

(e) to be tried without iindue delay; 

(f) if any of the proceedings of, or documents presented to, the Court, are not in a language the 
accused nnderstands and speaks, to have, free of any cost, the assistance of a competent 
interpreter and such translations as are necessary to meet the requirements of faimess; 

(g) not to be compelled to testify or to confess guilt; 

(h) to be present at the trial, unless the Court, having heard such submissions and evidence as 
it deems necessary, concludes that the absence of the accused is deliberate. 

2. At the commencement of a trial, the Court shall ensure that the indictment and other documents 
referred to in article 33 paragraphs l(h) and 4(b) of the Statute, and copies thereof in a language 
understood and spoken by the accused, have been provided to the accused sufificiently in advance of 
the trial to enable adequate preparation of the defence. 

3. All incriminating evidence on which the prosecution intends to rely and all exculpatory evidence 
available to the prosecution prior to the conunencement of the trial shall be made available to the 
defence as soon as possible and in reasonable time to prepare for the defence. 

Article 45 

Double jeopardy (non bis in idem) 

1. No person shall be tried before any other court for acts constituting crimes referred to in articles 
22 or 26, for which that person has already been tried under this Statute. 

2. A person who has been tried by another court for acts constituting crimes referred to in article 22 
or 26 may be subsequently tried imder this Statute only if: 

(a) the act in question was characterized as an ordinary crime; or 

(b) the proceedings in the other court were not impartial or independent or were designed to 
shield the accused from international criminal responsibility or the case was not diligently 
prosecuted. 

*526 3. In considering the penalty to be imposed on a person convicted under this Statute, the 
Court shall take into account the extent to which any sentence imposed by another court on the same 
person for the same act has been served. 

Article 46 



Protection of the accused, victims and witnesses 
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witnesses, and may to that end conduct proceedings in camera or allow the presentation of evidence 
by electronic or other special means. 

Article 47 

Powers of the Court 

1. The Court shall, subject to the provisions of the Statute and in accordance with the rules of 
procedure and evidence of the Court have, inter alia, the power to: 

(a) require the attendance and testimony of witnesses; 

(b) require the production of documentary and other evidentiary materials; 

(c) rule on the admissibility or relevance of issues, evidence and Statements; 

(d) maintain order in the course of a trial. 

2. The Court shall ensure that a complete record of a trial, which accurately reflects the 
proceedings, is maintained and preserved by the Registrar under the authority of the Court. 

Article 48 

Evidence 

1. The Court shall, on the application of the prosecution or of the defence, require any person to 
give evidence at the trial unless it concludes that the evidence of such person would not contribute to 
clarifying any matter of relevance to the trial. The Coiut may also on its own initiative require any 
person to give evidence at the trial. 

2. Before testifying, each witness shall make such oath or declaration as is customary in judicial 
proceedings in the State of which the witness is a national. 

3. The court may require to be informed of the nature of any evidence before it is oflFered so that it 
may rule on its admissibility or relevance. Any such ruling shall be made in open court. 

4. The Court shall not require proof of facts of common knowledge but may take judicial notice 
thereof. 

5. Evidence obtained directly or indirectly by illegal means which constitute a serious violation of 
intemationally protected human rights shall not be admissible. 

♦527 6. A witness who has not yet testified shall not be present when the evidence of another 
witness is taken. However, a witness who has heard the evidence of another witness shall not for 
that reason alone be disqualified from giving evidence. 

7. The Court may accept evidence in such forms as it deems appropriate in accordance with its 
rules of procedure and evidence. 

Article 49 






Hearings 
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1. The indictment shall be read to the acciised and the Court shall ask the accused to plead gruilty 
or not guilty to each of the charges in the indictment. 

2. If an objection is raised as to the Jurisdiction of the Coiut, the Court shall rule on the objection 
prior to proceeding any further with the trial. 

3. The Prosecutor shall make an opening statement and call witnesses and present evidence on 
behalf of the prosecution and, thereafter, the defence may make an opening statement and may call 
witnesses and present evidence on behalf of the accused. 

4. When hearings of evidence have been completed, the prosecution shall make its closing 
statement and, thereafter, the defence may make its closing statement. 

5. The Comt shall ask whether the accused wishes to make a statement before it delivers the 
judgment, and shall, if the accused so wishes, permit such a statement to be made. 

6. The Court shall, thereafter, retire for closed and private deliberations upon the judgment it is to 
make. 

Article 50 

Quorum and majority for decisions 

At least four judges must be present at each stage of the trial. The decisions of the Chambers shall 
be taken by a majority of the judges. 

Article 51 

Judgment 

1. The court shall pronoiuice judgments and impose sentences on persons convicted of crimes luider 
this Statute. 

2. The judgment of the Court shall be in written form and contain a fiill and reasonable statement 
of its findings and conclusions. It shall be the sole judgment or opinion issued. 

3. The judgment shall be delivered in open Court. 

♦528 Article 52 
Sentencing 

1. The Court shall hold a further and separate hearing to consider the question of the appropriate 
sentences to be imposed on the convicted person and to hear the submissions of the prosecution and of 
the defence and such evidence as the Court may deem to be of relevance. 

2. The Court shall retire for deliberations in private. 

3. The decisions of the Court on the sentences shall be delivered in open court. 

Article 53 






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1. The Chamber may impose on a person convicted of a crime vmder this Statute one or more of the 
foUowing penalties: 

(a) a term of imprisomnent, up to and including life imprisonment; 

(b) a fine of any amoimt. 

2. In determining the length of a term of imprisonment or the amonnt of a fine to be imposed for a 
crime, the Chamber may have regard to the penalties provided for by the law of: 

(a) the State of which the perpetrator of the crime is a national; 

(b) the State on whose territory the crime was committed; or 

(c) the State which had custody of and Jurisdiction over the accused. 

3. The Chamber may also order: 

(a) the retum to their rightfiil owners of any property or proceeds which were acquired by the 
convicted person in the course of committing the crime; 

(b) the forfeiture of such property or proceeds, if the rightful owners cannot be traced. 

4. Fines paid or proceeds of property confiscated pursuant to this article may be paid or transferred, 
by Order of the Chamber, to one or more of the foUowing: 

(a) the Registrar, to defiray the costs of the trial; 

Od) a State whose nationals were the victims of the crime; 

(c) a trust fimd established by the Secretary-General of the United Nations for the benefit of 
victims of crime. 

Article 54 

Aggravating or mitigating factors 

In imposing sentence, the Chamber should take into account such factors as the gravity of the 
crime and the individual circumstances of the convicted person. 

*529 Part 5: Appeal and Review 

Article 55 

Appeal against judgment or sentence 

1. [The Prosecutor] and the convicted person may, in accordance with the rules, appeal against a 
decision under articles 51, 52 or 53 on any of the following grounds: 

(a) material error of law; 



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(b) error of fact which may occasion a miscarriage of justice; or 

(c) manifest disproportion between the crime and the sentence. 

2. Unless the Chamber otherwise Orders, a convicted person shall remain in custody pending 
appeal, and provisional measures may be taken to ensure that the judgment of the Chamber, if 
affirmed, can be promptly enforced. 

Article 56 

Proceedings on appeal 

1. As soon as notice of appeal has been filed, the Bureau shall take steps in accordance with the 
rules to constitute an Appeals Chamber consisting of seven judges who did not take part in the 
judgment contested. 

2. The President or Vice-President shall preside over an Appeals Chamber. 

3. The Appeals Chamber has all the powers of the Chamber, and may afiEirm, reverse or amend the 
decision which is the subject of the appeal. 

4. The decisions of the Appeals Chamber shall be by majority, and shall be given in open court. Six 
judges shall constitute a quorum. 

5. Subject to article 57, decisions of the Appeals Chamber shall be final. 

Article 57 

Revision 

The convicted person [or the Prosecutor] may, in accordance with the rules of the Court, apply to 
the Court for revision of its judgment on the groimd that a new fact, not known at the time of the 
trial or at the time of the appeal, which could have been a decisive factor in the judgment of the 
Court, has since then been discovered. 

Part 6: International Cooperation and Judicial Assistance 

Article 58 

International Cooperation and judicial assistance 

1. States parties shall cooperate with the Tribiuial in connection with criminal investigations 
relating to, and proceedings brought in respect of, crimes within the Court's Jurisdiction. 

*530 2. States parties which have accepted the jiuisdiction of the Court with respect to a particular 
crime shall respond without imdue delay to any request for international judicial assistance or an 
Order issued by the Coxul; with respect to that crime, including, but not limited to: 

(a) the identification and location of persons; 

(b) the taking of testimony and the production of evidence; 



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(d) the arrest or detention of persons; 

(e) the surrender of the accused to the Tribxmal, in accordance with article 53; 

(f) any other request that may facilitate the administration of justice, including provisions on 
interim measures as required. 

Article 59 

Cooperation with States non-parties to the Statute 

States non-parties to the present Statute may provide the Tribvmal with judicial assistance and 
Cooperation imder article 58(2) or 62 on the basis of comity, a unilateral declaration, an ad hoc 
arrangement or other agreement with the Court. 

Article 60 



Consultation 



The States parties shall consult promptly, at the request of any one of them, conceming the 
Dplication or the carrying out of the provisions on international Cooperation and iudicial assistance 



application 

either generally or in relation to a particular case. 



Article 61 
Communications and Contents of documentation 

1. Commumcations in relation to this Statute shall normally be in writing and shall be between 
the competent national authority and the Registrar of the Court. 

2. Whenever appropriate, Communications may also be made through the International Criminal 
Police Organization (ICPO/INTERPOL), in conformity with arrangements which the Tribimal may 
make with this Organization. 

3. Docimientation pertaining to international Cooperation and judicial assistance shall include the 
foUowing: 

(a) the purpose of the request and a brief description of the assistance sought, including the 
basis and legal reasons for the request; 

(b) Information conceming the individual who is subject of the request; 

♦531 (c) Information conceming the evidence sought to be seized, describing it with sufificient 
detail to identify it, and describing the reasons for the request and the justification relied upon; 

(d) description of the basic facts underlying the request; and 

(e) Information conceming the charges, accusations or conviction of the person who is the 
subject of the request. 






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4. All communicationß and requests shall be made in one of the working languages set forth in 
article 18 of the present Statute. 

5. If the requested State considers that the information contained in the request is not sxifficient to 
enable the request to be dealt with, it may request additional information. 

Article 62 

Provisional measures 

In cases of urgency, the Court may request of the State concemed any or all of the foUowing: 

(a) to provisionally arrest the person sought for surrender; 

(b) to seize evidence needed in connection with any proceedings which shall be the object of a 
formal request imder the provisions of the Statute; or 

(c) to take as a matter of urgency all necessary measures to prevent the escape of a suspect, 
injury to or the intimidation of a witness, or the destruction of evidence. 

Article 63 

Surrender of an accused person to the Tribimal 

1. A soon as practicable after affirming the indictment under article 32, the Prosecutor shall seek 
from the Bureau or, if a Chamber has been constituted, from the Chamber, an order for the arrest 
and surrender of the accused. 



2. The Registrar shall transmit the order to any State on whose territory the accused person may 
be found, and shall request the Cooperation ofthat State in the arrest and surrender of the accused. 

3. On receipt of a notice on paragraph (2): 

(a) a State party which has accepted the Jurisdiction of the Court with respect to the crime in 
question shall take immediate steps to arrest and surrender the accused person to the Court; 

(b) a State party which is also a party to the treaty establishing the crime in question but which 
has not accepted the Court's jiuisdiction over that crime shall arrest and, if it decides not to 
surrender the accused to the Tribunal, forthwith refer the matter to its competent authorities for 
the purpose of prosecution; 

*532 (c) in any other case, a State party shall consider whether it can, in accordance with its 
constitutional processes, take steps to arrest and surrender the accused person to the Tribunal. 

4. The surrender of an accused person to the Tribunal constitutes, as between the States parties to 
this Statute, suflicient compliance with a Provision of any treaty requiring that a suspect be 
extradited or the case submitted to its competent authorities for the purpose of prosecution. 

5. A State party should, as f ar as possible, give priority to a request xmder paragraph 2 over 
request for extradition from other States. 

6. A State party may delay complying with paragraph 3 if the accused is in its custody and is being 



^^^ 

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prosecuted for a serious crime or is serving a sentence imposed by a court for a crime. 



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7. A State party may, within 45 days of receiving an order iinder paragraph 2, file a written 
application with the Registrar requesting the Court to set aside the order or quash the indictment on 
specified groimds. Pending a decision of the Chamber on the application, the State concemed shall 
take all necessary provisional measures imder article 62. 

Article 64 

Rule of speciality 

1. A person delivered to the Tribunal shall not be subject to prosecution or punishment for any 
crime other than that for which the person was surrendered. 

2. Evidence tendered shall not be used as evidence for any purpose other than that for which it was 
tendered. 

3. The Court may request the State concemed to waive the requirements of paragraph 1 or 2, for 
the reasons and purposes specified in the request. 

Part 7: Enforcement of Sentences 

Article 65 

Recognition of judgments 

States parties undertake to recognize and give efFect to the judgments of the Court. Where 
necessary or appropriate, States parties shall enact specific legislative and administrative measures 
necessary to comply with the Obligation to recognize the judgments of the Court. 

Article 66 

Enforcement of sentences 

1. States parties are requested to oflfer facilities for imprisonment in accordance with this Statute. 

♦533 2. Imprisonment shall be served in a State designated by the Court firom a list of States which 
have indicated to the Tribimal their willingness to accept convicted persons. 

3. If no State is designated under paragraph 2, the imprisonment shall be served in a prison facility 
made available by the State referred to in article 3. 

4. Imprisonment under paragraphs 2 or 3 shall be subject to the supervision of the Court. 

Article 67 

Pardon, parole and commutation of sentences 

1. If, under a generally applicable law of the State of imprisonment, a person in the same 
circumstances who had been convicted for the same conduct by a court of that State would be eligible 
for pardon, parole or commutation of sentence, the State shall so notify the Court. 



.'«»>. 

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2. If a notification has been given under paragraph 1, the prisoner may, subject to and in 
accordance with the rules, apply to the Court seeking an order for pardon, parole or commutation of 
sentence. 

3. If the Bureau decides that an application under paragraph 2 is apparently well-founded, it shall 
convene a Chamber to consider and decide whether in the interest of justice the person convicted 
should be released and on what basis. 

4. When imposing a sentence, a Chamber may stipulate that the sentence is to be served in 
accordance with specified laws as to pardon, parole or commutation of the State which, under article 
66, is responsible for implementing the sentence. In such a case, the consent of the Court is not 
required for subsequent action of that State in conformity with those laws, but the Court shall be 
given at least 45 days' notice of any decision which might materially aflfect the terms or extent of the 
imprisonment. 

5. Except as provided in paragraphs 3 and 4, a person serving a sentence imposed by the Court is 
not to be released before the expiry of the sentence. 

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Nuremberg Forty Years After: An Introduction 



by Cherif Bassiouni* 

Qn August 8, 1945, the London Charter was signed, and it opened the 
way for the prosecution of the major war criminals before the special 
international military tribunal at Nuremberg. The following year a simi- 
lar instrument estabhshed a counterpart tribunal for the Far Hast in 
Tokyo. The trial of the major war criminals in Europe and in the Far 
East was expected by many to be the precursor for the establishment of a 
permanent international criminal court for the prosecution of interna- 
tional crimes — a hope that had been entertained since the end of World 
War I. However, forty years since Nuremberg and sixty-eight years since 
Versailles no international criminal court has yet been established, and 
little progress has been made to codify international crimes. As a result 
the hopes of many have been disappointed, if not dashed, and the claim 
of those who $aw the Nuremberg and Tokyo trials as an ad hoc expres- 
sion of the Allies victory over the defeated Axis powers gained credibil- 
ity. But as with most historical judgments neither one of these 
conclusions is entirely correct. 

The Nuremberg trials of the major war criminals spawned, under 
Control Council Order No. 10, many more prosecutions in the Allied 
zones of occupation, and other prosecutions were carried out in various 
countries that had been occupied by Axis powers. These prosecutions 
became popularly known as '*War Crimes trials" even though the crimes 
charged were not exclusively within the technical meaning of **War 
Crimes." Similarly, but only in a small number of symbolic cases, the 
U.S. by virtue of the military authority of General Douglas MacArthur, 
prosecuted, in the Far East some senior Japanese army officers charged 
with '*War Crimes" in the Pacific theater — the most inglorious of these 
cases being that of General Yamashita. 

Also since World War II, a number of countries, among which are 
the Federal Republic of Germany, Israel and France, have continued to 
search for **war criminals" and have prosecuted them under their inter- 
nal laws. Israel's 1960 Eichmann case, and France's present Barbie case 
are the two most causes celebres ones. 

The U.S., however, rather than enacting legislation giving Federal 



* Professor of Law, DePaul University, Chicago, Illinois; Dean, International Institute of 
Higher Studies in Criminal Science; Secretary-General, International Association of Criminal Law. 

261 



262 



GASE W. RES. J. INTL L. 



Vol. 18:261 



Courts Jurisdiction to try such cases, elected to seek out such persons for 
purposes of denaturahzation and deportation and only in 1985 did some 
U.S. courts extradite persons accused of such crimes to Israel and Yugo- 
slavia. To facilitate the pros-cutorial processes of interested states the 
United Nations sponsored a Convention in 1968 on the Nonapplicabihty 
of Statutes of Limitations to War Crimes and Crimes Against Humanity, 
but with few ratifying states, and the Council of Europe followed suit. 

Thus the process that commenced at Nuremberg in 1945 did not 
end then and there but continued beyond it and is still on-going in some 
respects. But the legacy is more symbolic than substantial. 

On a different level the codification of international criminal law has 
progressed, however so slightly, through the eflForts of the International 
Law Commission first in its elaboration of the Nuremberg Principles and 
then through the 1954 Draft Code of Offenses Against the Peace and 
Security of Mankind, but a more positive final outcome is still awaited. 
In the meantime however a number of international Instruments have 
been elaborated by the United Nations concerning a variety of subject- 
matters such as Aggression, War Crimes, Genocide, Apartheid, Slavery 
and Slave-related Practices, Torture, Piracy, Hijacking, Kidnapping of 
Diplomats, Taking of Civilian Hostages to Hst only some of the twenty- 
two international crimes. But this ad hoc progressive development of 
international criminal law, through the means of separate and unrelated 
instruments has not been propitious for the comprehensive codification 
of that area of international law. In fact, it may have negatively affected 
governmental and populär perceptions about the need for an interna- 
tional criminal code. Worse yet, it has drawn the energies of govern- 
ments and national legislatures in recurring efforts to negotiate, sign and 
ratify new and disparate international instruments instead of focusing 
these energies on a Single comprehensive Code. The process of multilat- 
eral Conventions on diflFerent subject matters has also been uncoordinated 
and depends largely on the ebb and flow of populär reactions conditioned 
by an ever more influential mass media. Thus, increased concerns with 
individual acts of terror-violence tended to obscure other more serious, 
and quantitatively more numerous forms of human depradations such as 
Genocide. Regretably there has never been any rational policy for the 
elaboration of specific instruments on international criminal law. Thus 
no one can explain why there has never been a Convention on "Crimes 
Against Humanity," which was one of the three Nuremberg crimes, the 
other being '*Crimes Against Peace" and "War Crimes." Similarly no 
one can explain why there is only one Convention on Genocide (which 
Covers in part some of the contents of "Crimes Against Humanity" as 
defined by the Nuremberg Principles) which excludes quasi-Genocidal 
acts of mass murder as has been witnessed in several conflicts since 
World World II. Considering all the quasi-Genocidal events that took 



1986] 



FORTY YEARS AFTER 



263 



/ 



place since that Convention was signed in 1948, such as Biafra, Ban- 
gladesh and Kampuchea, which resulted in an estimated five million per- 
sons killed and which do not fall under the provisions of the Genocide 
Convention it is difficult to find justification let alone reasons for this 
neglect. Conversely, there have been twelve Conventions, with one more 
in progress, on the international control of drugs. Is international con- 
trol of drugs a more significant human interest than the control of war 
and mass killing? The answer is that the realpolitik of our world is sim- 
ply that humanistic concerns are secondary to a variety of other State 
interests. As a result international Cooperation is more liicely to be mani- 
fested in areas vvhere there are less opportunities for ideological or other 
conflicting State interests. This explains, in part, why aggression, the in- 
ternational crime par excellence, remains embodied in a United Nations 
General Assembly resolution adopted by consensus in 1974 after twenty 
years of efforts to reach that result and is not a binding Convention. Thus 
no binding international Convention states explicitly that "Aggression" is 
an international crime, what such acts consist of, and what means should 
be employed by the world Community to prevent such acts and enforce 
such norms. Instead "Aggression" has been treated, since the adoption 
of the U.N. Charter in San Francisco in 1946 as a pohtical crime whose 
determination and sanctions are left to the judgment of a small political 
club, the Security Council, where the major world powers retain a veto 
over such decisions. Long gone are the days where the same major pow- 
ers which as allies during World War II agreed to prosecute at Nurem- 
berg and Tokyo those who committed "Crimes Against Peace." Granted 
that since then the world has been spared major confrontations resulting 
in all out wars. But the number of regional and local conflicts producing 
their ample share of human devastation have flourished with impunity. 
From Korea in 1951 to the protracted Viet Nam War which lasted two 
decades, every conceivable form of direct and indirect aggression by 
States in the Middle Hast, Asia, Latin America and Eastern Europe has 
taken place since 1945. But the prospects of more clearly enunciated 
proscribing norms are as remote as is any reasonable expectation of their 
objective international enforcement. Nonbinding international pro- 
nouncements have and will continue to abound, but such expressions will 
hardly take the place of an effective System of prevention and control. To 
that extent Nuremberg and Tokyo have left a memory and not a 
precedent. 

So as the world Community may recall in 1986, the fortieth anniver- 
saryof Nuremberg and Tokyo, stock-taking is as appropriate as it is dis- 
turbing. Some progress has been made, but too little that took too long 
in the face of so much that is needed mars that progress. We must reas- 
sess the three major categories of criminal charges established at Nurem- 
berg, "Crimes Against Peace," "War Crimes" and "Crimes Against 



♦/ 



264 



GASE W. RES. J. INTL L 



Vol. 18:261 



Humanity." The first category, *'Crimes Against Peace," is more defined 
than it was but it is still not comprehensive and the enforceability of the 
1974 Resolution defining aggression is as questionable as is the effective- 
ness of the Security Council as a mechanism of prevention and control. 
The second category, *'War Crimes," has seen much more progress in 
codification and implementation. In 1949, four Geneva Conventions 
were passed which codified with great detail the regulation of armed con- 
flicts. This was followed by two Additional Protocols in 1977. In the 
interim there have been a number of Conventions covering a variety of 
aspects concerning armed conflicts. The third category, ''Crimes Against 
Humanity," has yet to be the subject of a Convention save for the Geno- 
cide Convention, which though broadly defining Genocide does not en- 
compass mass-killings of quasi-genocidal proportions, and does not 
include all that *'Crimes Against Humanity" was said to contain under 
the Nuremberg Principles. In part, some of these violations are incorpo- 
rated in the Conventions on Apartheid, Slavery and Slave-Related Prac- 
tices and Torture. But such a piecemeal normative approach leaves 
many voids and loopholes, not to speak of other aspects that are still not 
covered by adequate normative proscriptions, such as human experimen- 
tation and other serious violations of fundamental human rights affecting 
life, physical integrity and personal liberty. 

Concerning the establishment of an international criminal court, the 
two U.N. Draft Statutes of 1951-1953 have been tabled, and the 1980 
Draft Statute for Implementation of the Apartheid Convention establish- 
ing an international criminal Jurisdiction (drafted by the writer as a Con- 
sultant to the U.N.) have all remained dead-letter with no discernible 
hope of their adoption. 

The U.N. and other regional organizations such as the Council of 
Europe and the Organization of American States have however devel- 
oped a large number of human rights Conventions. These Conventions 
and their implementation, particularly within the European context by 
virtue of the authority of the European Commission of Human Rights 
and of the European Court of Human Rights, must be deemed a signifi- 
cant progress toward the humanization of the world Community. In 
some respects this too is an outgrowth of, or part of the legacy of Nurem- 
berg, and it is a positive one. As such it has to be placed in the scales of 
the balance along with all the missed opportunities discussed above. 

In "Aggression Against Authority: The Crime of Oppression and 
Other Crimes Against Human Rights," Professor Jordan Paust, a most 
proHfic publicist whose contributions to the literature of international 
law has enriched this field, aptly focuses the readers' attention on the 
weaknesses of the international normative prescriptive scheme of Control- 
ling Aggression and protecting human rights. He retraces the history of 
Aggression, efforts to codify it, and critically assesses results and out- 



•^ ^ 



1986] 



FORTY YEARS AFTER 



265 



comes. His contribution also encompasses considerations on Genocide 
and "Crimes Against Humanity." There too he Stresses historical back- 
ground and contemporary weaknesses. His overall thesis assesses sanc- 
tioning strategies in response to these violations, pointing to the 
weaknesses, but also to some potential modalities of domestic enforce- 
ment in the U.S. in order to engender greater compliance. Professor 
Paust's article is not an exhaustive study of Aggression, Genocide, 
"Crimes Against Humanity" and other serious violations of fundamental 
human rights. Instead it is a brief introduction to these transgressions, 
though expressed with no lesser appropriate commitment to the values 
he seeks to uphold. The title does not necessarily reflect what the article 
contains, but as with his other writings this distinguished author appeals 
to the intellectual appetite of the reader, and fully fulfills that portion of 
it that feeds on references. 

In the article **Should the U.S. Constitution's Treaty-Making Power 
Be Used As The Basis for Enactment of Domestic Legislation," Profes- 
sor Robert Friedlander takes a critical view of the textual formulations of 
the provisions of the Genocide Convention and expresses reservations 
and negative views as to its domestic implications. As one who has fre- 
quently criticized international criminal Conventions for their technically 
inappropriate terminology that does not satisfy the rigors of a penalist's 
analysis, I can only but share some of his misgivings. Professor Fried- 
lander is also a prolific and distinguished author who has contributed 
much to the literature on international criminal law. I disagree with the 
tone and spirit of this article, however. Shocking as it may seem to some, 
the U.S., ostensibly the champion of human rights, the principal power 
that defeated the Axis forces, the principal force behind the Nuremberg 
and Tokyo Trials, and the instigator and influential participant in the 
drafting of the Genocide Convention, had opposed its ratification from 
1948 to 1985, and then ratified it with reservations which reflect the 
United States' reluctance to subject itself to international scrutiny. Pro- 
fessor Friedlander articulates some of the arguments employed by those 
who opposed and then supported ratification of the Genocide Conven- 
tion with such reservations. Some of the issues he raises in the article 
are, however, meritorious. The provisions on conspiracy and complicity 
are too far reaching, but then they were put in the Convention in response 
to the U.S. After all, most of the world in 1948, save for a few countries 
which follow the common law, did not, and still do not, know conspiracy 
as a crime. Indeed it was at the U.S.'s insistence that conspiracy was 
made part of the Nuremberg Charter and prosecution. Other allies like 
France and the U.S.S.R. had opposed it because that type of inchoate 
crime is not known to their legal Systems, and even England was hesitant 
about it. Now the U.S. finds fault with the Convention because of that! 
The same surprised reaction will surely come at the U.S. reservation to 



•,* ^ 



266 



CASE W. RES. J. INTL L 



Vol. 18:261 



the Provision in the Convention concerning Jurisdiction of an eventual 
international criminal court. Was it not the U.S. that championed Nu- 
remberg and Tokyo? Or is it because this administration suddenly found 
it unpleasant to defend its actions before the International Court of Jus- 
tice in the Nicaragua case that the idea of an eventual international crim- 
inal court has become so unfathomable! Surprisingly however no one has 
voiced, let alone decried the great loophole in the Convention. There is 
no crime of Genocide under the Convention if the group intended to be 
destroyed in whole or in part is a social or political group. Similarly no 
one decries the absence of provisions on quasi-Genocidal acts of mass 
killings that are not accompanied with the intent to destroy in whole or 
in part a given ethnic or social group. Thus the killing of one person 
when performed with such intent is Genocide, but the killing of a million 
people or more without such intent is not Genocide, and for that matter 
may not even be an international crime at all. 

For a nation built on the Rule of Law, with such a strong legal 
tradition, and such a historic record for supporting and promoting inter- 
national law, these and some other manifestations of its foreign policy 
since World War II are a blot on the tradition, the record and the values 
of this great nation. 

These contributions are fittingly part of an issue of this Journal dedi- 
cated in part to the fortieth Anniversary of Nuremberg. More specifi- 
cally focused articles exploring more questions relating to this legacy 
would have also been appropriate for this issue. We have all too few 
occasions to remind and be reminded of how thin is the veneer of our 
human civilization and how much we still have to do to thicken it in the 
face of so many, so constant and so far-reaching violations of basic and 
fundamental human rights occurring on every continent. Otherwise, as 
Santayana once said: "Those who forget the mistakes of the past are 
condemned to repeat them." 



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THE RECORD 

OF THE ASSOCIATION OF THE BAR 



JANUARY/FEBRUARY1997 



:!■. 



VOLUME 52 



'-'%?Ä")S^*" 



NUMBER 1 



Association Activities 






■■W 



■»rR;«,M»»WV 



Statement of Michael A. Cooper on Behalf 
of The Association of the Bar of the City of New Yoric 
to the New York State Senate Judiciary Committee 
on the Nomination of Justice Richard C. Wesley 
to the New York Court of Appeals 



Review of the Pataki Weifare Plan 

by The Weifare Working Group 



w 



A Delicate Balance: Ethical Rules for Lawyers Who 
Represent Incompetent Clients 

by The Committee on Professional Responsibility 

Antidumping Law: A Proposed Law to Consider 
Downstream Industry 

by The Committee on International Trade^ 

Leport on^avB^pp^'^'d Internilional WÜTfüial 

by The Committee on International Law and 
le Committee on International Human Rights 

New Members 
The Library 



13 



34 



48 



79 



123 



130 



Ä«ÄW'WJ''.*<.r'"**^ ^. w, .■..,.■* ,..vu , 



THE RECORD 

OF THE ASSOCIATION OF THE BAR 
OF THE CITY OF NEW YORK 

JANUARY/FEBRUARY 1997 



Volume 52 



Number 1 



EDITORIAL BOARD 



Michaela. Cardozo 
President 



Michaela. Cooper 
Chair, Executive Committee 



Fern Schair 

Executive Secretary and 

Chief Administrative Officer 



Alan Rothstein 
General Counsel 



THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK is 
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REPORT ON THE PROPOSED 
INTERNATIONAL CRIMINAL COURT 



by The Commitiee on International Law and 
The Committee on International Human Rights 

INTRODUCTION 

The Association of the Bar of the City of New York strongly endorses 
the creation of a permanent international criminal court to prosecute and 
punish individuals who commit the most serious crimes irnder international 
law.^ The world's first permanent international criminal court ("ICC") would 
be the last major international institution created in this Century, a time when 
the inhumanity of armed conflict and internal atrocities has become uncon- 
scionably familiär. Responding to these recurring humanitarian atrocities 
has been impeded by the fact that, as the Supreme Court of Israel lamented in 
the Eichmann judgment, "there still does not exist either an International 
Criminal Court or even international penal machinery.**^ A proposal for a 
permanent tribunal is attracting significant support, however, and assuming 
a continued high level of commitment, the Court could be operational by late 
1998. 

"The most compelling reason for establishing an ICC is that persons 
who commit the most serious crimes will otherwise go unpunished[.]"^ A 
permanent ICC will reduce the likelihood of international crimes going un- 
punished while promoting the consistent application of international crimi- 



* The Association of the Bar of the City of New York expressed support for the 
establishment of an international criminal court in letters sent in Februaiy 1996 to President 
Clinton and senior government officials. See Letters to William J. Clinton, Robert Dole, 
Newt Gingrich and Conrad K. Harper, from Barbara Paul Robinson, President of the Associa- 
tion of the Bar of the City of New York, dated February 26, 1996 . 

The American Bar Association and the New York State Bar Association also have en- 
dorsed the establishment of an international criminal tribunal. See ABA Section of Interna- 
tional Law and Practice, Report of the Task Force on an Intemational Criminal Court of the 
American Bar Association 1, 63 (1995); Working Group on Improving the Effectiveness of 
the United Nations, International Criminal Court, 29 Int'l Law. 300 (1995) (recommending, 
in August 1994 vote of ABA House of Delegates, "that the United States Government take an 
active role in the establishment of an intemational criminal court"). 

^ 36 I.L.R. 277, 292 (Sup.Ct.Israel 1962) (attributing lack of international criminal 
court to "present retarded stage of development"). 

^ Comments of the Government of the United States of America on Draft Articles 
for a Statute on an Intemational Criminal Court 10 (June 1, 1994). 



79 



80 



THE RECORD 



Vol. 52, No. 1 



nal norms. The ICC will not diminish the authority or responsibility of na- 
tional tribunals to punish international criminals/ but in many cases na- 
tional Courts are simply unable or unwilling to proceed. In these cases, when 
the alternative is impunity for the perpetrators of international crimes, the 
ICC wouldbe authorized to exercise Jurisdiction. 

Permanency is required primarily because a permanent court is likely to 
be more effective than ad hoc tribunals, which are inadequate in several re- 
spects. First, marshaling the necessary political will and resources required 
to create ad hoc tribunals is notoriously difficult. Second, reliance solely on 
ad hoc tribunals or national courts results in a System of international crimi- 
nal enforcement that appears idiosyncratic or selective. Why create tribu- 
nals in the cases of Yugoslavia and Rwanda, for example, but not in other 
equally compelling situations? In addition, the fundamental issue of whether 
the Security CounciPs powers encompass the creation of criminal tribunals 
persists. A permanent judicial institution is more appropriately created by 
legislation, which in the case of the ICC means a multilateral treaty.^ Fi- 
nally, resolution-created judicial bodies are innately temporal as Security 
Council resolutions can be revoked or amended.^ 

An independent ICC, which adheres to the highest Standards of faimess 
and due process, also is an important component of the goal of achieving 
international peace and justice. For societies to emerge from the trauma of 
prolonged armed conflict or internal strife, amechanism for justice is neces- 
sary to hold the perpetrators of international crimes responsible and thereby 
promote stability. In the absence ofa forum for criminal accountability, the 
blame for past atrocities may become a permanent barrier to national recon- 
ciliation and justice. 

In addition, the drastically changed nature of international and internal 
conflicts requires an institution capable of enforcing clearly established law. 
During this Century, warfare has evolved from conflicts where the principal 
victims are members of national armed forces, to conflicts where the major- 
ity of victims are innocent civilians. In many instances civilians have been 
the prime targets of armed combatants, in clear violation of accepted norms 
of international criminal law. A minimal but essential response to the indis- 



* In this respect the ICC Statute differs from the Statute for the International Tribu- 
nal for Yugoslavia, which in Article 9(2) proclaims the TribunaPs "primacy over national 
courts." Report of the Secretary-General pursuant to paragraph 2 of Security Council Reso- 
lution 808 (1993), U.N. Doc. S/25704 (1993) (hereinafter "Secretaiy- General' s Yugoslavia 
Tribunal Report"). The Statute is contained in an Annex to the Secretary-General' s Report 
(hereinafter referred to as "Statute for the Yugoslavia Tribunal"). 

* James Crawford, The ILC Adopts a Drafl Statute for an International Criminal 
Court, 89 Am. J. Int'l L. 404, 416 (1995). 

* Id. 



PROPOSED INTERNATIONAL COURT 



81 



criminate barbarity of modern warfare, therefore, should be a permanent 
mechanism to enforce established international criminal law. 

A permanent ICC also would likely have a deterrent effect, a crucial 
goal of any System of criminal law enforcement. The possibility of arrest, 
prosecution and punishment by a permanent international tribunal, especially 
in countries without effective judicial institutions, should serve to deter fu- 
ture atrocities. The Court's deterrent effect is also enhanced by the likeli- 
hood that the ICC, a secondary forum available only ifa national court is 
unavailable or ineffective, will likely spur prosecutions by national tribunals 
for genocide, war crimes and crimes against humanity. 

Finally, the ICC merits support because the current proposal, a draft 
Statute^ adopted in 1994 by the International Law Commission ("ILC"),^ pre- 
sents a realistic and workable basis for an effective court. The draft Statute 
establishes an ICC by multilateral treaty, open for ratification by interested 
States, that would prosecute only when national courts are unable or unwill- 
ing to'proceed and the violators would otherwise escape justice.' National 
tribunals will remain the preferred forum for prosecution of international 
crimes, and the right to seek extradition and other forms of international 
judicial assistance will not be affected. The consensus engendered by the 
draft Statute is apparent in the nearly unanimous agreement reached, m De- 
cember 1996, to schedule a high-level diplomatic Conference for 1998 that 
will negotiate and adopt a treaty creating the international cnmmal court. 



^ Report of the International Law Commission on the work of its f y-^xth sess^^^^^^ 
49 U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994 (Y;::2Jlll 
Statute"). Tlie Draft Statute also contains extensive commentary by the International Law 
Commission (hereinafter "International Law Commission Commentary )' j 

. TTie International Law Commission, whose 34 memben. are ^\^'ll^^^^ 
Assembly and serve in their individual capacity, is an advisory body of legal experts estab 

thejurisdictionofthe International Court of Justice ( ^^'>'\\*'^"'^.\.,.s(^.on\ysiMes 
tion only over States. See Statute of the International Cou^f^^'^; ^^^^^ ^^.ip,, ^ji^ial 
may be parties in cases before the Court."). Created m 1945, the ICJ .s me P J \ 
organ of the United Nations, and all U.N. member states are automat,cally part.es 

Statute. 5ge U.N. Charter, art. 93(1). ♦:^;na of the diplomatic con- 

.« Of the 55 countries that expressed apos,t,onon the .m.ngofjhe^dp^ ^^^^ ^^^ 

ference during the October/November 1996 meetmgs of the ^*"!7 j^,; f fte diplo- 
gal) Committee, only Algeria, China and Mexico d.d not «»lorse m 

matic Conference in 1998. See NGO Coalition f- »». '""=^"f 'f*' ':/"^,gc.apc.org/icc/ 
For ms Diplomatic Conference (available on the .ntemet at http.//www g 

1998conf.html). 



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L OUTLINE OF THE REPORT 

This Report aims to increase awareness of, and support for, the estab- 
lishment of a permanent international criminal court. The Report begins by 
explaining the present momentum in favor of the ICC in terms of several 
factors: (1) a series of United Nations initiatives and proposals; (2) the im- 
pact of previous international criminal tribunals; and (3) the continuing matu- 
ration of international criminal law. 

The next section describes the structure of the Court as set forth in the 
draft ICC Statute. The Report then examines several prominent issues: (1) 
the ICC's subject matter Jurisdiction; (2) the procedures for initiating pros- 
ecutions; and (3) protection of the rights of defendants and suspects. Fi- 
nally, the Report discusses the position of the United States, and argues that 
Support for the proposed ICC is entirely consistent with established legal 
principles and policy of the United States. The Report concludes with the 
following recommendations: 

• The United States should work toward the prompt finalization and 
ratification of the ICC treaty. 

The ICC's subject matter Jurisdiction initially should be limited to 
genocide, war crimes and crimes against humanity. 

• The draft Statute 's State consent requirements, which determine 
whether the ICC*s Jurisdiction may be exercised, may unnecessarily inhibit 
the exercise of the Court's Jurisdiction and should be modified. 

• The Prosecutor should be permitted to initiate investigations, in ad- 
dition to State parties and the Security Council. 

• The Security Council ' s primary role in the maintenance of interna- 
tional peace and security should not include the power to block the initiation 
of cases within the ICC*s juiisdiction. 

• The Protections afforded accused persons and defendants under in- 
ternationally recognized Standards of faimess and due process must be rec- 
ognized and enforced by the ICC. 

IL PROLOGUE TO THE CREATION OF AN 
INTERNATIONAL CRIMINAL COURT 

The international criminal court, although long considered either unat- 
tainable or undesirable,*' may well be established by the close of this cen- 



11 



See. e.g., Letter from Janet G. Mullins, Assistant Secretary, Legislative Affairs, to 
Hon. Dan Quayle, President of the Senate, dated October 2, 1991, in Senate Comm. on 
Foreign Relations, International Criminal Court, S. Rep. No. 71, 103d Cong., Ist Sess., § 3 
(1993) (hereinafter "Senate Report") (noting Opposition or ambivalence of Canada, Brazil, 
Austria, the Nordic countries, Mexico, Ghana and Australia on the need to create an interna- 
tional criminal court). 



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PROPOSED INTERNATIONAL COURT 



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I. OUTLINE OF THE REPORT 

This Report aims to increase awareness of, and support for, the estab- 
lishment of a permanent international criminal court. The Report begins by 
explaining the present momentum in favor of the ICC in terms of several 
factors: (1) a series of United Nations initiatives and proposals; (2) the im- 
pact of previous international criminal tribunals; and (3) the continuing matu- 
ration of international criminal law. 

The next section describes the structure of the Court as set forth in the 
draft ICC Statute. The Report then examines several prominent issues: (1) 
the ICC's subject matter Jurisdiction; (2) the procedures for initiating pros- 
ecutions; and (3) protection of the rights of defendants and suspects. Fi- 
nally, the Report discusses the position of the United States, and argues that 
Support for the proposed ICC is entirely consistent with established legal 
principles and policy of the United States. The Report concludes with the 
following recommendations: 

• The United States should work toward the prompt fmalization and 
ratification of the ICC treaty. 

• The ICC*s subject matter Jurisdiction initially should be limited to 
genocide, war crimes and crimes against humanity. 

• The draft statute's State consent requirements, which determine 
whether the ICC*s Jurisdiction may be exercised, may unnecessarily inhibit 
the exercise of the Court*s Jurisdiction and should be modified. 

• The Prosecutor should be permitted to initiate investigations, in ad- 
dition to State parties and the Security Council. 

• The Security Council* s primary role in the maintenance of interna- 
tional peace and security should not include the power to block the initiation 
of cases within the ICC*s Jurisdiction. 

• The Protections afforded accused persons and defendants under in- 
temationally recognized Standards of faimess and due process must be rec- 
ognized and enforced by the ICC. 

IL PROLOGUE TO THE CREATION OF AN 
INTERNATIONAL CRIMINAL COURT 

The international criminal court, although long considered either unat- 
tainable or undesirable,'* may well be established by the close of this cen- 



See, e.g., Letter from Janet G. Mullins, Assistant Secretary, Legislative Affairs, to 
Hon. Dan Quayle, President of the Senate, dated October 2, 1991, in Senate Comm. on 
Foreign Relations, International Criminal Court, S. Rep. No. 71, 103d Cong., Ist Sess., § 3 
(1993) (hereinalter "Senate Report") (noting Opposition or ambivalence of Canada, Brazil, 
Austria, the Nordic countries, Mexico, Ghana and Australia on the need to create an interna- 
tional criminal court). 



tury.^2 xhe recent momentum in favor of the ICC has largely been the result 
of three factors. First, a series of initiatives undertaken under United Nations 
auspices has supplied an institutional context for ICC proposals. Second, 
prior ad hoc international criminal tribunals have demonstrated the feasibil- 
ity of criminal law enforcement through international tribunals. Finally, in- 
ternational criminal law now provides a suitable basis for defming the crimes 
within the ICC*s subject matter Jurisdiction. 

A. The United Nations and the Proposed ICC 

The United Nations has provided an institutional framework for propos- 
als and debates conceming international criminal law and an international 
criminal court. The first initiatives, relating to the codification of interna- 
tional criminal law, resulted from a 1947 General Assembly resolution re- 
questing the International Law Commission to prepare a "draft Code of of- 
fences against the peace and security of mankind."^^ The ILC continued to 
work on the draft code of crimes, until finally, in July 1996, the International 
Law Commission adopted the final text of twenty draft articles, with com- 
mentaries, comprising the Draft Code of Crimes Against the Peace and Se- 
curity of Mankind.^"* 

Shortly after work on the Draft Code of Crimes began in 1947, the Gen- 
eral Assembly passed a resolution recognizing that "there will be an increas- 
ing need of an international judicial organ for the trial of certain crimes un- 
der international law[.]"^^ As aresult, in 1950 the General Assembly created 
a **Committee on International Criminal Jurisdiction" composed of repre- 



" See Proposed International Criminal Court Should Be Operational Before The Tum 
of the Century, Preparatory Committee Told, U.N. Press Rel. L/2809 (1996) (describing State- 
ments of representative of France). Adriaan Bos of The Netherlands, Chairman of the Prepa- 
ratory Committee on the Establishment of an International Criminal Court, stated in April 
1996 that "[l]ast year at this time many countries, including several major powers, made 
Statements indicating their governments were not yet convinced of the need for an Interna- 
tional Criminal Court . . . This year none indicated they opposed the establishment of an ICC. 
This fact is an indicator of the important progress achieved in a short period of time." Will- 
iam Pace, Serious Progress Achieved at April ICC "Prep Com ", 1 The International Criminal 
Court Monitor 1 (July/Aug. 1996) (emphasis in original). See also Crawford, supra note 5, at 
415 (noting "a distinct change in the balance of professional opinion. Most international 
lawyers hitherto regarded a permanent criminal court as unrealistic and even undesirable. 
Many now seem to have changed their minds."). 

G.A. Res. 177 (II) (1947). 

Report of the International Law Commission on the work of its forty-eighth Ses- 
sion, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996) 
(hereinafter "Draft Code of Crimes"). 

G.A. Res. 260 B (III) (1948). 



13 
14 



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PROPOSED INTERNATIONAL COURT 



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sentatives from seventeen nations to "prepar[e] one or more preliminary draft 
Conventions and proposals relating to the establishment and the Statute of an 
international criminal court.**^^ 

In 195 1 , the Committee on International Criminal Jurisdiction completed 
areport and draft Statute for an international criminal court.^^ The General 
Assembly then urged UN member states to submit comments and sugges- 
tions, and requested the Committee to prepare another report and draft Stat- 
ute exploring "the implications and consequences of establishing an interna- 
tional criminal court and of the various methods by which this might be 
done.*'^^ The Committee submitted a revised draft Statute in 1953.^^ 

Further consideration of an international criminal court ceased follow- 
ing the 1953 revised draft Statute, primarily due to Cold War politics and 
controversy over the proposed court*s Jurisdiction. Academic specialists^^ 
and nongovemmental organizations,^^ however, nurtured various proposals. 

In 1989, Trinidad and Tobago, concemed with rampant narcotics traf- 
ficking in the Caribbean, raised the issue of an international criminal court 
before the Sixth (Legal) Committee of the General Assembly. Trinidades 
initiative led to a request ft-om the General Assembly for the ILC, in the 
context of its ongoing work on the Draft Code of Crimes, to consider "the 
question of establishing an international criminal court or other international 
criminal trial mechanism[.]**" The ILC subsequently established aworking 
group to develop a structure for an international criminal court.^^ 

In November 1992, the General Assembly endorsed the efforts of the 
ILC working group and requested it to continue drafting a Statute for an 
international criminal court.^'' In 1993, spurred in part by the Security 



" G.A. Res. 489 (V) (1950). The Committee was composed of representatives of 
Australia, Brazil, China, Cuba, Denmark, Egypt, France, India, Iran, Israel, the Netherlands, 
Pakistan, Peru, Syria, the United Kingdom, the United States and Uruguay. Id. 

*' Report of the Committee on International Criminal Jurisdiction on its Session held 
from 1 to 31 August 1951, U.N. GAOR, 7th Sess., Supp. No. 11, U.N. Doc. A/2136 (1952). 

" G.A. Res. 687 (VII) (1952). 

** Report of the 1953 Committee on International Criminal Jurisdiction, 27 July-20 
August 1953, U.N. GAOR, 9th Sess., Supp. No. 12, U.N. Doc. A/2645 (1954). 

^® See M. Cherif Bassiouni, A Draft International Criminal Code and Draft Statute 
for an International Tribunal (1987); Benjamin B. Ferencz, An International Criminal Court, 
A Step Toward Peace: A Documentary Histoiy and Analysis (1980). 

^ Nongovernmental organizations play an active role in lobbying and disseminating 
information. The NGO Coalition for an International Criminal Court^s home page at http:// 
www.igc.apc.org/icc contains commentary, UN documents and govemment position papers. 

» G.A. Res. 44/39 (1989). 

® Report of the International Law Commission on the work of its 44th Session, U.N. 
GAOR, 47th Sess., Supp. No. 10, U.N. Doc. A/47/10 (1992). 

^ G.A. Res. 47/33 (1992). 



Councirs decision to create an ad hoc tribunal to prosecute atrocities com- 
mitted in the former Yugoslavia, the ILC working group completed a draft 
Statute and report, which the ILC referred to the General Assembly." The 
General Assembly received the ILC 's 1993 draft Statute "with appreciation** 
and requested the ILC to continue its work and formulate a final draft.^^ In- 
corporating the extensive comments made by states in the Sixth Committee, 
as well as by nongovemmental organizations, the ILC significantly revised 
the earlier draft and in 1994 adopted a Draft Statute for an Intemational Crimi- 
nal Court.^^ 

In December 1994 the General Assembly established an Ad Hoc Com- 
mittee to discuss the ILC 's draft Statute and identify revisions that would 
command broad political acceptance. The Ad Hoc Committee met for two 
two-week sessions in 1995. At the conclusion of the Ad Hoc Committee 's 
1995 sessions a consensus emerged among participating states that although 
the draft Statute provided a suitable ft-amework for discussion, fiirther work 
was needed.^* 

In December 1995, the General Assembly adopted aresolution creating 
the United Nations Preparatory Committee on the Establishment of an Inter- 
national Criminal Court, open to all UN member states.^^ The Preparatory 
Committee's overall mandate, wider in scope than the Ad Hoc Committee's 
mandate, has been "to prepar[e] a widely acceptable Consolidated text of a 
Convention for an intemational criminal court. "^° The draft Convention that 
emerges ft-om the Preparatory Committee will be the basis for an intema- 
tional diplomatic Conference of "plenipotentiaries" to finalize and adopt the 
ICC statute.^^ The Preparatory Committee includes representatives from more 
than 120 countries, and met from March 25- April 12 and from August 12- 
30, 1996, at UN Headquarters in New York. 

The two Preparatory Committee sessions in 1996 made significant 
progress, as delegations and NGOs produced a significant quantity of alter- 



^ Report of the Intemational Law Commission on the work of its 45th Session, 
45 U.N. GAOR, 48th Sess., Supp. No. 10 at 255, 335, U.N. Doc. A/48/10 (1993). 

^ G.A. Res. 48/31 (1993). 

^ Draft Statute, supra note 7. 

" See Report of the Ad Hoc Committee on the Establishment of an International 
Criminal Court, 50 U.N. GAOR Supp. No. 22, U.N. Doc. A/50/22 (1995). 

^ See G.A. Res. 50/46 (1995). 

^ Report of the Preparatory Committee on the Establishment of an International 
Criminal Court, Volume 1 (Proceedings of the Preparatory Committee during March- April 
and August 1996), U.N. GAOR, 51st Sess., Supp. No. 22, Ij 6, U.N. Doc. A/51/22 (1996) 
(hereinafter "Preparatory Committee Report'*). 

'* A treaty generally is adopted at a diplomatic Conference, and then is open for 
signature for a period of time. A signature to a treaty does not bind a State in the absence of 
endorsement by ratification. A State also may become a party to a treaty by "accession," or, 
in the case of newly independent states, by "succession." 



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Vol. 52, No. 1 



native texts, proposals and commentary.^^ The measure of the Committee's 
progress is the resolution adopted by the Sixth Committee in November 1996. 
The resolution provides that the diplomatic Conference for "finalizing and 
adopting a Convention on the estabhshment of an international criminal 
court,'*" will be held in 1998. The resolution also adopted the recommenda- 
tion of the Preparatory Committee for an additional nine weeks of Prepara- 
tory Committee sessions through April 1998.'^ 

The Organization of the Preparatory Committee 's remaining sessions 
through April 1998 will be "in the form of open-ended working groups, con- 
centrating on the negotiation of proposals with a view to producing a draft 
Consolidated text of a Convention to be submitted to the diplomatic Confer- 
ence."^^ The Preparatory Committee is directed to address anumber of spe- 
cific issues, including definition and Clements of crimes; principles of crimi- 
nal law and penalties; Organization of the Court; complementarity and trig- 
ger mechanism; Cooperation with states; and finances.^^ 

In December 1996, the General Assembly adopted the Sixth Committee's 
resolution by consensus. Following the diplomatic Conference, which is 
scheduled to be held in Italy in late 1998, an ICC treaty will enter into force 
upon ratification by a specified number of states.^^ 



B. Enforcement by International Criminal Tribunals 

The proposed international criminal court differs in important respects 
fi*om the tribunals created following World War II and in response to the 
atrocities in Yugoslavia and Rwanda. The ICC, for example, will not be 
limited in scope to a specific Situation or conflict, nor will it be created pur- 



'^ Volume II of the Preparatory Committee's Report contains the various proposals 
and alternative texts submitted by states. Report of the Preparatory Committee on the Estab- 
lishment of an International Criminal Court, Volume II (Compilation of Proposals), U.N. 
GAOR, 51st Sess., Supp. No. 22A, U.N. Doc. A/51/22 (1996) (hereinafter "Preparatoiy Com- 
mittee Compilation of Proposals"). 

» U.N. Doc. A/C.6/51/L.10 (1996). 

^ Id.; Preparatory Committee Report, supra note 30, ^ 368(a). The Preparatory 
Committee's 1997 meetings willbe held February 11-21, August 4-15 and December 1-12. 
The 1998 Session willbe from March 16- April 3. 

^^ U.N. Doc. A/C.6/51/L.10 (1996) (quoting Preparatory Committee Report, supra 
note 30, ^ 368). 

** Id. 

'^ Proposals ranged from 25 to 90 ratifications. Preparatory Committee Report, supra 
note 30, ^ 28. The Intemational Commission of Jurists, observing that international human 
rights treaties generally do not require a large number of ratifications to enter into force, has 
suggested that 20 to 25 ratifications would be reasonable. Intemational Commission of Ju- 
rists, The Intemational Criminal Court: Third ICJ Position Paper, at 4-5 (Aug. 1995) (herein- 
after "ICJ Position Pqjer"). 



PROPOSED INTERNATIONAL COURT 



87 



suant to Security Council resolutions, as were the recent ad hoc tribunals. 
The proposed ICC, however, should be regarded as an extension of the legal 
and structural precedents established by the predecessor intemational crimi- 
nal tribunals, beginning with the landmark Nuremberg tribunal.^* 

The Allies created the Nuremberg Tribunal by the London Agreement 
for the Prosecution and Punishment of Major War Criminals of the European 
Axis. The tribunaPs Jurisdiction, established in the Charter of the Intema- 
tional Military Tribunal annexed to the London Agreement,^^ encompassed 
crimes against peace, which included aggression, war crimes, and crimes 
against humanity. The tribunal initially indicted twenty-four defendants and 
ultimately tried twenty-two of them, one in absentia, of whom nineteen were 
convicted."^^ The Nuremberg trials, of course, took place following a de- 
feated enemy's unconditional surrender and therefore in some respects are 
an inadequate precedent for a permanent court."*^ 

The ad hoc tribunals for the former Yugoslavia and Rwanda, created by 
the UN Security Council in 1993 and 1994, are more direct modeis for the 
permanent court in terms of stmcture and Jurisdiction.^^ In Yugoslavia, de- 
tails of mass murders and concentration camps precipitated Security Council 
resolutions that expressed concem over violations of intemational law in the 
region and affirmed individual responsibility for such violations.^^ On Feb- 



'* The Versailles Treaty following World War I provided for the Constitution of an 
international tribunal to prosecute the Kaiser and other alleged German war criminals. Al- 
though the tribunal was not established, in Article 228 of the Versailles Treaty the German 
government recognized the right of the Allies "to bring before military tribunals persons 
accused of having committed acts in violation of the laws and customs of war." The League 
of Nations, in 1937, opened for signature a Statute for an intemational criminal court, which 
India was the only country to ratify. 

^* Charter of the International Military Tribunal annexed to the Agreement for the 
Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 
Stat. 1544, 82 U.N.T.S. 279. 

^ The Intemational Military Tribunal for the Far East, established in Tokyo by proc- 
lamation of General Douglas MacArthur, tried 28 Japanese leaders, of whom 25 were con- 
victed. 

** Crawford, supra note 5, at 407. 

^^ The UN Charter gives the Security Council "primary responsibility for the mainte- 
nance of international peace and security[.l" U.N. Charter, art. 24(1). The Security Council's 
powers in discharging its responsibility with respect to "any threat to the peace, breach of the 
peace, or act of aggression," are set forth in Chapter VII, and include the use of force. U.N. 
Charter, art. 39. 

^ S.C. Res. 827 (1993); S.C. Res. 764 (1992). On October 6, 1992, the Council 
created a "Commission of Experts" to gather evidence relating to alleged violations of inter- 
national law. SC Res. 780 (1992). The Commission concluded in an interim report to the 
Security Council that serious violations of intemational humanitarian law were occurring 
and recommended the creation of an ad hoc intemational tribunal. See generally M. Cherif 
Bassionni, The United Nations Commission of Experts Established Pur suant to Security Coun- 
cil Resolution 780 (1992), 88 Am. J. Int'l. L. 784 (1994). 



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ruary 22, 1993, the Security Council decided to establish an international 
tribunal to prosecute persons responsible for serious violations of interna- 
tional humanitarian law committed in the former Yugoslavia since 1991.^ 
The Secretary-General subsequently issued a draft Statute for the tribunal^^ 
and on May 25, 1993 the Security Council formally established the Tribu- 



46 



nal. 

The International Tribunal for Yugoslavia consists of three primary Or- 
gans: a judiciary with eleven judges assigned to two Trial Chambers and an 
Appeals Chamber; the Prosecutor *s Office; and the Registry/^ The Tribunal 's 
Jurisdiction encompasses: (1) grave breaches of the Geneva Conventions of 
1949; (2) violations of the laws or customs of war; (3) genocide; and (4) 
crimes against humanity. As of late 1996, the International Tribunal for 
Yugoslavia had indicted 75 persons, although only seven are in custody at 
the Tribunars seat in The Hague. 

On May 7, 1996, the Tribunal commenced the trial of Dusko Tadi , the 
first defendant over whom it obtained custody. The trial foUowed an unsuc- 
cessful motion by Tadi that alleged the unjustified primacy of the Tribunal 
over national courts and a lack of subject matter Jurisdiction/* The Appeals 
Chamber, in "a unique and important event in the development of interna- 
tional law,*'^^ upheld the lawfiilness and subject matter Jurisdiction of the 
Tribunal ^° 



^ S.C. Res. 808. 

^ Statute for the Yugoslovia Tribunal, supra note 4. 

^ S.C. Res. 827. 

^ See Report of the International Tribunal for the Prosecution of Persons Respon- 
sible for Serious Violations on International Humanitarian Law Committed in the Territoiy 
of the Former Yugoslavia Since 1991, U.N. Doc. A/51/292, S/1996/665 (1996) (hereinafter 
"Third Report of the Yugoslavia Tribunal"). 

^ Prosecutor v. Tadic , No. IT-94-1-T (Yugo. Tribunal Trial Chamber, Aug. 10, 
1995), ajfd, No. IT-94-1-AR72 (Yugo. Tribunal, Appeals Chamber, Oct. 2, 1995), reprinted 
in 35 I.L.M. 32 (1996). 

Third Report of the Yugoslavia Tribunal, supra note 47, f 33. 
Prosecutor v. Tadic, supra note 48. The Tadi trial, in which 115 witnesses gave 
testimony, took seven months and ended on November 28, 1996. The Tribunals's next trial, 
of four Muslims accused of conmiitting atrocities at a detention camp in Bosnia, is scheduied 
to begin in late Januaiy 1997. 



49 

so 



t 



The history of the International Tribunal for Rwanda is similar to that of 
the Yugoslavia Tribunal. In the aftermath of the violence that consumed 
Rwanda starting in April 1994, the Security Council adopted a series of reso- 
lutions expressing alarm at violations of international law and determining 
that the conflict represented a threat to international peace and security.^^ On 
November 8, 1994, the Security Council, again acting under Chapter VII of 
the UN Charter, established the International Tribunal for Rwanda." 

The Statute of the International Tribunal for Rwanda gives the Tribunal 
subject matter Jurisdiction over: (l).genocide; (2) crimes against humanity; 
and (3) violations of Article 3 conmion to the Geneva Conventions and of 
Additional Protocol 11.^^ The Rwanda Tribunal has handed down twenty- 
four indictments, with thirteen persons in detention. 

The International Tribunals for Yugoslavia and Rwanda fimction under 
considerable impediments. Funding shortfalls and inadequate staffing, among 
other Problems, have complicated their operations.^"^ The most serious set- 
back, and one that jeopardizes the ultimate success of the Tribunals, hasbeen 
the failure to apprehend persons indicted of crimes.^^ 

These operational difficulties, however, should not obscure the impor- 
tance of the establishment and Operation of the first international criminal 
tribunals since Nuremberg. The process of creating the ad hoc tribunals, 
which coincided with the ILC deliberations on the permanent court, repre- 
sented a conceptual breakthrough which energized the pace of the ICC ini- 
tiative.^^ Moreover, as the next section describes, developments regarding 
the scope and content of international criminal law have been equally im- 
portant. 



" In July 1994, the Security Council authorized the creation of a Commission of 
Experts to examine the evidence. The Commission 's December 1994 report concluded that 
Hutu forces had conmiitted genocide against the Tutsi minority. S.C. Res. 918 (1994); S.C. 
Res. 935 (1994). The Secretaiy-General's report concluded that "[o]n the basis of the evi- 
dence that has emerged, there can be little doubt that [the Situation in Rwanda] constitutes 
genocide. . . ." Report of the Secretary-General on the Situation in Rwanda, U.N. Doc. S/ 
1994/640 (1994). 

" The Statute for the International Tribunal for Rwanda is contained in an Annex to 
SC Res. 955 (1994) (hereinafter "Statute for the Rwanda Tribunal"). 

" See infra text accompanying notes 65-71, 127-28 (discussing Geneva Conven- 
tions and Protocols). 

'^ See. e.g.. Cedric Thomberiy, Saving the War Crimes Tribunal, 104 Foreign Policy 
72 (1996). 

" The Yugoslavia Tribunal recently reported, in a significant Understatement, that 
the Federal Republic of Yugoslavia and Republika Srpska "have failed fully to cooperate by 
arresting and surrendering to the Tribunal persons indicted of war crimes, crimes against 
humanity and genocide." Third Report of the Yugoslavia Tribunal, supra note 47, at 8. 
See, e.g., Crawford, supra note 5, at 405-06. 



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C. The Progress of International Criminal Law 

The international criminal court will not command respect or legitimacy 
if the conduct it seeks to prosecute and punish is not imiversally considered 
criminal, or if the ICC is viewed as legislating or creating law rather than 
applying existing law. The subject matter Jurisdiction of the proposed ICC 
therefore is appropriately limited to clearly established crimes under cus- 
tomary international law that are, as the Preamble to the draft Statute states, 
"the most serious crimes of concem to the international Community as a 
whole."^^ 

The core of the proposed ICC 's Jurisdiction is over certain crimes under 
"general international law,"^* also referred to as customary international law. 
Customary international law is considered binding law and results from a 
general and consistent practice adhered to by states from a sense of legal 
obligation.^^ It is based on consistent State practice and opinio juris. Ratifi- 
cation of multilateral treaties, independent of the rights and obligations es- 
tablished among the parties, also constitutes evidence of customary interna- 
tional law. A treaty also may have the effect of codifying or developing 
customary international law,^^ and muhilateral treaties have significantly af- 
fected the development of intemational crimes under customary international 
law. 

The customary intemational law that the ICC will apply is generally 
"defined by existing treaties.'*^^ These treaties include the Genocide Con- 
vention, "Geneva law," "Hague law," and the Nuremberg Charter. 

The 1948 Genocide Convention," without dispute a part of customary 
intemational law, forms a central component of the court's subject matter 
Jurisdiction. The Genocide Convention, which entered into force in January 
195 1, has been ratified by 122 countries, including by the United States on 
Febmary 23, 1989.^^ Article IV of the Convention provides that persons 



*^ Draft Statute, supra note 7, Preamble. 

** International Law Commission Commentary, supra note 7, art. 20. 

** Restatement (Third) of the Foreign Relations Law of the United States § 
102(2)(1987). See also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-17 
(9th Cir. 1992) (discussing nature of customary intemational law and concluding that *the 
right to be free from official torture is fundamental and universal, a right deserving of the 
highe st Status under intemational law"). 

^* See id. § 102, Comment f ("Multilateral agreements open to all states, however, 
are increasingly used for . . . codifying and developing customary law"). 

** International Law Conmiission Commentary, supra note 7, Part 3. 

^ Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 
1948, 78 U.N.T.S. 227. 

« See 18 U.S.C. § 1091. 



committing acts of genocide "shall be punished, whether they are constitu- 
tionally responsible rulers, public officials or private individuals." 

The Intemational Court of Justice underscored the universality of the 
Genocide Convention by holding, in the Bosnia v. Yugoslavia case, that "the 
rights and obligations enshrined by the Convention are rights and obliga- 
tions erga omnes . . . [T]he Obligation each State thus has to prevent and to 
punish the crime of genocide is not territorially limited[.]**^ "Geneva law'' con- 
sists of the four Geneva Conventions^^ and Protocols^ established under the 
aegis of the Intemational Committee of the Red Gross (ICRC) dealing primarily 
with the protection of victims. The Geneva Conventions have been ratified 
by 1 85 countries, including by the United States in 1956. Article 3 common 
to all four Conventions establishes minimum mies to be observed in internal 
armed conflicts,^^ and "binds parties to internal conflicts regardless of whether 
they are recognized nations or roving hordes of insurgents."^* Each Geneva 



^ Case concerning Application ofthe Convention on the Prevention and Punish- 
ment ofthe Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), 1996 l.C.J. H 31 (11 
July) (Judgment) (unofficial text released by ICJ Registry). 

^^ Geneva Convention for the Amelioration of the Condition of the Wounded and 
Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 ("Geneva 
Convention 1'*); Geneva Convention for the Amelioration of the Condition of Wounded, 
Sick and Shipwrecked Members ofthe Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 
75 U.N.T.S. 85 ("Geneva Convention 11"); Geneva Convention Relative to the Treatment of 
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 ("Geneva Convention III"); 
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 
1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 ("Geneva Convention IV"). 

^^ Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to 
the Protection of Victims of Intemational Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 
("Protocol I"); Protocol Additional to the Geneva Convention of 12 August 1949, and Relat- 
ing to the Protection of Victims of Non-Intemational Armed Conflicts, Dec. 12, 1977, 1125 
U.N.T.S. 609 ("Protocol 11"). Protocol I has been ratified by 143 countries, and Protocol II 
has been ratified by 134 countries. The United States signed both Protocols, but has ratified 
neither. See generally Theodor Meron, The Time Has Come For The United States To Ratijy 
Geneva Protocol /, 88 Am. J. Int'l L. 678 (1994). 

*' Article III common to all four Geneva Conventions states that: "the following acts 
are and shall remain prohibited at any time and in any place whatsoever with respect to the 
above-mentioned persons: (a) violence to life and person, in particular murder of all kmds, 
mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal 
dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and 
the carrying out of executions without previous judgment pronounced by a regularly consti- 
tuted court, affording all the judicial guarantees which are recognized as indispensable by 
civilized peoples." Conventions I, II, III & IV, supra note 65, art. 3 (hereinafter "common 
Article III"). 

" Kadic V. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995), reh'g denied, 74 F.3d 377 (2d 

Cir.), cert. denied, 116 S.Ct. 2524 (1996). 



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Convention, as well as Protocol I, identifies particular acts described as "grave 
breaches,"**^ and requires State parties to enact legislation establishing crimi- 
nal penalties for "grave breaches.'*^^ The United States, as a party to the 
Geneva Conventions, recently carried out its Obligation to criminalize grave 
breaches of the Conventions by passing the War Crimes Act of 1996.^^ 
"Hague law" is based on the 1907 Hague Convention"^^ dealing princi- 
pally with the laws of war. Forty-three countries have ratified the Hague 
Convention, including the United States in 1909. The concept of "war crimes" 
initially derived from Hague law but more recently is regarded as somewhat 
coterminous with Geneva law. The ICJ's Nuclear Weapons advisory opin- 
ion summarized the consolidation of Hague law and Geneva law: 



A large number of customary rules have been developed by the 
practice of States and are an integral part of . . . international 
law[.] [The] "Hague Law" and, more particularly, the Regula- 
tions Respecting the Laws and Customs of War on Land, fixed 
the rights and duties of belligerents in their conduct of opera- 
tions[.] One should add to this the "Geneva Law" (the Conven- 
tions of 1864, 1906, 1929 and 1949), which protects the vic- 
tims of war and aims to provide safeguards for disabled armed 
forces personnel and persons not taking part in the hostilities. 
These Wo branches ofthe law applicable in armed conflict have 
become so closely interrelated that they are considered to have 
gradually formed one Single complex System, known today as 
international humanitarian law. 



* * * 



It is undoubtedly because a great many rules of humanitarian 
law applicable in armed conflict are so fundamental to the re- 
spect ofthe human person and "elementary considerations of 
humanity" . . . that the Hague and Geneva Conventions have 



^' For example, Geneva Convention I states that "Grave breaches to which [state 
parties are obligated to enact penal sanctions for] . . . shall be those involving any of the 
following acts, if committed against persons or property protected by the Convention: wilful 
killing, torture or inhuman treatment, including biological experiments, wilfully causing great 
suffering or serious injury to body or health, and extensive destruction and appropriation of 
property, not justified by military necessity and carried out unlawfiilly and wantonly." Geneva 
Convention I, supra note 65, art. 50. See also Geneva Convention II, supra note 65, art. 5 1; 
Geneva Convention III, supra note 65, art. 130; Geneva Convention IV, supra note 65, art. 
147; Protocol I, supra note 66, art. 85(3), (4). 

'^ Geneva Convention I, supra note 65, art. 49; Geneva Convention II, supra note 
65, art. 50; Geneva Convention III, supra note 65, art. 129; Geneva Convention IV, supra 
note 65, art. 146; Protocol I, supra note 66, arts. 85, 86. 

T^ War Crimes Act of 1996, Pub. L. 104-192, 1 10 Stat. 2104 (Aug. 21, 1996). 

^ Hague Convention (IV) Respecting the Uws and Customs of War on Land, with 
Annex of Regulations, Oct. 18, 1907, 36 Stat. 2277, T.S. 539. 



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93 



enjoyed abroad accession. Further these fundamental rules are 
to be observed by all States whether or not they have ratified 
the Conventions that contain them, because they constitute 
intransgressible principles on international customary law.^ 

The Genocide Convention, Geneva law, Hague law and the Nuremberg 
Charter are collectively described in the Secretary-Generars Report on the 
Statute for the International Tribunal for Yugoslavia as *'beyond any doubt 
part of customary [international] law so that the problem of adherence of 
some but not all States to specific Conventions does not arise."^^ Further- 
more, the application of these universally applicable Standards as a bench- 
mark of individual criminal liability was established fifty years ago in the 
Nuremberg Judgment: 

That international law imposes duties and liabilities upon indi- 
viduals as well as upon States has long been recognized. . . 
.[IJndividuals can be punished for violations of international 
law. Crimes against international law are committed by men, 
not by abstract entities, and only by punishing individuals who 
commit such crimes can the provisions of international law be 
enforced.^^ 

State practice also confirms individual criminal responsibility for viola- 
tions of international criminal law. The United States Court of Appeals for 
the Second Circuit, for example, recently held that "certain forms of conduct 
violate the law of nations whether undertaken by those acting under the aus- 
pices ofa State or only as private individuals.'*^^ In addition, many nations, 
in military manuals or in legislation, have criminalized and prosecuted in 
national courts serious breaches ofthe rules and principles of international 
humanitarian law."^^ 



n 



74 
7$ 



Legality ofthe Threat or Use of Nuclear Weapons, 1996 I.C.J. Ulj 75, 79 (July 8) 
(unofficial icxi released by ICJ Registry) (emphasis added). 

Secretary-Generars Yugoslavia Tribunal Report, supra note 4, ^ 35. 

International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1 , 
1946, reprinted in 41 Am. J. Int'l L. 172, 220-21 (1947). 

'* Kadic, 70 F.3d at 243 (recognizing "the settled proposition that federal common 
law incorporates international law" and that acts of genocide, war crimes and torture by indi- 
viduals are violations of international law). 

'' See, e.g., United States v. Calley, 22 C.M.A. 534 (U.S.C. M.A. 1973) (affirming 
conviction of United States soldier for summaiy executions of unresisting persons); see also 
Prosecutor V. Tadi , supra note 43, IH 130-33; Theodor Meron, International Criminalization 
of Internal Atro eitles, 89 Am. J. Int'l L. 554, 586-67 (1995). Many countries, moreover, 
including the United States, France and the United Kingdom, have enacted legislation re- 
garding Cooperation with various aspects ofthe International Tribunals for Yugoslavia and 
Rwanda. Russia, among other states, has formally stated that no legislation is necessary to 
ensure füll compliance. Third Report ofthe Yugoslavia Tribunal, supra note 42, tl 181-85. 
See also Amnesty International, International Criminal Tribunals: Handbook for Govern- 
ment Cooperation, AI Index: lOR 40/07/96 (Aug. 1996). 



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International criminal law, as customary intemationaJ law, is applicable 
to individuals. No pemanent international institution, however, provides an 
enforcement mechanism; therefore, when nations are unable or unwilling to 
prosecute under their criminal or müitary codes, impunity for even the most 
blatant and egregious offenders results. TTie ICC fills this institutional lacuna. 

III. THE ILC's 1994 DRAFT STATUTE 

This section describes the basic structure of the proposed ICC as set 
forth in the International Law Commission's 1994 draft Statute, which has 
provided the framework for negotiations within the Ad Hoc Committee and 
the more recent Preparatory Committee. 

Virtually every section of the draft Statute underwent significant scru- 
tmyatthe 1996 Preparatory Committee sessions. Governmental delegations 
proposed alternative versions of many articles as well as the deletion of cer- 
tein articles.'« The various competing proposals will be subject to ftmher 
debate and revision before the final treaty text is drafted at the diplomatic 
Conference, scheduled for late 1998. As a starting point, though, an under- 
standing of the draft statute's structure and procedures is essential. 

A. Structure of the Proposed ICC 

The draft Statute describes an ICC with four principal organs- (1) a Presi- 
dency; (2) Trial Chamber(s) and an Appeals Chamber; (3) a Procuracy; and 
(4) a Registry." 

The Presidency, consisting of a President and first and second Vice Presi- 
dents, IS elected from among the judges of the ICC by a majority of judges 
The eighteen judges of the ICC are elected to Single nine-year terms by a 
majonty vote of State parties. No two judges shall be from the same State 

"" ^^tr'^^f f ^'*^*^ '•'''"''' "represent[] the principal legal Systems of the 
World.; Judges of the ICC should be "persons of high moral character 
impartiality and integrity who possess the qualifications required in thei^ 
respective countries for appointment to the highest judicial Offices.'"" In 



78 



See Preparatory Committee Report, supra note 30, | 13 (listing sixty written pro- 
posals submitted by UN member states during the Preparatory cLmitL's August 1996 
Session); Preparatory Committee Compilation of Proposals, supra note 32 

Draft Statute, supra note 7, art. 5. France has proposed additional organs« a "Pre 

hmmaiy Investigations Chamber"; a "Remand Chamber"; a "General AssembTof JudgL- 

and a General Assembly of States Parties/' Dray?5r./«../.. .„ 7,,,,,^^^^^^^^ 

Worhng Paper Submitted By France. U.N. Doc. A/AC.249/L.3 (1996) (hereinafter "^^^^^^^ 
ing Paper Submitted By France"). ^ inereinaner Work- 

Draft Statute, supra note 7, art. 6. 
Draft Statute, supra note 7, art. 6(1). 



PROPOSED INTERNATIONAL COURT 



95 



addition, judges must have both "criminal trial experience" and "recognized 
competence in international law.'* 

The judges, according to the draft Statute, **shall be independent.''^^ ^y 
activity which might "interfere with their judicial ftinctions*' or "affect con- 
fidence in their independence'' is prohibited. Judges of the ICC are prohib- 
ited ft^om holding any legislative, executive or prosecutorial positions in a 
national govemment.^ 

The Presidency performs a number of pre- and post-trial procedural and 
administrative fimctions. Among these fimctions is the appointment of the 
Appeals Chamber fi-om among the judges of the ICC for renewable three- 
year terms.*^ The Appeals Chamber consists of the President and six other 
judges. The Presidency also has the responsibility of nominating five judges 
to be members of the Trial Chamber for a given case.^^ 

The Procuracy, headed by the Prosecutor and assisted by Deputy Pros- 
ecutors, is an independent organ responsible for the investigation of com- 
plaints and the conduct of prosecutions. The Prosecutor and Deputy Pros- 
ecutors, who hold Office for renewable five-year terms, are nominated by 
State parties and elected by a majority of the State parties.^^ They must be 
"persons of high moral character and have high competence and experience 
in the prosecution of criminal cases.*'^^ 

The Registrar and Deputy Registrar, elected by a majority of the judges, 
are the principal administrative officers of the ICC.^^ The draft Statute delin- 
eates a number of fimctions for the Registrar relating primarily to its role as 
a depositary of notifications and as a Channel for Communications with states. 

B. Pre-Trial Procedures 

An investigation by the Procuracy is initiated either (1) by a State party 
"lodg[ing] a complaint with the Prosecutor alleging that a crime appears to 
have been committed*'^^ or (2) by the "referral ofa matter to the Court by the 
Security Council acting under Chapter VII of the Charter of the United Na- 
tions."^° The draft Statute does not permit the Prosecutor to sua sponte ini- 
tiate a complaint or investigation. 



t2 
O 
•4 
IS 
U 
•7 
M 
•» 

n 



Draft 
Draft 
Draft 
Draft 
Draft 
Draft 
Draft 
Draft 
Draft 



Statute, 
Statute, 
Statute, 
Statute, 
Statute, 
Statute, 
Statute, 
Statute, 
Statute, 



supra note 
supra note 
supra note 
supra note 
supra note 
supra note 
supra note 
supra note 
supra note 



7, art. 10(1). 
7, art. 10(2). 
7, art. 9(1). 
7, art. 9(5). 
7, art. 12(3). 
7, art. 12(3). 
7, art. 13. 
7, art. 25. 
7, art. 23(1). 



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lipon receipt of a complaint from a State or a referral by the Security 
Council, the Prosecutor may commence an investigation unless the Prosecu- 
tor, on an initial review of the complaint and supporting documentation, "con- 
cludes that there is no possible basis for a prosecution."^^ The Prosecutor's 
investigation may involve on-site questioning of witnesses or suspects, col- 
lecting evidence, and seeking the Cooperation of states. The Prosecutor then 
must determine whether aprima facie case exists, defined in the ILC*s com- 
mentary to the draft Statute as "a credible case which would (if not contra- 
dicted by the defense) be a sufficient basis to convict the accused of the 
Charge.*'^ 

The Prosecutor's investigation should also determine whether the case 
is "inadmissible" because the crime in question: (1) has been investigated by 
a State with Jurisdiction and made a well-founded decision not to proceed; 
(2) is under investigation by a State that may have Jurisdiction; or (3) is not of 
such gravity to justify further action by the Court.^^ Issues of admissibility 
also may be raised before the commencement of the trial by an accused or by 
an "interested State." After the commencement of the trial, admissibility 
issues may be raised only on the Court's own motion. 

Ifa prima facie case exists, and the case is admissible, the Prosecutor 
prepares an indictment stating concisely the facts alleged and the crimes al- 
leged to have been committed. The Prosecutor also must inform the Presi- 
dency if it determines that there are insufficient grounds to file an indict- 
ment.^"* A decision not to proceed may be reviewed by the Presidency, at the 
request of the complainant State or the Security Council, after which the Presi- 
dency "may request the Prosecutor to reconsider the decision.'*^^ Ultimate 
discretion on whether to file an indictment remains with the Prosecutor. 

The indictment is filed with the Registrar and thereafter submitted to the 
Presidency. The Presidency is required to "examine the indictment and any 
supporting material" to determine whether a prima facie case indeed exists 
regarding a crime within the Court's Jurisdiction. If the Presidency deter- 
mines aprima facie case exists, and also that the case is admissible pursuant 
to the criteria in Article 35, the Presidency is required to "confirm the indict- 
ment."^ 

The Presidency must at the confirmation stage also assess, like the Pros- 
ecutor, whether the case is "admissible."^^ Assuming a case is admissible. 



91 
92 
93 
94 
95 
H 
91 



Draft Statute, supra note 7, art. 26(1). 

International Law Commission Commentaiy, supra note 7, art. 34. 

Draft Statute, supra note 7, art. 35. 

Draft Statute, supra note 7, art. 26(4). 

Draft Statute, supra note 7, 26(5). 

Draft Statute, supra note 7, art. 27(2). 

Draft Statute, supra note 7, art. 27(2). 



PROPOSED INTERNATIONAL COURT 



97 



n 



the ICC also is required to satisfy itself, even in the absence of a challenge, 
that it has Jurisdiction.^« The accused and "any interested State'' are permit- 
ted to challenge the Jurisdiction of the ICC in the Trial Chamber after confir- 
mation of the indictment.^ A defendant also is permitted to challenge Juris- 
diction "at any stage of the trial. ''*°° 

Whether the ICC may exercise Jurisdiction over aperson depends on the 
crime alleged and whether certain states have accepted the Jurisdiction of the 
ICC over the crime alleged. The jurisdictional State consent requirements 
are examined in greater detail infra Part V. A. 

After the commencement of the Prosecutor' s investigation, the Presi- 
dency may at the Prosecutor's request issue a Warrant for the "provisional 
arresf of a suspect if there are sufficient grounds and if the suspect "may not 
be available to stand trial unless provisionally arrested."'^^ A suspect provi- 
sionally arrested must be released if the indictment is not confirmed within 
90 days of the provisional arrest, although the 90-day period may be ex- 
tended by the Presidency. 

C, Trial 

Following confirmation of the indictment, the Presidency convenes a 
Trial Chamber of five judges. The Presidency also may issue Orders relating 
to the language(s) to be used at trial, the arrest and transfer of the accused, 
the exchange of information between the Prosecutor and the defense, and 
Provision for the protection of the accused, victims, witnesses, and of confi- 
dential information. ^^^ The draft Statute also provides that the rules of proce- 
dure and evidence should be drawn up by the judges of the ICC within six 
months of the judicial elections and then submitted to a Conference of State 
parties for approval.^^^ 

The Trial Chamber has a ränge of powers necessary for conducting the 
trial, including the power to require the attendance and testimony of wit- 
nesses and the producrion of evidence. In addition, the Trial Chamber is 
charged with ensuring "ftill respect for the rights of the accused and due 
regard for the protection of victims and witnesses."^^ The rights of the ac- 



98 



99 



100 



Draft Statute, supra note 7, art. 24. 

Draft Statute, supra note 7, art. 34. 

Draft Statute, supra note 7, art. 34(b). At all hearings relating to admissibility and 
Jurisdiction, "the accused and the complainant State have the right to be heard." Id., art. 
36(1). 

^^^ Draft Statute, supra note 7, art. 28(l)(b). 
Draft Statute, supra note 7, arts. 26-28. 

'"^ Draft Statute, supra note 7, art. 19. Significant support exists, however, for estab- 
lishing the rules of procedure and evidence in conjunction with the diplomatic Conference. 

*^^ Draft Statute, supra note 7, art. 38(2). Article 43 authorizes the Court to take 
"necessary measures" to protect defendants, victims and witnesses, including conducting 
"closed proceedings" or presenting evidence by "electronic or other special means.'* 



^a 



am 



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Vol. 52, No. 1 



cused, which include the presumption of innocence,^°^ reflect the fundamen- 
tal rights set forth in Article 14 of the International Covenant on Civil and 
Political Rights.^^^ At least three of five Trial Chamber judges must concur 
in any conviction, acquittal, or sentencing. Upon conviction, the Trial Cham- 
ber may order a fine or imprisonment, but not the death penalty.^°^ 

The draft Statute states that "the accused should be present during the 
trial."^°^ The Trial Chamber is authorized, however, to conduct trials in ab- 
sentia for reasons **of security or the ill-health of the accused," if the accused 
continuously disrupts the trial, has escaped, or has broken bail.^°^ If **a trial 
cannot be held because of the deliberate absence of an accused," the Trial 
Chamber may create an Indictment Chamber to record the evidence and con- 
sider whether such evidence constitutes a prima facie case. If a prima facie 
case is established, the Indictment Chamber then issues an arrest Warrant. ^^° 
Finally, "the record of evidence before the Indictment Chamber shall be ad- 
missible."^^^ 

D. Appeal 

Both the Prosecutor and convicted persons have a right of appeal fol- 
lowing a judgment of the Trial Chamber. Grounds for appeal include proce- 
dural error, error of fact or law, or disproportion between the crime and sen- 
tence.^^^ The Appeals Chamber, if it fmds that the proceedings below were 
"unfair" or the decision was "vitiated by error of fact or law,"^^^ may reverse 
or amend the Trial Chamber* s decision, or order a new trial. On the 
Prosecutor's appeal following an acquittal, the Appeals Chamber may order 
a new trial. The Chamber may also amend a sentence if it finds the sentence 



^^^ Draft Statute, supra note 7, art. 40. 

^^^ Draft Statute and International Law Commission Commentary, supra note 7, art. 
41. See infra Part VI for further discussion of protection of the rights of defendants. 

^*^' Draft Statute, supra note 7, arts. 45-47, 53. Article 47 stipulates which State 's 
laws the Trial Chamber is to have reference to in determining penalties. 

1°" Draft Statute, supra note 7, art. 37(1). 

^^^ Draft Statute, supra note 7, art. 37(2). 

"^ Draft Statute, supra note 7, Art. 37(4). The Indictment Chamber is modeled on 
the rule 61 hearings provided for in the Rules of Procedure and Evidence of the Yugoslavia 
Tribunal. In June-July 1996, a Trial Chamber of the Yugoslavia Tribunal held rule 61 pro- 
ceedings on the indictments against Karad i and Mladi . The proceedings resulted in interna- 
tional arrest Warrants for Karad i and Mladi , and "certification" that the failure to apprehend 
Karad i and Mladi was due to the refusal of the Federal Republic of Yugoslavia and the 
Republika Srpska to cooperate with the Tribunal. Third Report of the Yugoslavia Tribunal, 
supra note 47, 161. 

^" Draft Statute, supra note 7, art. 37(5)(a). 

"2 Draft Statute, supra note 7, art. 48(1). 

"3 Draft Statute, supra note 7, art. 49(2). 



PROPOSED INTERNATIONAL COURT 



99 



(1 



"manifestly disproportionate to the crime."^*^ A trial or appeal may also be 
reconvened if, upon motion by a convicted person or the Prosecutor, newly 
discovered evidence appears which "could have been a decisive factor in the 
conviction."*^^ 

The Court's judgments are be legally binding on all parties to the Stat- 
ute. Persons convicted serve sentences of imprisonment under the ICC's 
supervision in a State designated by the ICC from a list of willing states, or if 
no State is so designated, in the host State of the ICC. Subject to certain 
procedures and conditions, convicts would be eligible for pardon, parole, 
and commutation of sentences. ^^^ 

E. Cooperation with States and Judicial Assistance 

The draft Statute requires State parties to "cooperate with the Court in 
connection with criminal investigations and proceedings.*'^^^ Cooperation 
may take the form of locating persons, taking testimony, producing evidence 
or serving papers.^^^ Requests to states to cooperate or provide judicial assis- 
tance are transmitted by the Registrar. The Court also may request a State to 
take provisional measures, such as preventing an accused from leaving its 
territory or provisionally arresting a suspect. 

Provisions relating to the transfer of an accused to the Court are set forth 
in Article 53 . In this regard the draft statute's distinction between genocide, 
as the crime that invokes the Court's "inherent Jurisdiction," and other crimes, 
is relevant. In the case of genocide, all State parties are required to "take 
immediate Steps to arrest and transfer the accused to the Court" upon receipt 
of arequest from the Registrar.^^^ In cases other then genocide, an Obligation 
to transfer only adheres if the State party has accepted the Jurisdiction of the 
Court with respect to the crime in question.^^^ A State party which has not 
accepted the Court's Jurisdiction with respect to the crime in question that 
receives arequest has three options: (1) "in accordance with its legal proce- 
dures, take Steps to arrest and transfer the accused to the Court"; (2) "extra- 
dite the accused to a requesting State"; or (3) "refer the case to its competent 
authorities for the purpose of prosecution."^^^ 



114 
115 
lU 
117 
118 
119 
120 
121 



Draft Statute, supra note 7, arts. 49(3). 

Draft Statute, supra note 7, art. 50(1). 

Draft Statute, supra note 7, arts. 58-60. 

Draft Statute, supra note 7, art. 51(1). 

Draft Statute and International Uw Commission Commentary, supra note 7, art. 51 

Draft Statute, supra note 7, art. 51(2)(a)(i). 
Draft Statute, supra note 7, art. 5 1 (2)(a)(ii). 
Draft Statute, supra note 7, art. 53(2)(c). 



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IV. CRIMES WITHIN THE SUBJECT 
MATTER JURISDICTION OF THE ICC 

The ICC's subject matter Jurisdiction, as set forth in the draft Statute, 
encompasses: (1) genocide; (2) aggression; (3) serious violations of the law 
and customs applicable in armed conflict (or war crimes); (4) crimes against 
humanity; and (5) certain crimes established pursuant to multilateral trea- 
ties.^" This section examines the subject matter Jurisdiction of the proposed 



^^ Draft Statute, supra note 7, art. 20. The Annex to the draft Statute lists the treaties 
which would be a part of the ICC's subject matter Jurisdiction. The treaties listed in the 
Annex are: 

1 . Grave breaches of: 

(i) the Geneva Convention for the Amelioration of the Condition of the 

Wounded and Sick in Armed Forces in the Field of 12 August 1949, as defmed by Article 50 
of that Convention; 

(ii) the Geneva Convention for the Amelioration of the Condition of 

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, as 
defmed by Article 51 ofthat Convention; 

(iii) the Geneva Convention relative to the Treatment of Prisoners of War of 

12 August 1949, as deflned by Article 130 ofthat Convention; 

(iv) the Geneva Convention relative to the Protection of Civilian Persons in 

Time of War of 12 August 1949, as defined by Article 147 ofthat Convention; 

(v) Protocol I Additional to the Geneva Conventions of 12 August 1949 

and relating to the Protection of Victims of Intemational Armed Conflicts of 8 June 1977, as 
defmed by Article 85 ofthat Protocol. 

2. The unlawftil seizure of aircraft as defined by Article 1 ofthat Hague Convention 
for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970. 

3. The crimes defined by Article 1 of the Montreal Convention for the Suppression 
of Unlawftil Acts against the Safety of Civil Aviation of 23 September 1971. 

4. Apartheid and related crimes as defined by Article II of the Intemational Conven- 
tion on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973. 

5. The crimes defined by Article 2 of the Convention on the Prevention and Punish- 
ment of Crimes against Intemationally Protected Persons, including Diplomatie Agents of 14 
December 1973. 

6. Hostage-taking and related crimes as defined by Article 1 of the International 
Convention against the Taking of Hostages of 17 December 1979. 

7. The crime of torture made punishable pursuant to Article 4 of the Convention 
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 De- 
cember 1984. 

8. The crimes defined by Article 3 of the Convention for the Suppression of Unlawful 
Acts against the Safety of Maritime Navigation of 10 March 1988 and by Article 2 of the 
Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located 
on the Continental Shelf of 10 March 1988. 

9. Crimes involving illicit traffic in narcotic dmgs and psycho tropic substances as 
envisagedby Article 3 (1) of the United Nations Convention against Illicit Traffic in Narcotic 
Drugs and Psychotropic Substances of 20 December 1988 which, having regard to Article 2 
of the Convention, are crimes with an intemational dimension. 



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ICC, and concludes that the ICC's initial Jurisdiction should be limited to the 
"core crimes" — genocide, war crimes and crimes against humanity. ^^3 

Genocide 

The ICC without question will have Jurisdiction over the crime of geno- 
cide. There has been further consensus that Articles II and III of the widely 
ratified Convention on the Prevention and Punishment of the Crime of Geno- 
cide of 1948 *^^ provide an authoritative definition of the crime of genocide. 
The Statute for the Intemational Tribunal for Yugoslavia incorporates the 
Genocide Convention's definition as well.^^ Finally genocide is clearly pun- 
ishable by the ICC as the Genocide Convention, in Article VI, provides for 
trial "by such intemational penal tribunal as may have jurisdiction."^^^ 



*** The draft Statute fails to enumerate the specific elements of these crimes, or de- 
fenses, although the Statutes for the Intemational Tribunals for Rwanda and Yugoslovia do 
list specific proscribed conduct. There was universal agreement at the Preparatoiy Commit- 
tee, though, that "all general elements of crimes and the basic principles of liability and 
defence should be elaborated by States and laid down in the Statute itself, or in an annex 
thereto which would have the same legal value as the Statute." Preparatory Committee Re- 
port, supra note 30, \ 180. Article 39 of the draft Statute expresses this principle in terms of 
the maxim nullum crimen sine lege, or "no crime without law." 

Articles II and III of the Genocide Convention provide: 



124 



Ar tkk U 

In the present Convention, genocide means any of the following acts committed with 
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 

(a) Killing members of the group; 

(b) Causing serious bodily or mental härm to members of the group; 

(c) Deliberately infticting on the group conditions of life calculated to bring about its 
physical destruction in whole or in part; 

(d) Imposing measures intended to prevent births within the group; 

(e) Forcibly transferring children of the group to another group. 

Article III 
The following acts shall be punishable: 

(a) Genocide; 

(b) Conspiracy to commit genocide; 

(c) Direct and public incitement to commit genocide; 

(d) Attempt to commit genocide; 

(e) Complicity in genocide. 

See Genocide Convention, supra note 62, arts. II, III. 

*^ Statute for the Yugoslavia Tribunal, supra note 4, art. 4. 

*^ Genocide Convention, supra note 62, art. VI. 



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B. Serious Violations of the Laws and Customs Applicable in Armed 
Conflict 

War crimes, referred to in the draft Statute as "serious violations of the 
laws and customs applicable in armed conflict," are also appropriately within 
the ICC's subject matter Jurisdiction. The ILC Commentary notes that the 
category of war crimes "overiaps but is not identical to the category of grave 
breaches of the 1949 Geneva Conventions and Additional Protocol I of 
j 977 »127 jjjg gj.^^g breaches provisions of the Geneva Conventions clearly 
envision individual criminal responsibility in that State parties are required 
to enact legislation "necessary to provide effective penal sanctions for per- 
sons committing, or ordering to be committed, any of the grave breaches"*^* 
of the Conventions. An additional source is the 1907 Hague Convention 
(IV) Respecting the Laws and Customs of War, which provides the basis for 
the war crimes definitions found in the Nuremberg Charter, and "has be- 
come part of the body of international customary law."^^^ 

A principal definitional issue with respect to war crimes is whether this 
category applies to intemal, as opposed to international, armed conflicts. 
Some States argued in the Preparatory Committee that violations of the laws 
and customs of war committed in purely intemal conflicts should be ex- 
cluded fi-om the ICC's Jurisdiction. Other states argued that violations com- 
mitted in intemal armed conflicts should be included because, among other 
reasons, national courts are less likely to address such offenses.^^® 

Our Position is that customary intemational law provides for individual 
criminal responsibility for war crimes committed in purely intemal conflicts. 
The Statute for the Rwanda Tribunal and the Draft Code of Crimes^^^ both 
apply the laws of war to purely internal conflicts. In addition, the Appeals 
Chamber for the Intemational Tribunal for Yugoslaviain the Tadic decision 
found that "customary intemational law imposes criminal liability for seri- 
ous violations of common Article 3 [of the 1949 Geneva Conventions], as 
supplemented by other general principles and mies on the protection of vic- 
tims of intemal armed conflict, and for breaching certain fundamental prin- 
ciples and mies regarding means and methods of combat in civil strife."^^^ 



"^ International Law Commission Commentary, supra note 7, art. 20. 

^^ Geneva Convention I, supra note 65, art. 49; Geneva Convention II, supra note 
65, art. 50; Geneva Convention III, supra note 65, art. 129; Geneva Convention IV, supra 
note 65, art. 146. See also Protocol 1, supra note 66, art. 80. 

^2' Secretary-General's Yugoslavia Tribunal Report, supra note 4, ^^ 41-42. 

*^" Preparatoiy Committee Report, supra note 30, ^78. 

"* Draft Code of Crimes, supra note 14, art. 20(f). 

"^ Prosecutor V. Tadic, supra note 48, 1| 134. 



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103 



The State Department and by the Defense Department also advocate 
applymg war cnmes prohibitions to intemal armed conflicts, as shown in 
letters submitted to Congress during deliberations on the War Crimes Act of 
1996: 

[T]he Phrase *Var crimes" should be defined to include not onlv 
grave breaches of the 1949 Geneva Conventions and their pro^ 
tocols, but also violations of the mies applicable in non-inter- 
national armed conflict, e.g., civil wars and other intemal con- 
flicts, that are specified in common Article 3 of the Geneva 
Conventions.*^' 

[W]e believe that the [war crimes] provision should also cover violations of 
the mies of non-intemational amied conflicts, e.g., civil wars, rebellions 
that are specified in common Article 3 of the Geneva Conventions. '^' 

C. Crimes Against Humanity 

Crimes against humanity, it is generally accepted, also should be in- 
cluded within the ICC's subject matter Jurisdiction. The Nuremberg Charter 
defined crimes against humanity broadly to include "murder, extermination, 
enslavement, deportation, and other inhumane acts committed against any 
civilian population . . . or persecutions onpohtical, racial, or religious grounds 
m execution of or in connection with any crime within the Jurisdiction of the 
Tribunal[.]" The phrase "committed against any civilian population'* in the 
Nuremberg Charter has been interpreted to require that the acts must be "wide- 
spread or systematic" to constitute crimes against humanity. As the Intema- 
tional Law Commission stated: 

the definition of crimes against humanity encompasses inhu- 
mane acts of a very serious character involving widespread or 
systematic violations aimed at the civilian population in whole 
or in part. The halhnarks of such crimes lie in their large-scale 
and systematic nature . . .[The acts must be] committed as part 
of a widespread and systematic attack against a civihan popu- 
lation on national, pohtical, ethnic, racial or religious grounds.*'^ 



133 



Letter from Baibara Larkin, Acting Assistant Secretaiy, Legislative Affairs to Hon. 
Lamar SmiÜi, Chairman, Subcommittee on Immigration and Claims, Committee on the Judi- 
ciaiy, House of Representatives, dated May 17, 1996, in H.R. Rep. No. 104-698, 104tli Cong., 
2nd Sess. (1996), reprinted in. 1996 U.S.C.C.A.N. 2166, 2179 (hereinafter "House Report on 
War Crimes Act of 1996"). 

Letter from Judith Miller, General Counsel of the Department of Defense, to Hon. 
Bill McCollum, Chairman, Subcommittee on Crime, House Committee, dated May 22, 1996, 
ia House Report on War Crimes Act of 1996, supra note 133, at 2178. 

Intemational Law Commission Commentary, 5tt/>ra note 7, 1 14. The Draft Code 
Ol Crimes similarly provides that a crime against humanity involves acts "committed in a 
systematic manner or on a large scale." Draft Code of Crimes, supra note 14, art. 18. 



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A principal controversy regarding crimes against humanity is whether 
crimes against humanity must be committed in connection with an armed 
conflict, as was required in the Nuremberg Charter. The Statute for the In- 
ternational Tribunal for Yugoslavia likewise requires that such acts be "com- 
mitted in an armed conflict."*^*' 

In OUT view, the armed conflict requirement should not be included in 
the defmition of crimes against humanity. As was argued in the Preparatory 
Committee, "the armed conflict nexus that appeared in the Nuremberg Tri- 
bunal Charter was no longer required under existing law.'**^^ The Interna- 
tional Tribunal for Rwanda's Statute, in contrast, does not require an "armed 
conflict** requirement. ^^^ 

The Appeals Chamber of the International Tribunal for Yugoslavia con- 
vincingly addressed this issue in a preliminary ruling in the Tadi case and 
rejected an armed conflict nexus for crimes against humanity. The Tribunal 
held that "[i]t is by now a settled rule of customary international law that 
crimes against humanity do not require a connection to international armed 
conflict. Indeed, as the Prosecutor points out, customary international law 
may not require a connection between crimes against humanity and any con- 
flict at all. "^^' 

D. Aggression 

Aggression, as one of the most serious crimes of concem to the interna- 
tional Community, is included in the draft Statute to create a deterrent and 
avoid impunity for individuals responsible for committing aggression.^^^ 
Aggression also was a focus of the Nuremberg Tribunal, and therefore, it is 
argued, omitting aggression from the ICC *s Jurisdiction might be considered 
"retrogressive.**^^^ 

Nevertheless, many delegations argued in the Preparatory Committee 
against including aggression for several reasons. First, aggression has not 
yet been the subject ofa multilateral treaty, which would appear to conflict 
with the International Law Commission's view that the ICC's Jurisdiction 
should be "defined by existing treaties."^^^ Second, no commonly accepted 



>^ Statute for the Yugoslavia Tribunal, supra note 4, art. 5. 
^ Preparatory Committee Report, supra note 30, f 89. 
^ Statute for the Rwanda Tribunal, supra note 51, art. 3. 
^ Prosecutor V. Tadic, supra note 48, ^ 141. 

The Draft Code of Crimes includes the "crime of aggression" as a crime against 
the peace and security of mankind. Draft Code of Crimes, supra note 14, art. 16. 

International Law Commission Commentary, supra note 7, art. 20; Preparatory 
Committee Report, supra note 30, ^ 66. 

International Uw Commission Commentaiy, supra note 7, art. 20. 



W: 



defmition of aggression exists, and it is far from clear that additional effort 
will yield results. Most definitions of aggression, such as General Assembly 
Resolution 33 14,^^^ refer to aggression by states and do not contemplate in- 
dividual criminal responsibility. This point is buttressed by the fact that 
since Nuremberg there has not been significant national prosecutions of in- 
dividuals for the crime of aggression, while there has been prosecutions by 
States for the core crimes. 

Third, because the Security Council has primary responsibility for the 
maintenance of international peace and security under the UN Charter, the 
Security Council is required to make a determination "that a State has com- 
mitted the act of aggression which is the subject of the complaint.*'^^ The 
necessity of Security Council involvement, however, is problematic. The 
independence and integrity of the ICC may be compromised if prosecutions 
for aggression are dependent on a factual finding by a political institution 
such as the Security Council. ^^^ For these reasons, therefore, we conclude 
that aggression should not be within the ICC*s initial subject matter 
Jurisdiction. 

E. Treaty-Based Crimes 

In addition to the crimes referred to by the ILC as "crimes under general 
international law," the draft Statute includes fourteen "treaty-based crimes,'* 
listed supra note 122, which relate to terrorism, drug trafficking, apartheid 
and hostage-taking. The ILC's criteria for inclusion of aparticular treaty are 

(1) the crime must be "defined by the treaty" with sufficient precision; and 

(2) the treaty must either "create[] a System of universal Jurisdiction" or per- 
mit trial of the crime by an international criminal court.^"*^ 

Six of the fourteen treaties are "specifically concemed with terrorist of- 
fences of one kind or another,"*"*^ and much of the debate over inclusion of 
the treaty crimes has focused on terrorism. Among the arguments advanced 
during the Preparatory Committee for the inclusion of terrorism within the 
ICC 's Jurisdiction were that: (1) terrorism is one of the most serious crimes 
of concem to the international Community; (2) recent Security Council prac- 
tice demonstrates the serious threat to international peace and security from 



^^^ G.A. Res. 3314 PCXDC) (Dec. 14, 1974). See also Report of the Special Commit- 
tee on the Question of Defining Aggression, 24 August-21 September 1953, U.N. GAOR, 9th 
Sess., Supp. No. 1 1, U.N. Doc. A/2638 (1954). 

**^ Draft Statute, supra note 7, art. 23(2). 

^^^ See ICJ Position Paper, supra note 37, at 14; Uwyers Committee for Human Rights, 
Establishing an International Criminal Court: Major Unresolved Issues in the Draft Statute 
11 (Mar. 1996). 

*^ International Law Commission Commentaiy, supra note 7, art. 20. 

**' International Law Commission Commentaiy, supra note 7, art. 20. 



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PROPOSED INTERNATIONAL COURT 



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terrorism; (3) the ICC should be permitted to accept exceptionally serious 
cases of terrorism when referred by the Security Council; and (4) interna- 
tional terrorism cases are precisely the types of matters in which national 
tribunals may be unavailable or ineffective.^^* 

The arguments raised in the Preparatory Committee against including 
the treaty crimes, however, have gamered significant support. No generally 
accepted defmition of terrorism exists, and reaching agreement on a defini- 
tion may delay the creation of the ICC. Terrorism is investigated and pros- 
ecuted by national authorities. As the ILC notes with respect to the treaty- 
based crimes in general, "many ofthose treaties could cover conduct which, 
though serious in itself, was within the competence of national courts to deal 
with and . . . did not require elevation to the level of an international jurisdic- 
tion."^^^ 

Concems also arose at the Preparatory Committee meetings that broad- 
ening the ICC *s Jurisdiction to include the treaty crimes would overburden 
the ICC 's limited resources while detracting from the prosecution of other 
core crimes, or perhaps trivialize the ICC's role and ftinctions.^^^ Finally, the 
treaty crimes **could lessen the resolve of States to conduct national investi- 
gations and prosecutions and politicize the fimctions of the Court.'*^^^ We 
therefore conclude that the treaty-based crimes should be excluded for the 
time being from the ICC's subject matter Jurisdiction. 

F. Conclusions 

The ICC*s subject matter Jurisdiction, at least initially, should encom- 
pass only the three "core crimes" — genocide, serious violations of the laws 
and customs applicable in armed conflict, and crimes against humanity. A 
number of factors compel this conclusion. Most important is the fact that the 
three core crimes are the only crimes which a considerable majority of coun- 
tries clearly consider to be part of customary international law. 

In addition, under the guiding principle of complementarity, as set forth 
in the Preamble to the draft Statute, the ICC should only prosecute cases 
"where such trial procedures may not be available or may be ineffective."^" 
A narrower subject matter Jurisdiction of the core international crimes there- 



14« 
149 

150 



Preparatoiy Committee Report, supra note 30, t 106. 

International Law Commission Commentary, supra note 7, art. 20. 

Preparatory Committee Report, supra note 30, ^ 1 16. The United States opposes 
the inclusion of terrorism and dmg trafficking within the ICC s Jurisdiction. Statement of 
The Honorable Conrad K. Harper, Legal Adviser, U.S. Dep't of State, USUN Press Rel. No. 
149-(94), at 2 (Oct. 25, 1994) (hereinafter "Statement of Conrad K. Harpef*)- 

Preparatory Committee Report, supra note 30, \ 107. 

Draft Statute, supra note 7, Preamble. 



ist 

1S2 



fore may enhance complementarity by minimizing the potential for overlap 
or direct conflict between the ICC and national courts. Narrowing the Juris- 
diction of the ICC may also facilitate broader acceptance, as well as simplify 
the fimctioning of the court.^^^ Furthermore, the Clements of these crimes, 
including defenses, must be enumerated in the Statute itself so that the con- 
duct proscribed is precisely defined. 

Nevertheless, the crime of terrorism clearly is of significant concem to 
the international Community and therefore, in principle, may be appropriate 
for the ICC*s subject matter Jurisdiction. Thus, given that the development 
of customary international law is a fluid process, a review mechanism should 
be included that would allow the initial subject matter Jurisdiction of the ICC 
to be expanded at a later time.^^"* 

V. THE EXERCISE OF JURISDICTION BY THE ICC 

A. State Consent Requirements and "Inherent Jurisdiction'' 

An investigation of a crime within the ICC's Jurisdiction may be initi- 
ated either by a State party or by the Security Council. Using the terminol- 
ogy of the draft Statute, the Security Council "refer[s] . . . a matter,"'" while 
"a complaint is broughf ^^ by a State. When proceedings are initiated by 
State complaint, the ICC*s assumption of Jurisdiction over an accused is de- 
pendent on numerous State consent requirements (the consent requirements 
are dispensed with when the Security Council, acting under Chapter VII of 
the Charter, refers a matter to the court'^^. Consent is given, under the draft 
statute's "opt-in" approach, when astate that has ratified ICC Statute lodges 
declarations specifying the crimes over which the State accepts the Jurisdic- 
tion of the ICC.'^* (The exception is genocide, where the Court has "inherent 
Jurisdiction," as described below.) Such declarations may be general, or may 
contain temporal limitations, or may be limited to a Single incident or crisis.'^^ 



^" Preparatory Committee Report, supra note 30, at ^ 107. See also International 
Law Commission Commentary, supra note 7, art. 20 (noting that inclusion of three core 
crimes was influenced by Statute of International Tribunal for Yugoslavia). 

^^^ Preparatory Committee Report, supra note 30, H 115 (noting differing views on 
establishing a review procedure). 

^" Draft Statute, supra note 7, art. 23(1). 

*" Draft Statute, supra note 7, art. 21(l)(a). The state complaint should "specify the 
circumstances of the alleged crime and the identity and whereabouts of any suspect, and be 
accompanied by such supporting documentation as is available[.l" Id., art. 25(3). 

^" International Law Commission Commentary, supra note 7, art. 23 ("referral" pro- 
cess '*allows the Security Council to initiate recourse to the Court by dispensing with the 
requirement of the acceptance by a State of the Court's Jurisdiction")- 

*" Draft Statute, supra note 7, art. 22(1). 

^" Draft Statute, supra note 7, art. 22(2), (3). 



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The consent requirements affect: (1) the initiation of investigations; (2) 
the ICC*s exercise of Jurisdiction, and (3) the procedures for transferring 
accused persons to the Court. First, a State cannot bring a complaint alleging 
that aparticular crime, other than genocide, has been committed unless that 
State has lodged a declaration accepting the ICC's Jurisdiction over such 
crime. ^^° With respect to genocide, a declaration is not required as long as 
the State is a party to the Genocide Convention. *^^ 

Second, in order for the ICC to exercise Jurisdiction over a suspect, the 
Jurisdiction of the ICC over the crime alleged must be accepted by: (1) the 
State with custody over the accused; and (2) the State in which the crime is 
alleged to have occurred.^" When the complaint alleges genocide there are 
no State consent requirements because the Genocide Convention provides 
for trial by an "international penal tribunal,*'*^^ which is interpreted to allow 
for the exercise of the ICC's "inherent Jurisdiction.'* 

Third, the transference of persons to the Court, pursuant to a request 
from the Registrar to a State, may also involve consent requirements. For 
example, if a State with custody of an accused receives an extradition request 
pursuant to an extradition treaty from another State, the acceptance of the 
Court's Jurisdiction by the State with a right of extradition is required. ^^ In 
other cases the duty to transfer an accused depends on the crime and whether 
the State has accepted the Jurisdiction of the Court over the crime. In the case 
of genocide and crimes which a State has lodged a declaration accepting 
Jurisdiction, a State party receiving a request "shall . . . take immediate Steps 
to arrest and transfer the accused to the Court.'*^^^ States that are not parties 
to the ICC Statute may cooperate with the ICC upon receipt of a request to 
arrest and transfer an accused to the ICC, although a binding Obligation is 
notimposed.^^^ 

B. Trigger Mechanism and the Role of the Security Council 

1. How Should an Investigation Be Triggered? 

The right to trigger an investigation is limited to the Security Council 
and to State parties to the ICC Statute. The Preparatory Committee consid- 
ered proposals to authorize the Prosecutor or individuals, in addition to states 
and the Security Council, to trigger investigations. Proposals to permit in- 



161 

1» 
1(3 
1(4 
1(5 
1(( 



Draft Statute, supra note 7, art. 25(2). 
Draft Statute, supra note 7, art. 25(1). 
Draft Statute, supra note 7, art. 21(l)(b). 
Genocide Convention, supra note 62, art. 4. 
Draft Statute, supra note 7, art. 21(2). 
Draft Statute, supra note 7, art. 53(2). 
Draft Statute, supra note 7, arts. 53(1), 56. 



PROPOSED INTERNATIONAL COURT 



109 



vestigations to be triggered by the Prosecutor and/or by individuals found 
Support among some countries and nongovemmental organizations who ar- 
gued that the purposes and ideals of the ICC cannot be realized unless the 
Prosecutor and individuals are permitted to initiate proceedings. States and 
the Security Council, it is argued, will in many cases be unwilling to file 
complaints for political or other reasons. 

Other delegations argued against an independent power of the Prosecu- 
tor to institute proceedings on the grounds that such authorization could po- 
liticize the ICC, undermine its credibility and strain the resources of the ICC, 
not least because a Prosecutor' s decision to investigate without a complaint 
or referral presumably would require an additional layer of review. 

2. The Role ofthe Security Council 

A key issue regarding the triggering ofthe ICC*s Jurisdiction involves 
the role ofthe Security Council. Article 23(3) ofthe draft Statute provides: 
No prosecution may be commenced under this Statute arising from a Situa- 
tion which is being dealt with by the Security Council as a threat to or breach 
ofthe peace or an act of aggression under Chapter VII ofthe Charter, unless 
the Security Council decides otherwise. 

Article 23(3), strongly favored by the United States, is, as the Interna- 
tional Law Commission Commentary explains, "an acknowledgment ofthe 
priority given by Article 1 2 ofthe Charter[^^^] . . . as well as for the need for 
coordination between the [International Criminal] Court and the Council in 
such cases." The ICC must operate in conformity with the UN Charter, which 
permits the Security Council to make measured judgments regarding the pano- 
ply of appropriate responses to a breach of the peace or act of aggression. 
Prosecutions under international criminal law should promote, not hinder, 
peace. Thus, it is argued, "the primary U.N. body empowered to handle 
issues of international peace and security must not be handcuffed by the 
prosecutor investigating a particular suspect."^^^ 

Other delegations and many commentators, however, argue that Article 
23(3) is a threat to the independence ofthe ICC. Despite the ILC 's State- 
ment that Article 23(3) "does not give the Council a mere 'negative veto' 



167 



The UN Charter affords the Security Council primary authority "relative to the 
maintenance of international peace and security." U.N. Charter, art. 12. Chapter VII ofthe 
Charter provides that the Security Council shall "decide what measures shall be taken . . . to 
maintain or restore international peace and security." U.N. Charter, art. 39. 

^" United States Delegation to Preparatory Committee on ICC, ITrigger Mechanism, " 
Second Question. The Role ofthe Security Council and of Complaints by States, Articles 23 
and 25 (Apr. 1996). See also David Scheffer, International Judicial Intervention, 102 For- 
eign PoLiCY 32, 50 (1996). 



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over the commencement of prosecutions,"^^^ the Security Council retains the 
Option of exercising its Chapter VII powers and blocking any prosecution. 
As aresult, Article 23(3) is fimdamentally incompatible with an independent 
ICC. The Security Council, as an overtly political body, should not have the 
ability to prevent the exercise of the ICC*s Jurisdiction over a particular Situ- 
ation. The Problem is compounded by the vagueness of the phrase "being 
dealt with by the Security Council," which could be interpreted to simply 
mean the placement of an item on the Security CounciPs agenda.^^^ 

An alternative proposal seeks to resolve the ambiguity of the phrase 
"being dealt with'' by restricting the circumstances in which an ICC pros- 
ecution may be blocked while accomodating the role of the Security Coun- 
cil. These proposals seek to narrow the Security Council's ability to prevent 
the initiation of prosecutions by, for example, requiring the Security Council 
to make a formal decision to request the court not to proceed, or by permit- 
ting a delay in prosecution by the ICC in "a Situation in respect of which 
Chapter VII action is actually being taken" by the Security Council. *^^ 

C. Conclusions 

The draft Statute 's State consent requirements are intended to maximize 
State participation and Cooperation with the ICC. This is, of course, a com- 
pelling purpose, especially because the the Yugoslavia and Rwanda Tribu- 
nals clearly have suffered from a lack of State Cooperation. A State which 
ratifies the ICC treaty, however, and follows through with its Obligation to 
pass implementing legislation,^^ should not be required to take fiirther steps 
to indicate acceptance of the ICC's limited Jurisdiction. The Statute should 
provide that State parties to the ICC Statute automatically accept the Court's 
inherent Jurisdiction over the core crimes.^^^ 

Moreover, as some members of the ILC have argued, "the strict require- 
ments of acceptance contained in Article 21 [are] likely to frustrate its Opera- 
tion in many cases, and even to make the quest for international criminal 
Jurisdiction nugatory."^^^ As others have noted, "[t]hese obviously compli- 



**• International Law Commentaiy, supra note 7, Art. 23. 

>^ Preparatoiy Committee Report, supra note 30, \ 142. See also Lawyers Commit- 
tee for Human Rights, supra note 145 at 10 (arguing that Article 23(3) unnecessarily permits 
a pohtical body, the Security Council, to control the ICCs ability to act. 

"* Preparatory Committee Report, supra note 30, f 143. Preparatoiy Committee Re- 
port Compilation of Proposals, supra note 32, art 23; Working Paper submitted by France 
supra note 79, art 38(3). ^ 

1^2 The ICC Statute will likely have a provision similar to that found in Security Council 
resolution 827, which stipulated that all states "shall take any measures n-^ssaiy under their 
domestic law to implement the — visions" of the Statute. S.C. Res. 827 ^...ay 25 1993) 

1^'^ Preparatoiy Commiti.. Report Compilation of Proposals, supra note 32, art 33. 
International Law Commission Commentaiy, supra note 7, Part 3. 



! 






cated consent requirements could lead to absurd situations."^^^ For example 
a State with custody of a person accused of committing war crimes in another 
State would be prevented from transferring the person to the ICC without the 
consent of the State on whose territory the crime was committed We con- 
clude, therefore, that the draft statute's State consent requirements would 
weaken the ICCs effectiveness, and should be simplified or eliminated. 

A preferable Option would be to allow any State party to lodge a com- 
plaint regarding any of the core crimes within the ICC*s Jurisdiction. Under 
this approach, states would be considered to have consented to the Jurisdic- 
tion of the ICC over all of the core crimes by signing and ratifying the ICC 
Statute. The exercise of "inherent Jurisdiction" over the core crimes is ap- 
propriate because these crimes are clearly established under customary in- 
ternational law. The distinction between genocide and the other core crimes 
for the purposes of determining the ICCs Jurisdiction is unnecessary. 

We believe that the effectiveness of the ICC will be greatly enhanced if 
the Prosecutor, in addition to State parties and the Security Council, is per- 
mitted to initiate proceedings in the absence of a State complaint or Security 
Council referral, with appropriate judicial review. One proposal for such 
review requires that complaints initiated by the Prosecutor be reviewed in 
Camera by an "indictment Chamber'' composed of judges who would not 
ultimately try the case. The procedure by the indictment Chamber "upon a 
hearing, would decide whether the matter should be pursued by the Prosecu- 
tor or the case should be dropped."^^^ 

Whether complaints are initiated by the Prosecutor or by states, how- 
ever, the gatekeeper function of the Security Council under Article 23(3) 
remains problematic. Whether or not the Security Council' s role is charac- 
terized as a "veto" should not obscure the potential of Article 23(3) to sig- 
nificantly diminish the Court's independence. Of course, the Security 
Council' s role as a peacemaker and peace enforcer under the UN Charter 
should be recognized and encouraged. The danger of abuse exists, though, if 
Article 23(3) is used to prevent the ICC from pursuing prosecutions for 
overtly political reasons. 

It is also doubtfiil whether adequate compromise language could be for- 
mulated to reduce the discretion of the Security Council. No matter how 
Article 23(3) is phrased, if prosecutions are perceived as requiring the im- 
pnmatur of the Security Council, then many countries appropriately will 
question the legitimacy and effectiveness of the ICC. Article 23(3) in its 
present form, therefore, should be eliminated in order to ensure the indepen- 
dence and integrity of the ICC. 



175 
176 



Lawyers Committee for Human Rights, supra note 145, at 16. 
Preparatory Committee Report, supra note 30, ^ 150. 



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Finally, concems that the Court would exercise unfettered discretion to 
initiate prosecutions, in the absence of the State consent requirements or Se- 
curity Council oversight, are vastly overstated. The draft Statute contains a 
number of procedura! safegxiards. For example, the Prosecutor and the Presi- 
dency are required to determine whether a prima facie case exists and whether 
the case is "admissible" under Article 35, that is, whether national authori- 
ties may prosecute or whether the case "is not of such gravity to justify fiir- 
ther action by the Court."^^^ An accused or any "interested State" also is 
authorized to mount challenges to the Jurisdiction of the Court after the con- 
firmation of the indictment.*^* And any "interested State," or the Court it- 
self, is authorized to make a motion regarding Rule 35 admissibility. Fi- 
nally, even in the absence of a challenge, each organ of the Court has a re- 
sponsibility to satisfy itself that Jurisdiction is appropriately exercised in a 



given case. 



179 



VI. PROTECTION OF THE RIGHTS OF DEFENDANTS 

The draft Statute, and all proceedings before the ICC, must be in accor- 
dance with the highest international Standards of faimess and due process. 
In general, the draft Statute, which was expressly modeled on Article 14 of 
the International Covenant on Civil and Political Rights,^^° describes a work- 
able level of protection of the rights of accused persons. The draft Statute, 
however, should also make clear that the listing of certain rights under exist- 
ing customary law is not intended to exclude others, thus leaving room for 



177 
178 
179 



180 



Draft Statute, supra note 7, arts. 27, 35. 

Draft Statute, supra note 7, art. 34. 

Draft Statute and International Law Commentary, supra note 7, ait. 24. 

Article 41 of the draft Statute "reflects as closely as possible the fundamental rights 
of the accused set foith in article 14 of the ICCPR." International Law Commission Com- 
mentary, supra note 7, art. 41. In addition, the draft Statute guarantees a suspect's right "to 
remain silent, without such silence being a consideration in the determination of guiU or 
innocence" and "to have the assistance of counsel of the suspect's choice or . . . to have legal 
assistance assigned by the Court." Draft Statute, supra note 7, art. 26(6)(a). 

Article 14 of the International Covenant on Civil Political Rights sets forth an array of 
rights of accused persons, defendants and convicted persons. These rights include the right 
to be informed promptly of the charges; the right to communicate with counsel of his or her 
choosing; the right to adequate time and facilities to prepare a defense; the right to be tried 
without undue delay; the right, in general, to be present at trial; the right to legal assistance, 
including the right to appointed counsel if the accused is unable to pay for counsel; the right 
to examine the witnesses against him or her; the right to obtain the attendance of defense 
witnesses; the right to translation of document and proceedings; the right not to be compelled 
to testify or confess guilt; the right to appeal; and the right to a pardon or reversal based on 
newly discovered facts showing a miscarriage of justice. International Covenant on Civil 
and Political Rights, Dec. 16, 1966, 999 UNTS 171, art. 14. 



the incorporation of additional rights that may be recognized in the fiiture.^*^ 
Specific areas of concem regarding the rights of the accused are addressed 
below. 

The draft Statute provides an Indictment Chamber "[i]n cases where a 
trial cannot be held because of the deliberate absence of an accused.''^*^ The 
Indictment Chamber procedures, modeled on Rule 61 of the Rules of Evi- 
dence and Procedure of the International Tribunal for Yugoslavia, allow the 
Prosecutor to publicly present the evidence that has been gathered against 
the accused, and to have that evidence recorded and preserved. According to 
the ILC, the Indictment Chamber is intended to "fulfill some of the purposes 
of a trial in absentia," by, inter alia, "mak[ing] the accused in a certain sense 
a fugitive from international justice while still giving the accused an oppor- 
tunity to defend against the charges if eventually brought before the court." 

As demonstrated in the rule 61 proceedings conducted by Yugoslavia 
Tribunal,^*^ the Indictment Chamber may well serve a vital function. Cause 
for concem exists, however, with respect to Provision that "the record of 
evidence before the Indictment Chamber shall be admissible"'^ at any sub- 
sequent trial of the accused. This provision may be inconsistent with the 
defendant's fundamental right to "examine, or have examined, the prosecu- 
tion witnesses" recognized in Article 41(a)(3) of the Statute. There is also 
the possibility that testimony of unnamed witnesses in the Indictment Cham- 
ber proceedings could be introduced at trial. ^^^ 

There is no reason why evidence introduced at an Indictment Chamber 
proceeding should be "admissible" merely because it was presented by the 
Chamber. As was noted in the Preparatory Committee, at the very least the 
"accused should be able to challenge the admissibility of the evidence re- 
corded in his or her absence."^^ Thus, the Indictment Chamber record should 
not be automatically admissible in a subsequent trial. 

The draft Statute states "as a general rule, the accused should be present 
during the trial."^*^ Exceptions from this general rule permit the Trial Cham- 
ber to Order trials in absentia (1) for reasons of security or ill health of the 



^" See generally Lawyers Committee for Human Rights, Faimess to Defendants at 
the International Criminal Court: Proposais to Strengthen the Draft Statute (Aug. 1996). 

"^ Draft Statute, supra note 7, art. 37(4). 

"^ Third Report of the Yugoslavia Tribunal, supra note 47, \\ 50-61. 

"^ Draft Statute, supra note 7, art. 37(5). 

^*' See Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against 
Accused, 90 Am. J. Int'l L. 235, 238 (1996) (arguing that ruling of Yugoslavia Tribunal trial 
Chamber allowing prosecutor to withhold from accused the identity of some witnesses harms 
prospect for permanent international criminal court). 

^^ Preparatoiy Committee Report, supra note 30, H 259. 

"' Draft Statute, supra note 7, ^ 37(1). 



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accused; (2) where the accused has escaped firom lawftil custody; or (3) 
where the accused is continuing to disnipt the trial. This ränge of circum- 
stances is vague and overbroad, however, and may permit trials in absentia 
in circumstances where the procedure may be unwarranted. For example, it 
is doubtfiil that considerations regarding "ill health" of a defendant or "secu- 
rity'* should merit a trial in absentia. In our view, the more general prohibi- 
tion of trials in absentia included in the Statute of the International Tribunal 
for Yugoslavia should be adopted.*** 

The draft Statute also authorizes the "provisional arrest** of a suspect 
before formal charges are brought, upon a finding that there is "probable 
cause** to believe that the suspect has committed a crime within the Jurisdic- 
tion of the ICC, and that the suspect "may not be available to stand trial** if 
not provisionally arrested. The provisions pertaining to provisional arrest, 
however, require fiirther clarification. For example, the draft Statute appears 
to permit an indefinite term of detention by allowing detention longer than 
ninety days "as the Presidency may allow.****^ In addition, it is not clear that 
provisionally arrested suspects have a right to prompt access to a lawyer or 
the capacity to challenge the detention. Suspects provisionally arrested should 
be expressly afforded all the procedural Protections and rights granted ar- 
rested persons. 

VII. THE UNITED STATES AND THE 
INTERNATIONAL CRBMINAL COURT 

A permanent international criminal court deserves the strong support of 
the United States govemment. An independent ICC is consistent with prior 
positions and policies of the United States executive, legislative and judicial 
branches and would fiirther long-established and bipartisan goals. This sec- 
tion, then, presents the proposed international criminal court in the context 
of United States policy and principles, and concludes that active promotion 
of an independent ICC should be a primary goal of the United States govem- 
ment. 

The prosecution of war criminals has long been a principal objective of 
American policy. The United States spearheaded the creation of the 



188 



The Statute for the International Tribunal for Yugoslavia makes no Provision for 
trials in absentia. The Secretaiy-General's Report statesthat "[tjhere is a widespread percep- 
tion that trials in absentia should not be provided for in the Statute as this would not be 
consistent with Article 14 of the International Covenant Civil and Political Rights, which 
provides that the accused shall be entitled to be tried in his presence." Secretary-Genenil*s 
Yugoslavia Tribunal Report, supra note 4, ^ 101. 

Draft Statute, supra note 7, art.28(2).. 



189 






Nuremberg, Tokyo, Yugoslavia and Rwanda tribunals.^^ In these forums the 
United States has consistently and forcefully argued in favor of individual 
criminal responsibihty for perpetrators of crimes under international law. As 
a senior State Department off icial testified recently before Congress, "those 
accused of war crimes, crimes against humanity and genocide must be brought 
to justice. They must be tried and, if found guilty, they must be held account- 
able."^^^ 

With respect to the ICC proposal, the United States position has evolved 
from indifference to qualified support. ^^^ This support finds expression in a 
high level of participation in the Preparatory Committee and, in 1995, the Ad 
Hoc Committee. ^^' The United States delegation has circulated detailed Po- 
sition papers, and has played an important role in defining the debate. The 
ILC's draft Statute, in fact, incorporates many suggestions made by the United 
States. ^^"^ President Clinton, moreover, expressed support for a permanent 
ICC in a Speech delivered in October 1995: 

By successfiilly prosecuting war criminals in the former Yugo- 
slavia and Rwanda, we can send a strong signal to those who 
would use the cover of war to commit terrible atrocities that 
they cannot escape the consequences of such actions. And a 
Signal will come across even more loudly and clearly if nations 
all around the world who value freedom and tolerance establish 
a permanent international court to prosecute, with the support 
of the United Nations Security Council, serious violations of 
humanitarian law. This, it seems to me, would be the ultimate 
tribute to the people who did such important work at Nuremberg, 
a permanent international court to prosecute such violations. 
And we are working today at the United Nations to see whether 
it canbedone.^^^ 



^^^ See also Scheffer, supra note 168, at 47-48 (describing American initiatives re- 
garding Iraq and Cambodia genocide prosecutions). 

^'^ Statement of Michael J. Matheson, Principal Deputy Legal Adviser, Department 
of State, before the House Committee on the Judiciary (June 12, 1996) (available on NEXIS 
Federal News Service file). 

^^^ See Scheffer, supra note 168, at 49 ("From the Clinton administration's earliest 
days, the govemment established a far more positive approach to the concept of an interna- 
tional criminal court than had the previous administration."). 

^*^ In addition, in the early 1950s, the United States representative chaired both ses- 
sions of the Committee on International Criminal Jurisdition. 1951 Draft Statute, supra note 
17, ^ 4; 1953 Revised Draft Statute, supra note 19, H 6. 

^** Statement of Conrad K. Haiper, supra note 150, at 2-3. 

^'5 31 Weekly Comp. Pres. Doc. 1840 (Oct. 15, 1995). See also Letter from Jamison 
S. Borek, Deputy Legal Adviser, United States Department of State to Barbara Paul Robinson, 
President of the Association of the Bar of the City of New York, dated April 15, 1996 (invok- 
ing President CUnton's remarks and stating that "(tjhe United States is pursuing a policy 
consistent with the views of the President"); Statement of Conrad K. Haiper, supra note 150, 
at 2 ("the most compelling case for a permanent couit is made with respect to war crimes, 
crimes against humanity and genocide"). 



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The United States recognizes the law to be applied by the ICC to be part 
of binding customary international law.^^^ The federal courts, moreover, 
have shown awareness of the content and scope of international humanitar- 
ian law.^^^ And as the United States govemment argued before the Interna- 
tional Tribunal for Yugoslavia: 

The relevant law and precedents for the offences in question 
here — genocide, war crimes and crimes against humanity — 
clearly contemplate international as well as national action 
against the individuals responsible. Proscription of these crimes 
has long since acquired the Status of customary international 
law, binding on all states, and such crimes have already been 
the subject of international prosecutions by the Nurembere and 
Tokyo Tribunals.^^« ^ 

The United States Congress also has demonstrated knowledge of the 
Utility and feasibility of an international criminal tribunal. Since 1993 Con- 
gress has consistently voted significant funding, as well as contributions of 
personnel and resources, in support of the establishment and Operations of 
the International Tribunals for Yugoslavia and Rwanda. The bipartisan sup- 
port for these contributions by the United States demonstrates that interna- 
tional criminal law enforcement is apriority of Congress,^^^ as well as of the 
Executive branch. 

Numerous Statutes also have expressly referred to the need for some 
type of international criminal court. In 1986, the Omnibus Diplomatie Se- 
curity and Antiterrorism Act requested the President to explore an interna- 
tional tribunal for prosecuting terrorists.^^^ The 1988 Anti-Drug Abuse Act 
called for an international criminal court with Jurisdiction over international 



IM 



See House Report on War Crimes Act of 1996, supra note 133, at 2177-80 (views 
of Department of State and Department of Defense on War Crimes Act of 1996) 

^ Kg.. Kadic, 70 F.3d at 242-43. 

'•• Amicus Curiae Brief of the United States of America in Prosecutor v Tadi (Case 
No. I'^-94-I.T) at 20 (25 July 1995) (quoted in ICJ Position Paper, supra note 37, at § 5A). 
Congressional support for international criminal tribunals is also shown through 
the recent enactment of legislation providing judicial assistance to the International Tribu- 
nals for Yugoslavia and Rwanda. TTiis law extends the provisions of U.S. law regarding the 
extradition of persons to a foreign countiy to "the surrender of persons, including United 
States Citizens" to the International Tribunals for Yugoslavia and Rwanda. National Defense 
Authonzation Act, Pub. L. No. 104-106, § 1342, 110 Stat. 486 (1996). 

^ Section 1201(d) of the Omnibus Diplomatie Security and Terrorism Act of 1986 
Pub. L. No. 99-399, 100 Stat. 896. entitled "Consideration of an International Tribunal" 
States that "[t]he President should also consider ... the possibility of eventually establishing 
an international tribunal for prosecuting terrorists." 



'4 



'i 



: 



drug trafficking and "international crimes."^^^ In 1991, Congress passed an 
appropriations bill expressing its sense that "the United States should ex- 
plore the need for the establishment of an International Criminal Court. ^'^^^ 



20» Section 4108 of the Anti-Drug Abuse Act of 1988 provided: 

(a) In General. — It is the sense of the Senate that the President should begin discussions 
with foreign governments to investigate the feasibility and advisability of establishing an 
international criminal court to expedite cases regarding the prosecution of persons accused of 
having engaged in international drug trafficking or having committed international crimes. 

(b) United States Citizens. — Such discussions shall not include any commitment that 
such court shall have Jurisdiction over the extradition of United States Citizens and shall 
assure that any international agreement shall recognize the rights and Privileges guaranteed 
to United States Citizens under the United States Constitution. 

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4267, § 4108 (1988). 
202 The Foreign Operations, Export Financing, and Related Programs Appropriations 
Act, 1991, Pub. L. No. 101-513, 104 Stat. 2067, § 599E(Nov. 5, 1990) provided as follows: 

(a) The Congress fmds that — 

(1) the international conmiunity has defmed as criminal conduct in various interna- 
tional Conventions, certain acts such as war crimes, crimes against humanity, torture, piracy 
and crimes on board commercial vessels, aircraft hijacking, and Sabotage of aircraft, crimes 
against diplomats and other intemationally protected persons, hostage-taking, and illicit drug 
cultivation and trafficking; 

(2) in spite of these international Conventions, the effective prosecution ofthose who 
coimnit criminal acts has been seriously obstructed in certain cases because of problems of 
extradition and differences between the legal and judicial Systems of individual nations; 

(3) the Jurisdiction of The Intemational Court of Justice extends only to cases involv- 
ing governments, and not to individual criminal cases; 

(4) the concept of an intemational criminal court has been under consideration in the 
United Nations and other intemational fora for many years, including proposals and reviews 
undertaken in 1990 by the United Nations General Assembly, the International Law Com- 
mission, and the Eighth United Nations Congress on the Prevention of Crime and the Treat- 
ment of Offenders; 

(5) the international military tribunals established in Nuremberg, Germany, and Tokyo, 
Japan, following World War II also establish a precedent for intemational criminal tribunals; 
and 

(6) there is a growing movement among nations of the world to formulate their eco- 
nomic, political and legal Systems on a multilateral basis. 

(b) It is the sense of Congress that — 

(1) the United States should explore the need for the establishment of an International 
Criminal Court on a universal or regional basis to assist the intemational community in deal- 
ing more effectively with criminal acts defined in intemational Conventions; and 

(2) the establishment of such a court or courts for the more effective prosecution of 
intemational criminals should not derogate from established Standards of due process, the 
rights of the accused to a fair trial and the sovereignty of individual nations. 

(c) The President shall report to the Congress by October 1, 1991, the results of 
bis efforts in regard to the establishment of an International Criminal Court to deal with 
criminal acts defined in intemational Conventions. 

(d) The Judicial Conference of the United States shall report to the Congress by 
October 1, 1991, on the feasibility of, and relationship to, the Federal judiciary of an Intema- 
tional Criminal Court. 



kh 



I 



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In January 1993 Senator Christopher Dodd introduced a Congressional 
Joint resolution stating that the United States should "make every effort to 
advance this [ICC] proposal at the United Nations/'^^^ The Senate Foreign 
Relations Committee held hearings on the Joint resolution and on the inter- 
national criminal court in May 1993. The Committee subsequently issued a 
report recommending the adoption of the Joint resolution placing the Con- 
gress on record in support of the concept of an ICC.^^ 

More recently, the President signed into law the War Crimes Act of 1996, 
designed to carry out the obligations of the United States under the 1949 
Geneva Conventions to provide criminal penalties for certain war crimes. 
The House Report stated that war crimes **[p]rosecutions can be handled by 
the nations involved or by an international tribunal'''^^^ 

In our view, moreover, the United States Constitution does not present a 
barrier to participation in the ICC.^°^ First, Congress has authority to ratify 
United States participation in the ICC under Art. I, See. 8 of the Constitution, 
which provides that "The Congress shall have Power . . . To defme and pun- 
ish . . . Offences against the Law of Nations." In Yamashita, the Supreme 



^^ Senate Report, supra note 1 1, § 2 (S.J. Res. 32). 

^^^ The Resolution provided that: "It is the sense of Congress that (1) the establish- 
ment of an international criminal court with Jurisdiction over crimes of an international char- 
acter would greatly strengthen the international mle of law; (2) such a court would thereby 
serve the interests of the United States and the world Community; and (3 the United States 
delegation should make every effort to advance this proposal at the United Nations." Senate 
Report, supra note 1 1, § 2 (S.J. Res. 32). 

The 1993 hearings also revealed Opposition to the proposed ICC. For example, 
Senator Helms, the present Chair of the Senate Foreign Relations Committee, described the 
ICC initiative as "an unwise and dangerous proposal" and stated that "I will resist, to the best 
of my ability, this notion of a permanent international criminal court." Senate Report, supra 
note 11, § 3. 

205 House Report on War Crimes Act of 1996, supra note 133, at 2173 (emphasis 
added). See also Statement of Mark S. Zaid, Esq., before the House Judiciary Committee 
Subcommittee on Immigration and Claims on H.R. 2587 (June 1 2, 1996) (available on NEXIS, 
Federal News Service file). 

^^ See Louis Henkin, Foreign Affairs and the United States Constitution 270 (2d ed. 
1 996) ("If the proposed International Criminal Court came into existence and the United 
States adhered to it, United States participation would not be constitutionally troublesome."); 
Paul D. Marquardt, Law Without Borders: The Constitutionality of an International Crimi- 
nal Court, 1 CoLUM. J. Transnat'l L. 73, 73 (1995) (arguing that "Constitutional objections 
[to the ICC] are simply poorly reasoned"). Butsee Report of the Judicial Conference of the 
United States on the Feasibility of and the Relationship to the Federal Judiciary of an Interna- 
tional Criminal Court (Sept. 1991), in Senate Report, supra note 1 1, § 3 (questioning "whether 
the United States could participate in an International Criminal Court, or permit its Citizens to 
be tried in such a court, that did not adhere to the füll ränge of Protections provided to defen- 
dants by the U.S. Constitution as inteipreted by U.S. Courts."). 



PROPOSED INTERNATIONAL COURT 



119 



Court relied on Art. I, See. 8 to uphold Congressional authority to determine 
"an appropriate tribunal for the trial and punishment of offenses against the 
law of war."2°^ The House Report for the War Crimes Act of 1996 cited 
Yamashita as authority for its unequivocal conclusion that "[t]he constitu- 
tional authority to enact federal criminal laws relating to the commission of 
war crimes is undoubtedly the same as the authority to create military com- 
missions to prosecute perpetrators of these crimes.*'^^* 

Second, the absence of certain constitutional Protections, such as aright 
to trial by Jury, does not render United States participation in the ICC uncon- 
stitutional. The ICC would not be a tribunal of the United States exercising 
"the judicial power of the United States**^^^ under Article 111.^^° The ICC 
would be an international tribunal, established by multilateral treaty, and 
there is no constitutional requirement that the füll panoply of constitutional 
Protections applicable to Article III tribunals must apply ipso facto to pro- 
ceedings before the ICC. Indeed, under the "rule of non-inquiry**, U.S. courts 
routinely approve extradition of persons to foreign countries without consid- 
eration of the adequacy or integrity of the judicial procedures in the request- 
ingstate.^^^ 

Finally, it is constitutionally permissible for the United States to waive 
the exercise of criminal Jurisdiction over adefendant in favor of the ICC. As 
the U.S. Supreme Court has stated, "a sovereign nation has exclusive Juris- 
diction to punish offenses within its borders, unless it expressly or impliedly 
consents to surrender its jurisdiction."^^^ 



's 

1 

'< 



2*^ In re Yamashita, 327 U.S. 1, 7 (1946). 

^^* House Report on War Crimes Act of 1996, supra note 133, at 2172. 

^' Article III, section 1 of the U.S. Constitution states that "The judicial Power of the 
United States, shall be vested in one supreme Court, and in such inferior Courts as the Con- 
gress may from time to time ordain and establish." 

^'' See Hirotav. MacArthur, 388 U.S. 197, 198 (1948) (denying habeas corpus v/nis 
brought by Japanese Citizens being held in custody by the Tokyo war crimes tribunal because 
"the tribunal sentencing these petitioners is not a tribunal of the United States."; Henkin, 
supra note 206, at 268 ("If an international criminal court sat outside the United States and 
imposed punishment outside the United States, it would not be exercising judicial power or 
other governmental authority of the United States."); National Defense Authorization Act, 
Pub. L. No. 104-106, § 1342(a)(4), 110 Stat. 486 (1996 (Yugoslavia and Rwanda tribunal 
implementing legislation stating that "[t]he Federal Rules of Evidence and the Federal Rules 
of Criminal Procedure do not apply to proceedings for the surrender of persons [to the Yugo- 
slavia or Rwandan Tribunals.]"). 

^" Kg., Ahmed v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) (in evaluating 
extraditee's habeas corpus challenge. district court should not consider the faimess of the 
foreign country's laws or the manner in which these laws are enforced). 

^^^ Wilson V. Girard, 354 U.S. 524 (1957) (per curiam). 



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VIII. CONCLUSION 

Significant progress has been made in the past several years toward the 
establishment of a permanent international criminal court. Nevertheless, the 
ultimate success of the ICC depends on whether the political will is present 
to resolve such divisive issues as the ICC's Jurisdiction and the role of the 
Security Council. Another looming roadblock that will test governmental 
resolve to create the ICC relates to the financing of the Court. The draft 
Statute does not State how the Court will be financed, but the basic choices 
are to ftmd the ICC through the regulär budget of the UN, or establish a 
separate assessment.^^^ These questions must await final resolution at the 
diplomatic Conference scheduled for late 1998. 

Once established, the effectiveness of the ICC will depend of the seri- 
ousness with which countries takes their duties under the Statute. The Inter- 
national Tribunal for Yugoslavia, despite its achievements, has experienced 
tremendous frustrations as states ignore promises of Cooperation while in- 
dicted war criminals remain free.^'"* For the ICC, it is apparent that the enor- 
mous efforts that have sustained the drive toward the establishment ofa per- 
manent Court must be maintained in order to guarantee that the ICC will be 
atruly effective institution. 

IX. SUMMARY OF RECOMMENDATIONS 

• The United States should work toward the prompt finalization and 
ratification of the ICC treaty. 

• The ICC's subject matter Jurisdiction initially should be limited to 
genocide, war crimes and crimes against humanity. 

• The draft Statute 's State consent requirements, which determine 
whether the ICC's Jurisdiction may be exercised, may unnecessarily inhibit 
the exercise of the Court's Jurisdiction and should be modified. 

• The Prosecutor should be permitted to initiate investigations, in ad- 
dition to State parties and the Security Council. 

• The Security Council ' s primary role in the maintenance of interna- 
tional peace and security should not include the power to block the initiation 
of cases within the ICC's Jurisdiction. 

• The Protections afforded accused persons and defendants under in- 
temationally recognized Standards of faimess and due process must be rec- 
ognized and enforced by the ICC. 



213 
214 



Preparatory Committee Report, supra note 30, H 32. 

See Stacy Sullivan, Bosnia's Most Wanted Mostly Accessible: War Crimes Sus- 
pects Maintain High-Profile in Croat-Run Town, but Police Pay No Mind, Washington Post, 
Nov. 27, 1996, at A21. 



% 



! 



The Committee on International Law 

Elizabeth F. Defeis, Chair* 
David Stoelting, Secretary** 



Jason S. Abrams* 
Peter H.F. Bekker* 
Eric E. Bergsten 
David M. Billings 
Christopher J. Borgen 
Laura Campbell 
Michael S. Egan 
Iran Feinberg* 
John L. Fiorilla 
Jane M. Freeberg 
David Gaukrodger 
Mario Gazzola 
Esther Gueft* 
John Gleason 
(Jennifer) Yulia Han 
Arthure. Hei ton 
Evan Niimura-Izsak 
Tracy Kaye 



Eric Kolodner 

Nina J. Lahoud 

Catherine Lyng 

Stephen Marks* 

Janis M. Meyer 
Azra Mehdi 

R. Maria Vicien-Milbum 

Ronald B. Mole 
Victor P.Muskin 
Eric R. Neisser* 

Krishna Patel 
Auriello C. Quinones 

Anika Rahman 

Jennifer E. Raiola 

Carol Ann Remer-Smith* 

Roberte. Reuland 

Steven R. Shapiro* 

Peter J. Spiro* 
Carolyn L. Willson J 



** Principal author of the Report; Chair, International Criminal Court Sub- 

Committee 

* Member, International Criminal Court Sub-Conmiittee 



t Did not participate in the Report 



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Vol. 52, No. 1 



The Committee on International Human Rights 

Jay Topkis, Chair 
Helen B. Kim, Secretary 



Eleanor A. Acer* 
Henry T. Berger 
Julia Ridgway Binger 
Thomas A. Brown II 
Kimberly Crichton* 
Frances Alice Gallagher 
Stephanie Grant 
Malvina Halberstam 
Michael K. Hertz 
Fräser L. Himter, Jr. 
Wendi S. Lazar 
Lance E. Lindblom 
Len Mitchell 
David E. Nachman 
Robert Polstein 
lan K. Sugarman 



Malcolm Bayliss 
Howard Venable 
Edward Brodsky 
Lung-chu Chen 
Martin S. Flaherty 
Pamela Goldberg 
R. Scott Greathead 
Michael L. Herman 
Mary Holland 
Edward Labaton* 
Robert Levy 
Juan E. Mendez 
Samuel Murumba 
Bertrand B. Pogrebin 
Joseph J. Saltarelli 
Takemi Ueno 



♦ Member, International Criminal Court Sub-Committee 

** Principal author of the Report; Chair, International Criminal Court 



Sub-Committee 

% Did not participate in the Report 



i? 



1296 



THE YALE LAW JOURNAL 



[Vol. 56 



The Nürnberg Case. By Robert H. Jackson. New York : Alfred A. Knopf, 
1947. Pp. 269. $3.00. 

This second book on the Nürnberg trials by the Chief of Counsel for the 
United States, like bis earlier one/ is primarily a collection of documents 
bearing on the proceeding. Some of the materials contained in the first — the 
text of the Four Power Agreement, the Charter of the International Tribunal, 
and Mr. Jackson's opening Statement — are here republished. In addition, this 
volume contains his Report to the President of June 7, 1945, bis argument to 
the court on the legal basis for treating Nazi organizations as criminal, his 
closing address, and excerpts from the cross-examination of defendants Her- 
mann Göring, Hjalmar Schacht, Albert Speer and Erhard Milch. 

The negotiations which culminated in the indictment of the top Nazi leaders 
and organizations as war criminals, and some of the highlights of the trial, are 
reviewed in an eighteen page preface. Reconciliation of the conflicting legal 
philosophies of the four signatory nations presented some interesting diffi- 
culties. Justice Jackson teils us, for example : 

". . . It was something of a shock to me to hear the Russian delega- 
tion object to our Anglo- American practice as not fair to a def endant. 
The point of the Observation was this : We indict merely by charging 
the crime in general terms and then we produce the evidence at the 
trial. Their method requires that the def endant be given, as part of the 
indictment, all evidence to be used against him — both documents and 
the Statements of witnesses. ... So, while we may think that Con- 
tinental procedure puts too much bürden of proof on the defendants, 
the Anglo-American method seems unfair to them because it does 
not inform a defendant of the whole evidence against him. When 
we produce it at the trial it may cause surprise and become known 
too late to be answered adequately. Our method, it is said, makes a 
criminal trial something of a game. This criticism i§ certainly not 
irrational.''^ 

The procedure adopted in the Charter of the Court was prescribed in rela- 
tively general terms. It required counsel for defendants, and laid down the 
conditions of a fair hearing. Rules of evidence were flexible, the Provision 
being that any testimony deemed to have probative value be heard. Of the 
judges' rulings in the course of trial the author observes: "It is notable that 
while there were differences of opinion among them at times, Solutions were 
found always sufficiently acceptable from the viewpoint of all Systems of law 
so that no member ever publicly dissented in a matter of procedure or evi- 
dence."^ 



/i 



1. The Gase Against the Nazi War Criminals (1946). 

2. The Nürnberg Gase, vi-vii. 

3. Id., vii. 



^. 



1947] 



REVIEWS 



1297 



The United States prosecuting staff carried the bürden of establishing the 
Charge in Count One of a Nazi conspiracy to seize power, establish a totali- 
tarian regime, prepare and wage a war of aggression. Witnesses were used 
sparingly, the case resting chiefly on about 4,000 captured documents, selected 
from over 100,000. At least one defendant indicated a willingness to give evi- 
dence against bis co-defendants in return for an agreement that in the event 
of conviction he would be shot rather than hanged, but the proposition was 
rejected. Justice Jackson's explanation affords an interesting contrast to the 
tolerated domestic practice of rewarding those who turn State's evidence and 
betray their accomplices : 

". . . My primary objection to using testimony of some defendants 
to convict others was that such testimony always would carry the 
odor of a bargain. It always would be suspect. . . /'^ 

All in all, these ''first international Criminal Assizes in history'^ consumed 
216 days of trial time. The prosecutors for the four powers called 33 wit- 
nesses in addition to the documentary, Photographie and motion picture ex- 
hibits. The defendants called 61 witnesses and used interrogatories answered 
by 143 more. Nineteen of the defendants took the stand. All save Schacht, 
von Papen and Pritsche were convicted. Four Nazi organizations— the 
Leadership Corps of the Nazi Party, the Schutsstaffeln or SS, the Sicher- 
heitsdienst or SD, and the Gestapo— were likewise adjudicated criminal in 
character. The Court declined, however, so to find with respect to the Stur- 
mabteiltmgen or SA, the Reichscabinet, the General Staff and the High Com- 
mand. The Soviet member of the Court dissented from the acquittal of the 
three individuals and the f ailure to find the General Stafif and High Command 

criminal. 

In bis final report to the President on October 7, 1946, Justice Jackson rec- 
ognized that '*We are too close to the trial to appraise its long-range efifects."^ 
The hope was that the Four Power Agreement and ensuing judicial proceed- 
ings had ". . . made explicit and unambiguous what was theretofore, as the 
Tribunal has declared, implicit in International Law, namely, that to prepare, 
incite, or wage a war of aggression, or to conspire with others to do so, is a 
crime against international society, and that to persecute, oppress, or do vio- 
lence to individuals or minorities on political, racial, or religious grounds in 
connection with such a war, or to exterminate, enslave or deport civilian popu- 
lations, is an international crime, and that for the commission of such crimes 
individuals are responsible."« Certainly the judgment of the Tribunal consti- 
tuted a precedent, with sanctions. 

There has been little criticism of the kinds of sanctions applied. Most of 
the convicted individuals were sentenced to hang, and the remainder received 



4. Id., ix. 

5. Id., xiv. 

6. Id., xiv-xv. 



1298 



THE YALE LAW JOURNAL 



[Vol. 56 



long fixed terms of imprisonment. Belief in the efficacy of either type of sen- 
tence to advance the ends of justice in the more familiär contexts of domestic 
administration of criminal law and f requency of resort to them has, of course, 
been declining in many countries including Great Britain and the United 
States during recent years. But neither of those forms of sanction had been 
completely eliminated f rom the municipal law of the f our participating powers 
— or, for that matter, from German law — as of the time in question. In this 
Situation it was probably inevitable that such sanctions should be applied J 

Debate since^ as well as bef ore^ the event has centered instead on the char- 
acter and significance of the precedent. To call the norms by which the de- 
fendants were held accountable law and to designate their conduct criminal in 
the technical sense has impressed some as a weakening departure from West- 
ern democratic principles of nulla poena sine lege and ex" post facto }^ Basi- 
cally, the question is whether the norms applied at Nürnberg were less crystal- 
lized or less widely understood ingredients of the mores of the international 
Community, or otherwise significantly different from "the developing morality 
of their age" from which Anglo- American judges have been accustomed to 
derive and apply principles of municipal law in adjudicating issues unresolved 
by legislation. A most thorough exploration of this question with specific 
reference to Nürnberg has been published by Professor Glueck.^^ Supporting 
in final analysis the legality of the proceedings held at Nürnberg, I find it 
persuasive. Count One of the indictment, dealing with conspiracy to wage an 
aggressive war, obviously presents some of the dosest questions. Its wisdom 
and the ultimate verdict of legal history will no doubt depend on the extent of 
achievement of other international ventures now and in the future. As these 
work for or against the development of international order under law they 
will reinforce or undermine the rationale on which the Nürnberg judgments 
rest. 

George H. DESSiONf 



7. Cf. discussion of punishment and correction in C. XI of Glueck, War Crim- 
iNALs, Their Prosecution and Punishment (1944). 

8. See Biddle, Report fo the President, 15 Dep't State Bull. 954 (1946) ; Fite, 
The Nürnberg Jtidgment: A Summary 16 id. 9 (1947) ; Glueck, The Nuernberg Trial 
and Aggressive War, 59 Harv. L. Rev. 396 (1946) ; Wyzanski, Nuremberg in Retrospect, 
178 Atl. Monthly 56 (Dec. 1946). 

9. The various points of view are analyzed in Glueck, op. cit. supra note 7. See 
also the imaginative treatment of the problem in Radin, The Day of Reckoning (1943). 
The original Soviet point of view was elaborated in Trainin, Hitlerite Responsibility 
Under Criminal Law (1944). 

10. See, e.g., the criticism by Senator Taft reported in N. Y. Times, Oct. 6, 1946, 
§ 1, p. 1, col. 4 and Wyzanski, Dangerons Precedent, 177 Atl. Monthly 60 (April, 1946). 
For an extended analysis of the meaning and policy of the nulla poena and ex post facto 
principles in our law see Hall, Principles of Criminal Law C. 2 (1947). 

11. Glueck, op. cit. supra note 7. 

t Lines Professor of Law, Yale School of Law. 



^v> 



[Reprinted from the Bulletin of the American Association of 
University Professors, Vol. 32, No. 1, Spring, 1946] 



THE NUERNBERG TRIAL 

By NICHOLAS DOMAN 

The unprecedented trial of major war criminals in Nuernberg 
is likely to usher in a new era in international law, and particularly 
international responsibility. It is the first time in history that po- 
litical, economic, and military leaders of a nation — of a great power 
at that — have been summoned before an international tribunal 
constituting a forum of public conscience. While the United Na- 
tions Organization is struggling to live up to theardentexpectations 
of the entire civilized world, four of the five largest powers of the 
World have created a smoothly functioning mechanism for the pun- 
ishment of European war criminals. 

Goering and his colleagues are accused of violating the Standards 
of behavior established by the conscience of mankind. Humanity, 
and not the four prosecutor nations, is carrying the charge against 
the Nazi regime. The governments of Poland, Czechoslovakia, 
Holland, Belgium, Norway, and other nations, have collected their 
own evidence against the German war criminals and appeared in 
Nuernberg with voluminous official reports, adding more data to 
the already staggering list of Nazi crimes. 

The Vatican, which strictly preserved its role of neutrality dur- 
ing the war, has established contact with the prosecution. Pope 
Pius XII has more than once received in private audience Justice 
Robert H.Jackson, the American chief prosecutor. An American 
Catholic priest, a high ranking adviser to Jackson, has been search- 
ing all over Europe for evidence to prove the criminality of Ger- 
many in the persecution of religion. A correspondent of the Swiss 
"Gazette de Lausanne,'* who was received in private audience by 
the Pope,quoted the following Statement made by Pope Pius: "Not 
only do we approve of the trial, but we desire that the guilty be 
punished as quickly as possible, and without exception.'* 

The judges and the chief prosecutors of the ''International Mili- 
tary Tribunal*' are not military persons — only the Soviet repre- 



V 



84 



AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS 



THE NUERNBERG TRIAL 



85 



sentatives, though they are civilians, wear glittering uniforms. 
They are called **assimilated** generals, endowed with a military 
Position for this occasion. There is only one military person among 
the defense lawyers — the attorney of Admiral Doenitz, a young 
German naval captain who is one of the few Germans permitted to 
wear a uniform and keep his rank and insignia. This permission 
was granted to him in connection with mine-sweeping Operations in 
waters adjacent to Germany, conducted by a nucleus of the Ger- 
man Navy. 

Selection of defense lawyers proved one of the most ticklish 
controversies of the trial. Originally the war criminals were to 
have the liberty of choosing allied counselors; the British sense of 
diplomacy, however, intervened. The British feared, and Ameri- 
can representatives agreed, that if the war criminals were given the 
opportunity to choose allied counselors, their selections would prob- 
ably be predominantly American and British lawyers. In order to 
obviate an eventual charge from Russia and France that the United 
States and Great Britain, by riding both sides of the fence, were not 
wholeheartedly behind the trial, the defendants were restricted in 
their choice to German lawyers. 

A supranational world law is being recognized and applied in 
Nuernberg; the prosecution carrying the torch with the tacit ap- 
proval of the judges, and with no apparent Opposition from the de- 
fense. Human solidarity and basic concept of law are stronger fac- 
tors in international relations than Statute books containing posi- 
tive agreements contracted between nations. The impact of this 
new World law is increasingly feit. It is irresistibly making its im- 
print on the trial and is emerging as a recognized Standard in 
World affairs. 

II 

When Justice Jackson made his speech before the Tribunal, he 
may not have realized that he had presented the foundation of a 
new World law. Most lawyers, who worship precedents and are 
steeped in petrified legal traditions, had neither the temperament 
nor the vision to chart a new path. Without the persistent courage 
and impressive leadership of Justice Jackson, the trial might have 



\ 



been patterned after the shallow, timid lines of the international 
law of the past. Violation of the classical "natural law" and not a 
codified or formally accepted world law is charged to the defend- 
ants. International law as hitherto known, crystallized in agree- 
ments between nations, is seldom mentioned by the prosecution or 
the defense. Little attempt is being made to dovetail the misdeeds 
of the Nazi regime with the existing international agreements and 
treaties, perhaps with the exception of the British who championed 
this strictly legal approach, and whose interest centered mostly 
around violations of specific provisions of international law or in- 
ternational agreements. The Russians and the French, who were 
forced to submit to an even greater degree of German brutality 
than the British, were inclined to disregard all legal safeguards and 
hold a political trial such as the Riom trial performed by the Vichy 
regime in 1942. 

Jackson's incisive diplomacy and persistent faith in fair legal 
Standards prevented these tendencies from defeating the demo- 
cratic purpose of the Nuernberg trial. The American delegation 
under his leadership championed the cause of a judicial trial based 
on law, refusing to permit the case to degenerate into a spectacle of 
political recrimination. 

Jackson's inspiring opening speech on November 22 set the 
Standard for the whole nature of the trial. He asserted that inter- 
national law is not capable of development by the normal processes 
of legislation, since there is no continuing international legislative 
authority. Therefore, it can grow and develop only when we rec- 
ognize the right to Institute customs and adopt policies that will 
themselves become sources of a new and strengthened international 
law. Jackson gained many followers when he pointed out that 
"when the law evolves by the case method, as did the Common 
Law and as International Law must do if it is to advance at all, it 
advances at the expense of those who wrongly guess the law and 
learn too late their error." 

This speech has awed the judges, defendants, and Allied prose- 
cutors aiike. As an American liaison officer to the Soviet delega- 
tion, I enjoyed the confidence of some of the Russian prosecutors, 
who had come to Nuernberg with their own conception of the trial 
— fashiohed after the Kharkov trials and subsequent cases managed 



86 



AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS 



by the Soviet government. Their enthusiastic comment regarding 
Jackson^s policies was evidence that the Soviet delegates were 
deeply impressed by the irresistible arguments of the American 
Chief prosecutor. Jackson's speech was an inspiration also for the 
French and British to follow the pattern put forth by the Ameri- 

cans. 

It is unprecedented that leaders of a nation should be called 
before an international court for alleged crimes committed against 
their own people. The Nazi leaders are charged not only with con- 
spiracy against the peace of the world, atrocities against allied 
combatants and civilians, but also with persecution of German 
Jews, German churches, German trade unions. The French 
adopted the traditional point of view that crimes committed by the 
German government against their own Citizens do not fall within 
the Jurisdiction of an international tribunal and do not concern 
other nations. Again it was the American Delegation which 
championed the broader point of view and took it upon itself to 
prepare and present the prosecution of crimes committed by Ger- 
mans against Germans, showing how this aspect of the case repre- 
sented the first link of the Nazi conspiracy in its crime wave against 
mankind. 



III 



American investigators, prosecutors, and interrogators are re- 
sponsible for the greatest part of the evidence unearthed. As the 
United States Army advanced into German territory, there were 
attached to each Army and subordinate Organization specialized 
military personnel whose duties were to capture and preserve 
enemy information in the form of documents, records, reports, and 
other files. Accurate and voluminous records kept by the Ger- 
mans were found in Army headquarters, government buildings, and 
elsewhere. During the last stages of the war particularly, such 
docutnents were found in salt mines, buried in the ground, behind 
false walls, and in many places believed secure by the Germans. 
For example, the personal correspondence of Alfred Rosenberg, 
including his Nazi Party correspondence, was found behind a 
false wall in an old Castle near Bayreuth in Franconia. Most of the 



h 



•> 



THE NUERNBERG TRIAL 



87 



Luftwaffe records were processed by the Army at Berchtesgaden. 
Many times the records were so voluminous that they were hauled 
by fleets of trucks to document centers where the laborious process 
of indexing and cataloguing this material was begun. Only the 
most pertinent and incriminating documents, also numbering in 
the thousands, were sent to Nuernberg to the American prosecu- 
tion staff, which processed more evidence than the three other 
prosecutors combined. 

One of these secret documents uncovered contained a confiden- 
tial speech by Himmler delivered at Poznan, Poland, October 4, 
1943, at a meeting of SS Generals. This document well portrays 
the spirit that pervaded Nazi Germany; it is well worth remem- 
bering what Himmler prescribed for his soldiers in the following 
Statement: **We must be honest, decent, loyal, and comradely to 
members of our own blood, and to nobody eise. What happens to a 
Russian or to a Czech does not interest me in the slightest. What 
the nations can offer in the way of good blood of our type we will 
take, if necessary by kidnapping their children and raising them 
here with us. Whether nations live in prosperity or starve to 
death interests me only in so far as we need their people as slaves 
for our Kultur; otherwise it is of no interest to me. Whether 
10,000 Russian females fall down from exhaustion white digging an 
antitank ditch interests me only in so far as the antitank ditch for 
Germany is finished. . . .We Germans, who are the only people in 
the World who have a decent attitude toward animals, will also 
assume a decent attitude toward these 'human animals.' ** 

Less than two years after the speech of Himmler reaffirming the 
master race theory, the surviving leaders of the Nazi regime were 
groveling before the American interrogators. Before the indictment 
was served on the defendants of the Nuernberg trial charging them 
with a series of grave crimes, they had been humble, talkative, and 
willing to disavow the basic foundations of the Nazi faith. It may 
be that by these tactics they hoped to escape the supreme penalty. 
Those of US who participated in the interrogations of Goering, Hess, 
Ribbentrop, and the others were amazed at the pitiful sight offered 
by German leaders, whodenied and deplored everything they had 
preached for more than a decade. 

It is not yet widely known that Goering even turned king*s wit- 



88 



AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS 



ness in trying to help the prosecution refresh the memory of Hess 
at the time when the latter claimed to be a victim of amnesia. 
Goering resorted to all his charm and persuasive power to attain a 
meeting of minds with Hess, who stubbornly clung to his story that 
he had never met Goering and never heard his name. One of the 
interesting aspects of the conversation centered around Hess's ill- 
fated flight to Scotland and revealed hitherto unknown details of 
the mysterious event in 1941 which kept aghast the entire world. 
Goering claimed that he opposed Hess*s nonsensical plan and re- 
fused to let him take a plane for his scheme. He asserted that Mes- 
serschmidt gave Hess the plane to fly to England, and it was re- 
vealed that most of the high Nazi government officials knew of 
Hess's enterprise. 

At the time when Hess still claimed loss of memory, he insisted 
that he had never heard of Mein Kampf and that he knew nothing 
of the Nazi Party. Yet, amidst disclaiming knowledge of any thing 
that occurred more than ten or fourteen days before, he committed 
one significant lapse, strangely unnoticed by the psychiatrists and 
doctors. When questioned about the Nuernberg laws enacted 
against the Jews, he lost his temper; suddenly "remembered" the 
Jews, and reasserted his hatred for them. 

We have seen Goering's accomplice in the biggest robbery of art 
treasures of all time — Alfred Rosenberg, the all-powerful Reichs- 
minister for the Eastern Occupied Territories and erstwhile leader 
of Spiritual and Ideological Training in the Nazi Party — deny the 
ideological foundations of the Nazi Party — deny the ideological 
foundations of the Nazi movement. Rosenberg, the editor of the 
Nazi newspaper Voelkischer Beobachter^ the author of Myth of the 
20th Century y the most widely read Nazi book after Mein Kampfe 
labored feverishly to convince his American interrogators that he 
had had no role in antidemocratic movements,that he disagreedwith 
them, and went even so far as to disclaim any participation in the 
Nazi program directed against the Church and the Jews. When we 
quoted his own writings, he made the cynical reply, in his helpless 
confusion, "After all, is there not a free press?** 

Field Marshai Keitel, Chief of the High Command of the German 
Armed Forces, gave orders not long ago for the mass kiliing of AI- 
lied prisoners of war — particularly commandos. He was an accom- 



THE NUERNBERG TRIAL 



89 



plice in the assassination of several million civilians on the Eastern 
front, Jews and non-Jews alike. If for no other reason, the trial 
accomplished its purpose when Field Marshai Keitel lost his nerve 
during a movie projection of Nazi atrocities and cried hysterically 
at the sight of countless starved and murdered concentration camp 

inmates. 

We have often seen these once bemedalled and goose-stepping 
terrorists break down before their mild-mannered American inter- 
rogators. This trial, more than anything eise, certainly more than 
the defeat of Germany, has made sniveling spectacles out of the ar- 
rogant, war-worshipping Nazi leaders. 

Those of US who conducted the interrogation of Hans Frank, the 
omnipotent dictator of the Government General in Poland, and 
witnessed his arrogance during these interrogations, were sur- 
prised by his reactions at the time of the motion pictures showing 
the results of Nazi atrocities in concentration camps. The man 
who had recorded in his diary that by depriving the Jews of their 
food rations he would murder one or two million Jews sufFered a 
nervous coUapse at the sight of his joyful prognostication, and had 
to be led out of the court room. 

The banker,Hjalmar Schacht, who as Hitler's Minister of Eco- 
nomics worked miracles in financing the German rearmament 
program, is another renegade to the once beloved Fuehrer. During 
the pre-trial interrogations, Schacht spoke with contempt of Hitler. 
He mäde an efFort to create the Impression that he was difFerent 
from the other defendants. He refused to shake hands with Kal- 
tenbrunner, Himmler's deputy who had once controlled the Ges- 
tapo. He once asked a small group of Americans,"Doyouknow 
why I am on the bench of the defendants?" Receiving an affirma- 
tive reply, he exclaimed, "No! You do not know why I am here! 
I am here because the prosecution wishes to maintain a shadow of 
fairness, and they know they will have to acquit me." No time 
was lost in assuring Schacht that he was laboring under illusions. 

IV 

The attitude of the defendants at the trial represented a sharp 
contrast with their frightened defense during the pre-trial inter- 
rogations. Then the surviving leaders of National Socialist Ger- 



90 



AMERICAN ASSOCIATION OF ÜNIVERSITY PROFESSORS 



many instead of defending their once loved Fuehrer shifted every 
responsibility to him. Instead of defending the Nazi creed which 
they preached so long to the people of Germany and the world, 
they resorted to the pitiful task of showing that the thing we calied 
National Socialism did not exist. When this miserable efFort 
failed, as it was bound to fail, they attempted to play the rdle of 
helpless minions with no authority or power of decision in the once 
glorious Third Reich. 

But during the trial itself the defendants under the leadership 
of Goering started to reassert their faith in National Socialism and 
attempted to justify and glorify it. According to the prosecutors 
the defendants have been so overwhelmed by the voluminous, 
undeniable evidence presented against them by the United States, 
the Soviet Union, Great Britain, and France that they saw no hope 
in the continuation of their pre-trial strategy. The documentary 
and Photographie evidence could not be contradicted. 

When Goering took the stand in the month of March, gone were 
the implications of his earlier Statements, reflecting on his colleagues 
and tending to disassociate himself from destructive Hitlerism. 
Instead, in a last desperate efFort he tried to justify himself as well 
as Hitler's National Socialist leadership, arrogating to himself a 
historic importance equal to that of Hitler. He harangued for the 
use of posterity when fighting his verbal duels with the prosecutors 
of the United Nations. 

The defendants oflFered no apologies; they stated German aims 
and methods as though they must be universally acceptable. But 
these words are dwarfed by the Nazi documents themselves written 
^ith German orderliness in the destructive years between 1933 
and 1945. On the basis of this evidence history can judge the 
merits of the greatest trial of modern times. 

The individual Nazi war criminals will undoubtedly obtain their 
deserved penalties, but it is most important that the world — includ- 
ing the people of Germany — should see that the conspirators 
against human right, the oppressors and persecutors of minorities, 
the schemers for aggressive war are calied before a world court to 
answer for their crimes in the name of humanity. It is comforting 
to observe the Nuernberg trial, where four nations with difFerent 
legal Systems try to knit their ideas of just criminal procedura into 



THE NUERNBERG TRIAL 



91 



a cooperative trial. There is no longer individual immunity for 
crimes committed under the sponsorship of government, and no im- 
munity for aggression against the peace of mankind. Those who 
witnessed the trial and followed its presentation of evidence can 
clearly see that the Nazis are not being tried for having lost the 
war, but for having started it. If the Nuernberg trial can establish 
the principle of individual responsibility for international crime, it 
will accomplish its historic purpose. 



1274 N]W 1995, Heft 19 



Buchbesprechungen 



des §33 EStG vorzunehmen ist. Überdies hat das BVerfG (NJW 
1983, 271 = BStBl II 1982, 717 [719]) die Minderung um die zumut- 
bare Belastung nicht für unzulässig erachtet: „Entscheidet sich der Ge- 
setzgeber dafür, der bei Alleinerziehenden gebotenen Berücksichti- 
gung von Kinderbetreuungskosten durch eine steuerliche Regelung 
Rechnung zu tragen, so erfordert das Gebot der Besteuerung nach der 
Leistungsfähigkeit es grundsätzlich, Aufwendungen, die Alleinerzie- 
hende für die Betreuung ihrer Kinder erbringen müssen, soweit sie 
zwangsläufig (vgl. § 33 II EStG) sind, in der tatsächlich entstandenen 
Höhe steuerlich als Minderung des Einkommens zu berücksichti- 
gen." Unter diesen Umständen muß die Entscheidung des BVerfG in 
dem zur selben Rechtsfrage anhängigen Normenkontrollverfahren - 
1 BvL 17/85 (betr. Vorlagebeschluß des Niedersächsischen FG vom 
9. 7. 1985 - VII 624/84 - EEG 1985, 565) - abgewartet werden. 
2. Einspruchsverfahren sind in entsprechender Anwendung des 
§3631 AO auszusetzen (vgl. BFH, BStBl II 758) bzw. nach §36311 
AO mit Zustimmung des Einspruchsführers ruhen zu lassen. Dies gilt 
auch, wenn der angefochtene Steuerbescheid hinsichtlich der Kinder- 
betreuugskosten für vorläufig erklärt worden ist. Aussetzung der Voll- 
ziehung kann gewährt werden. 



Buchbesprechungen 



Nationalsozialismus und Recht. Rechtssetzung und Rechtswissen- 
schaft in Österreich unter der Herrschaft des Nationalsozialismus. 
Hrsg. von V. Davy, H. Fuchs, H. Hofmeister, J. Martell und /. Rei- 
ter. - Wien, Orac 1990. X, 446 S., DM 39,-. 

Obwohl fünf Jahre alt und in Österreich erschienen, kann dieser 
Sammelband mit seinen 21 Beiträgen - nachträglich - nur dringend 
zur Lektüre empfohlen werden. Die durchweg gediegenen speziellen 
Studien schärfen das rechtliche Gewissen und vermitteln ein Mindest- 
wissen über die Rechtstatsachen, die das Dritte Reich mit seinen Aus- 
wüchsen kennzeichnen. Bei der Schrift handelt es sich um die Früchte 
eines Seminars, das die Rechtswissenschaftliche Fakultät der Universi- 
tät Wien im Winter-Semester 1988/89 aus Anlaß des 50. Jahrestages 
des sog. „Anschlusses" Österreichs an das Deutsche Reich am 13. 3. 
1938 (siehe das sog. „WiedervereinigungsG" vom 14. 3. 1938, RFBl. 
1938 I, 237) auf Anregung ihrer Assistenten veranstaltet hat. Gerade 
die Sicht über die (heutige) Grenze verleiht der Vortragsschrift den be- 
sonderen Reiz. Inhalte und Ergebnisse der Diskussionen mit den Refe- 
renten werden leider nicht mitgeteilt. 

Die beiden Herausgeber Hofmeister und Reiter - ersterer Hoch- 
schullehrer, letztere Assistentin - sind mit eigenen Beiträgen vertreten 
(S. 124-148; 347-387). Hofmeister behandelt entsprechend dem Un- 
tertitel des Buches, welches die nationalsozialistische Rechtsentwick- 
lung in Österreich anspricht, die für diese maßgeblichen gesetzlichen 
Rechtsänderungen. Eine totale Rechtsvereinheitlichung - wie im Ver- 
hältnis der Bundesrepublik zur Ex-DDR - fand nicht statt. Das BGB 
galt als zu individualistisch, zu kapitalistisch und jüdisch verzerrt 
(S. 128), das (österreichische) ABGG dagegen der „neuen Rechts- 
idee" näherstehend. Dies ist auch bei Westermann, ZAkDR 1943, 
189 ff., mit Blick auf das Hypothekenrecht nachzulesen. Reiter hat 
eine sehr profunde Studie über die Gleichschaltung der Universitäten 
im Dritten Reich abgeliefert. Wer diese Zeilen liest, wird geradezu in 
lebendiger Weise in die heute kaum nachvollziehbare Vergangenheit 
zurückversetzt. Mit zahlreichen signifikanten (kursiv herausgehobe- 
nen) Originalzitaten, die auch die übrigen Arbeiten auszeichnen, wird 
die Vergangenheit plastisch: Sturm auf die Hochschulen ab 1926 
durch den NSDStudBund; Säuberung der Lehrkörper von 1933-1939 
um 40% ( ! ); Berufungen nur mit dem Segen der NSDAP; Wehrsportla- 
ger; Rektoren-Konferenz vom 15. 12. 1937: „Der Rektor hat realpoli- 
tisch zu denken". Das war die totale Gleichschaltung in Lehre und 
Forschung. Böhm stellt die NS-Ideologie des Zivilprozesses dar 
(S. 149-172). Mit einer Verschwisterung von Rechtsprechung und Ju- 
stizverwaltung sind die öffentlichen Interessen im Sinne der Rechts- 
quelle „Wille des Führers" durchzusetzen (Sonderheft 20 der Zeit- 
schrift „Deutsches Recht" 1934, redaktionelle Vorbemerkung). Der 
Rechtsanwalt ist nicht Interessenvertreter des Mandanten, der zum 
„Glied der Volksgemeinschaft" degeneriert ist, sondern übergreifen- 
der „Rechtswahrer". Die autoritäre Führungsstruktur der Gerichts- 
verfassung dient dem kollektivistischen und ordnungsstaatlichen Sy- 
stem (S. 167). Es kommt zur Mitwirkung der Staatsanwälte im Zivil- 
prozeß (RGBl. 1941 I, 383), was die tapfere Frankfurter Zeitung zur 
Kritik veranlaßt (s. Mühl, ZZP 1988, 223). Das Zivilurteil wird 
„gleichsam zu einem vom Führer (sc. Adolf Hitler) unter Wider- 



spruchsvorbehalt bestätigten Spruch" (S. 170). Der NS-Ideologie 
war selbst eine weitgehende Umwertung des Zivilprozesses gelungen. 

Prinzipielle Bedeutung mit aktueller Sprengwirkung hat die Ausein- 
andersetzung von Luf mit der Radbrucfj-These (S. 18-37). Der 
Rechtspositivismus der Weimarer Zeit kann nicht länger die Expan- 
sion des Nazi-Rechts erklären. Der irrationale Dezionismus, dem das 
braune Recht frönte, kann sich in andersartiger Verkleidung in einige 
Sektoren der modernen Methodenlehre eingeschlichen haben, was 
u.a. für den Bereich des Steuerrechts zu problematisieren wäre. Hier 
sind Tendenzen zu sehen, den Bürger als Steuerpflichtigen zum Glied 
der Lastengemeinschaft zurückzudegenerieren. Der Steuerstaat 
wuchert zum Überlastenstaat. Die Darstellung von Tanzer zum Steu- 
errecht im Nationalsozialismus (S. 331-346) war bereits 1990 eine 
glatte Überraschung für das deutsche Steuerwesen und sucht bis heu- 
te bei uns ihre Entsprechung. Unsere Steuerwissenschaft setzt ihre be- 
merkenswerte Verdrängungskunst fort (vgl. List, DStZ 1993, 610 ff.; 
überzeugend auch Kumpf, StuW 1994, 15 ff.). Nicht ohne Grund 
rügt Tanzer die im Nachkriegs-Österreich fortgesetzte „wechselseiti- 
ge Durchdringung von Steuerverwaltung und -rechtsprechung". 

Rüthers (S. 1-17) erhebt auch in diesem Buch seine warnende Stim- 
me gegen die Kontinuität des institutionellen Rechtsdenkens in mo- 
derner Art seiner Darreichung. In der Tag greifen auch heute noch 
Ausläufer von Ideologien mit Hilfe von Vorverständnissen und un- 
scharfen juristischen Denkfiguren außerhalb der verfassungsgemä- 
ßen Normproduktion rechtspolitisch in den Rechtsanwendungspro- 
zeß ein. Bei diesem Befund muß man 50 Jahre nach dem - hoffentli- 
chen - Untergang des völkischen Rechtsdenkens mit Verwunderung 
feststellen, daß bis heute in Deutschland kein umfassendes und objek- 
tiv-kritisches Inventar-Buch über „Nationalsozialismus und Recht" 
publiziert worden ist. Ein derartiges Rechtsbuch des Hakenkreuzes 
ist überfällig, damit sich jeder Jurist jederzeit über den Gesamtum- 
fang und die Details des seinerzeitigen Mißbrauchs des Rechts, der 
ohne tatkräftige Mithilfe der juristischen Elite nicht hätte durchge- 
führt werden können, unterrichten kann. Nach anfänglicher For- 
schungsblockade findet derzeit in breiten Sektoren des Rechts immer 
noch eine Forschungsbremsung statt. Nach den Ringvorlesungen an 
den Universitäten München, Tübingen, Berlin, Gießen, Münster und 
Frankfurt erfolgte äußerst ebenbürtig die hier besprochene in Wien, 
der die in Göttingen und Kiel sich anschlössen. Die Wiener Veranstal- 
tung hat auch nichts ausgelassen: Die Niederkämpfung des subjekti- 
ven Rechts und des „artfremden Blutes", den „Schutz" der Erb- 
gesundheit sowie die Rechtsgebiete Straf-, Arbeits- Sozialversiche- 
rungs-, Staatskirchenrecht, die Rechtsgeschichte sowie die - sehr in- 
formativ aufgearbeitete - „entartete Kunst". 

Es ist sicherlich - um es in anderer Variation zu wiederholen - ein 
bleibendes Versäumnis unserer Rechtswissenschaft, aus Anlaß des 
50. Jahrestages des Endes des deutschen Unrechtsregimes dessen Op- 
fern keine Enzyklopädie des Versagens unseres Rechts gewidmet zu 
haben. Juristische Vereinigungen und Gesellschaften aller Art haben 
Anlaß zur Kooperation: Für Offenlegung und gegen Verdrängung. 

Rechtsanwalt Professor Dr. Günther Felix, Köln 



Der Nürnberger Prozeß. Das Verfahren gegen die Hauptkriegsverbre- 
cher 1945 bis 1946. Von Klaus Kastner. Mit 200 Abbildungen von 
Ray D'Addario. - Nürnberg, A. Hofmann 1994. 160 S., geb. DM 
68.-. 

Der Band über den Hauptkriegsverbrecherprozeß in den Jahren 
1945 und 1946 in Nürnberg will nicht in Konkurrenz zu den großen 
Darstellungen des Verfahrens (etwa: Bradley F. Smith., Der Jahrhun- 
dertprozeß, 1977; Werner M. Maser, Nürnberg - Tribunal der Sieger, 
1977; Telford Taylor., The anatomy of the Nürnberg Trials, New 
York 1992) treten. Kastner - Vizepräsident des OLG Nürnberg - 
macht denn auch in seiner Einleitung nicht den Versuch einer umfas- 
senden Auswertung der Verhandlungsberichte (veröffentlicht in: Der 
Prozeß gegen die Hauptkriegsverbrecher vor dem Internationalen Ge- 
richtshof Nürnberg, 14. November 1945 bis 1. Oktober 1946, Nürn- 
berg 1 947; Nachdruck 1 984 in 22 Bänden mit 14638 S. und einem Re- 
gisterband mit 635 Seiten), sondern faßt in einer knappen Übersicht 
(rund 40 Seiten des großformatigen Bandes) in anschaulicher Form 
Vorbereitung und Gang des Verfahrens zusammen, bevor er in einem 
knappen Epilog der Frage nachgeht, ob und inwieweit der Internatio- 
nale Militärgerichtshof die Hoffnungen erfüllt hat, die man in den 
Jahren nach Kriegsende auf ihn gesetzt hatte. Die Antwort bleibt am- 
bivalent: Unter Hinweis auf eine Äußerung des Historikers Thomas 
Ntpperdey bei anderer Gelegenheit sieht Kastner „das fundierte histo- 




Buchbesprechungen 



NJW 1995, Heft 19 1275 



rische Urteil" auch über den Nürnberger Kriegsverbrecherprozeß 
^dem Einerseits und Andererseits, dem entgegensetzenden Aber und 
Doch, dem einschränkenden Freilich und dem zwiespältigen Sowohl- 
als auch verpflichtet" (S. 50). Ergänzt wird die Einleitung durch eine 
Dokumentation mit Biographien der 24 Angeklagten, der Aufzäh- 
lung ihrer Verteidiger und einen Dokumentenanhang, der neben dem 
Londoner Viermächteabkommen vom 8.8.1945 das Statut und die 
Verfahrensordnung für den Internationalen Militärgerichtshof ent- 
hält. 

Auch räumlich von gleicher Bedeutung wie der Textteil ist der Bild- 
teil mit 200 (zum Teil farbigen) Fotografien, die fast ausnahmslos von 
Ray D'Addario stammen, der Ende 1945 als 25jähriger mit einer 
Gruppe junger amerikanischer Armeefotografen in Nürnberg eintraf, 
die den Auftrag hatten, das gesamte Geschehen während des Verfah- 
rens des Internationalen Militärtribunals und an seinem Rande auf 
dem Bild festzuhalten. Die Bilder zeigen das Nürnberger Gerichtsge- 
baude, in dem der Prozeß stattgefunden hat, darüber hinaus die Kulis- 
se des zerstörten Nürnberg. Im Mittelpunkt stehen Fotografien aus 
dem Verfahren, besonders - zum Teil außerordentlich eindringliche - 
Portraitaufnahmen der Verfahrensbeteiligten: der Angeklagten, der 
Verteidiger, der Richter und Ankläger, aber auch Streiflichter auf Ne- 
benpersonen (wie Dolmetscher, Sekretärinnen im Dokumentations- 
zentrum, Mitarbeiter der Pressestelle bis hin zum Henker des Militär- 
gerichtshofs, Master Sergeant John C. Woods, der vier Jahre nach 
dem Prozeß - 1950 - bei Funktionsprüfung eines elektrischen Stuhls 
in den USA ums Leben gekommen ist). 

Insgesamt entsteht durch die Abbildungen ein sehr dichtes Bild der 
Atmosphäre im Prozeßsaal, das die notwendig nüchternere Skizze 
Kastners über den Prozeßverlauf hervorragend ergänzt. 

Rechtsanwalt Professor Dr. Hermann Weber, Frankfurt a. M. 



Auschwitz vor Gericht. Völkermord und bundesdeutsche Strafjustiz. 
Mit einer Dokumentation des Auschwitz-Urteils. Von Gerhard 
Werle und Thomas Wandres (Beck'sche Reihe, Bd. 1099). - Mün- 
chen, Beck 1995. 237 S., kart. DM 19,80. 

Die Strafsache gegen Mulka u.a. hat als Auschwitz-Prozeß Ge- 
schichte gemacht. Verhandelt wurde sie 1963/64 vor dem Schwurge- 
richt Frankfurt a.M. 20 Monate lang an 183 Verhandlungstagen und 
nach der Vernehmung von 359 Zeugen 1965 durch Uneil abgeschlos- 
sen. Millionen von Deutschen hat dieser Prozeß die Augen geöffnet - 
nicht zuletzt durch die ausführliche Berichterstattung, die Bernd Nau- 
mann dem von der Staatsanwaltschaft sorgfältig vorbereiteten und 
vom Gericht mit großer Akribie geführten Verfahren in der Frankfur- 
ter Allgemeinen Zeitung zuteil werden ließ. Das jetzt von Werle, Straf- 
rechtler an der Berliner Humboldt-Universität, und seinem Mitarbei- 
ter Wandres vorgelegte Taschenbuch erzählt die Geschichte des Au- 
schwitz-Prozesses gegen 22 Angehörige des Konzentrationslagers 
und dokumentiert das Urteil in Auszügen. 

Das I.Kapitel reiht den Prozeß in den Gesamtzusammenhang der 
strafrechtlichen Aufarbeitung des NS-Regimes ein und gibt einen sy- 
stematischen Überblick über die Entwicklung, von den Prozessen der 
Alliierten über den Ulmer Einsatzgruppenprozeß von 1958 bis zum 
Auschwitzprozeß. Dabei setzen sich die Verfasser mit den rechtlichen 
Problemen und insbesondere mit den Grundlinien der Rechtspre- 
chung auseinander, der sie u.a. Widersprüchlichkeit vorwerfen. Das 
2. Kapitel befaßt sich mit der Vorgeschichte und dem Verlauf des Pro- 
zesses, der nach den Vorstellungen von Generalstaatsanwalt Fritz 
Bauer, der den Anstoß zu dem Großverfahren gab, Warnung und Leh- 
re sein und der Welt zeigen sollte, daß das neue, demokratische 
Deutschland der Würde eines jeden Menschen verpflichtet sei. 

Ausgewählte Passagen aus dem Urteil des Schwurgerichts enthält 
das 3. Kapitel. Hier werden die Entstehung, der Ausbau und die Orga- 
nisation des Lagerkomplexes beschrieben (Lagepläne im Anhang des 
Buches ergänzen die Darstellung). Außerdem wird am Beispiel der An- 
geklagten Mulka, Boger, Kaduk, Capestus, Klehr und Bedank sicht- 
bar gemacht, daß die Mörder von Auschwitz nicht nur Rädchen im 
Getriebe der Todesfabrik waren, sondern - wie zutreffend gesagt 
wird - als Personen ihren realen und faßbaren Teil am Geschehen hat- 
ten. Das 4. und letzte Kapitel ist „Was bleibt.^" überschrieben und be- 
faßt sich vor allem mit der sogenannten Auschwitz-Lüge. In der Tat 
muß man fragen, weshalb in der Diskussion darüber kaum auf die un- 
bestreitbaren Feststellungen im Auschwitzurteil Bezug genommen 
wurde. 

Zur Stellungnahme fordern die juristischen Ausführungen der Ver- 
fasser heraus. Beizupflichten ist dem Bedauern, daß iur die Ahndung 



der NS-Verbrcchen kein rückwirkendes, auf die Eigenart dieser Staats- 
verbrechen zugeschnittenes Sonderrecht zur Verfügung stand. So galt 
der Satz, was bis 1945 Recht war, könne nachher nicht Unrecht sein. 
Aber dieser Fehler ist nicht den Juristen als solchen anzulasten, son- 
dern der bundesdeutschen Politik, die damals so wenig ein rückwir- 
kendes Spezialgesetz für das NS-Unrecht wollte wie 1990 ein solches 
für die SED-Verbrechen. Die Justiz verdient deshalb keinen Tadel we- 
gen von ihr betriebener „versteckter Rückwirkung", sondern Lob da- 
für, daß sie den Schutzwall, den das zur Tatzeit geltende (NS-)Recht 
um die Täter legte, durchbrach, soweit es sich um Verletzungen des 
naturrechtlichen „Kernbereichs des Rechts" handelte. Auf das teils 
manipulierte, teils pervertierte Rechtsbewußtsein der NS-Zeit kam es 
unter diesen Umständen nicht an. In die Verantwortlichkeit der Politi- 
ker fällt auch das Verjährenlassen der Totschlagsdelikte, so daß sie 
nur noch Mordtaten verfolgbar waren. Selbst zur Aufhebung der Ver- 
jährung bei Mord waren drei Anläufe im Bundestag erforderlich, bis 
dieser endlich - 1979! - die Kraft zur Entscheidung fand. Man sollte 
das, wofür Politiker, die sich nicht an Werten, sondern an Stimmun- 
gen orientieren, verantwortlich sind, nicht dem anonymen Zeitgeist 
in die Schuhe schieben, erst recht nicht der gesetzesgebundenen Justiz. 

Richtig ist demgegenüber die Kritik daran, daß die Rechtspre- 
chung in den Tätern nur Gehilfen sehen wollte und zu Urteilen gelang- 
te, bei denen das Strafmaß in keinem Verhältnis zu den Taten stand. 
Reue oder auch nur Einsicht in das Unrecht ihres Tuns zeigten die An- 
geklagten des Auschwitzprozesses ebensowenig wie heute die Ange- 
klagten in den Prozessen wegen DDR-Regierungskriminalität. Gut ge- 
lungen ist den Verfassern die Schilderung der Schwierigkeiten bei der 
Sachaufklärung und Beweisführung. Nicht nur als ehemaliger Präsi- 
dent des LG Frankfurt a.M. hätte sich der Rezensent gewünscht, daß 
neben der Arbeit der Staatsanwaltschaft auch die Leistungen der Rich- 
ter gebührend hervorgehoben worden wären, insbesondere die des 
Vorsitzenden, der während des Verfahrens zum Senatspräsidenten be- 
fördert wurde. Dieser war kein „Antifaschist" wie Fritz Bauer, son- 
dern ein Richter eher konservativen Zuschnitts. Gleichwohl führte er 
die Verhandlung beispielhaft und deckte das grausame Geschehen 
Stück für Stück auf. 

Alles in allem: Ein vorzügliches, instruktives Werk, dem man 
wünscht, daß es den weiten Leserkreis, den es anspricht, auch errei- 
chen möge. Zur rechten Zeit erschienen, setzt es ein markantes Zei- 
chen wider das Vergessen. „Verdrängen hält die Erlösung auf. Erin- 
nern bringt sie näher" (Yad Vashem). 

Präsident des OLG a. D. Dr. Rudolf Wassermann, Goslar 



Der Einfluß deutscher Emigranten auf die Rechtsentwicklung in den 
USA und Deutschland. Vorträge und Referate des Bonner Sympo- 
sions im September 1991. Hrsg. von Marcus Lutter, Frwc/ C. Stie- 
fel und Michael H. Hoeflich. - Tübingen, Mohr 1993. XII, 571 S., 
geb. DM 198,-. 

Der vorliegende Band dokumentiert die Vorträge, die bei einem 
1991 in Bonn unter dem gleichen Titel veranstalteten deutsch-ameri- 
kanischen Symposion gehalten worden sind. Er versteht sich als Teil 
einer Reihe, die das Leben und Wirken der während des NS-Regimes 
in die USA emigrierten deutschen und österreichischen Juristen dar- 
stellen will. Der erste Band - „Deutsche Juristen im amerikanischen 
Exil" von Stiefel und Mecklenburg, 1991 im gleichen Verlag erschie- 
nen, - war den Biographien der Emigranten gewidmet. Der vorliegen- 
de Band verfolgt demgegenüber das Ziel, die Wirkung der Emigran- 
ten-Juristen auf das amerikanische und das deutsche Recht aufzuzei- 
gen. 

Nach einem kurzen Vorwort der Herausgeber, in dem der Zweck 
des Werkes erläutert wird, sind die bei dem Symposion von Ernst 
C. Stiefel, Klaus Kinkel, Stefan A. Riesenfeld, Michael H. Hoeflich 
und M. Rainer Lepsius gehaltenen Ansprachen abgedruckt, in denen 
allgemeine Aspekte der Emigration behandelt werden. Im anschlie- 
ßenden Hauptteil des Buches stellen 38 Autoren die Bedeutung und 
den Einfluß von 23 deutschen und österreichischen Emigranten-Juri- 
sten dar. Einigen von ihnen sind mehrere Beiträge gewidmet. Berück- 
sichtigt sind folgende Persönlichkeiten (in Klammern: die jeweiligen 
Autoren): Edgar Bodenheimer (Durham), Brigitte Marianne Boden- 
heimer (Krause), Rudolf Callmann (Baums), David Daube (Watson), 
Albert A. Ehrenzweig (Kessler/Bolgär/Reimann), Ernst Freund 
(Reitz), Carl Fulda (Baade), Max Hachenburg (Hommelhoff), Adolf 
Homburger (Fisch), Hermann Ulrich Kantorowicz (Kaiser), Hans 
Kelsen (Herzog/jabloner/Walter), Friedrich Kessler (Bernstem/joer- 
ges/Kondgen/Sandrock), Otto Kirchheimer (Arzt/Teuhner), Heinrich 



L 



■"SU 



12^6 .\/\V /^9>. Heft /y 

Kronstein iGerber/Rehhinder), Stephan Kuttner (Nörr/Pennmgton), 
Arthur Lenhoff iJnnker/Grnßfeld und Winship), Kurt H. Nadelmann 
(Bolgar/Stürner), Franz Leopold Neumann (Rückert), Ernst Rabel 
(Clark/Großfeld und Winshtp/Kegel), Max Rhemstem (Glendon/ 
v.Marschall/Langbem), Stefan A, Riesenfeld (Bolgär/Stürner}, Ru- 
dolf B. Schlesinger (Jünger/Kötz/Schlesmger). 

Die Beitrage haben sehr unterschiedlichen Charakter: Einige von ih- 
nen bemuhen sich um eine objektive wissenschaftliche Analyse, ande- 
re sind vorwiegend biographisch angelegt oder verstehen sich als per- 
sonliche Erinnerungen. Manche Beiträge sind sehr umfangreich und 
mit vielen Fußnoten sowie mit einem Literaturverzeichnis versehen, 
andere beschränken sich auf eine kurze Skizze. In die Darstellung ein- 
bezogen wurden auch Juristen, deren Werk eher rechtssoziologisch 
{Kirchheimer) oder politologisch (Neumann) ausgerichtet ist. Die Re- 
ferate wurden teils von ehemaligen Schülern und Mitarbeitern gehal- 
ten, teils von Kollegen und Freunden, teils von Wissenschaftlern, die 
in den USA studiert oder gewirkt und sich besonders intensiv mit dem 
Werk der Emigranten beschäftigt haben. Zu bedauern ist, daß es 
nicht möglich war, weitere wichtige - weil „einflußreiche" - Persön- 
lichkeiten einzubeziehen. Es fehlen nicht wenige bedeutende Emigran- 
ten-Juristen wie z. B. Martm Domke, Wolfgang Friedmann, Karl Loe- 
wenstem und Arthur Nußbaum sowie eine Reihe bekannter Anwälte 
(z.B. Otto L Walter). Riesenfeld nennt in seiner Ansprache 19 weite- 
re Namen. Nicht glücklich ist auch die Gliederung nach Referenten 
statt nach dargestellten Personen oder anderen sachlichen Gesichts- 
punkten. Die Unterschiede in Darstellungsweise, Inhalt und Perspekti- 
ve sind aber letztlich kein Mangel, sondern eher ein Vorteil des Wer- 
kes. Auf diese Weise entsteht ein besonders authentisches, lebendiges 
und farbiges Bild des Wirkens der Emigranten. Insgesamt hat das au- 
ßerordentlich interessante und wertvolle Werk vorwiegend den Cha- 
rakter eines Gedenkbuches und einer Materialsammlung, die für spä- 
tere - stärker wissenschaftlich-systematisch ausgerichtete - Studien 
zur Erforschung der Emigration von großem Nutzen sein dürfte. 

Das Buch will nicht nur die Tätigkeiten und die „Leistungen" der 
Emigranten, sondern auch ihren Einfluß auf die Rechtsentwicklung 
in den Vereinigten Staaten und in Deutschland darstellen, also juristi- 
sche „Wirkungsgeschichte" sein. Dieser „Einfluß" betraf sowohl die 
Lehre (z.B. Rtesenfeld, Freund, Kuttner, Rhemstein, Schlesinger) und 
die juristische Fachliteratur (z.B. Kessler, Stiefel) als auch die Recht- 
sprechung (z.B. Kessler, Callmann), die Verwaltungspraxis und sogar 
die Gesetzgebung, vor allem auf der Ebene der Einzelstaaten (Freund, 
B. Bodenhetmer, Riesenfeld, Schlesinger), sowie generell die Rechts- 
politik (Kronstem). Die hier dargestellten Emigranten wirkten aber 
vorwiegend als Professoren. Deren unmittelbarer „Einfluß" auf die 
Rechtspraxis ist - zumindest in einem Common Law-Land wie den 
Vereinigten Staaten - in der Regel schwer meß- und nachweisbar. Die 
amerikanischen Gerichte zitieren nur selten expressis verbis die Auf- 
fassungen der Literatur. Erstaunlicherweise ergibt sich aber aus vielen 
Beiträgen des Buches, daß bestimmte Emigranten aus Deutschland 
durchaus von amerikanischen Gerichten in den Entscheidungsgrün- 
den herangezogen worden sind. Sic waren im fremden Land in kurzer 
Zeit zu „Rechtshonoratioren" i.S. Max Webers und Max Rhetnstems 
geworden! Eine systematische und umfassende Darstellung des „Ein- 
flusses" der Emigranten konnte in dem gegebenen Rahmen verständli- 
cherweise nicht gegeben werden. Zu Einzelbereichen liegen bereits, 
wie auch die Fußnoten in dem vorliegenden Werk zeigen, eine Reihe 
aufschlußreicher Untersuchungen vor. 

In welchen Sachgebieten ist nun ein Einfluß der Emigranten auf die 
amerikanische Rechtsentwicklung tatsächlich zum Tragen gekom- 
men.^ Offensichtlich weniger im traditionellen Common Law-Bereich 
(eine Ausnahme bildet insoweit z. B. Kessler), vielmehr vor allem in 
Spezialgebieten wie z.B. im Wettbewerbsrecht, im gewerblichen 
Rechtsschutz, im Völkerrecht, im Kollisionsrecht („Conflict of 
Laws"), im Konkursrecht und im Arbeitsrecht. Neben dem unmittel- 
baren Einfluß steht der mittelbare und längerfristige Einfluß, der 
durch Lehre und Forschung ausgeübt wurde und der nicht nur im ma- 
teriellen Recht, sondern auch in Stil und Methode des amerikani- 
schen Rechts seinen Niederschlag gefunden hat. Dieser indirekte Ein- 
fluß ist noch weniger meßbar als der direkte, er scheint aber im Falle 
vieler Emigranten durchaus großes Gewicht gehabt zu haben. Im übri- 
gen konnte ihre Wirkung in den USA auch bei höchster Qualifikation 
recht unterschiedlich ausfallen, wie z.B. der Beitrag von Clark über 
Ernst Rabel zeigt. Neben dem Einfluß der Emigranten auf die inner- 
amerikanische Rechtsentwicklung ist ihre Bedeutung für die Verbrei- 
tung der Rechtsverglcichung und für den transatlantischen Aus- 
tausch besonders hervorzuheben. Gerade in diesen Bereichen konn- 
ten sie sich frei entfalten: so wurden viele von ihnen - einst aus 
Deutschland vertrieben - zu engagierten Mittlern zwischen Amerika 
und Europa. 



Buchbesprechungen 

Den Initiatoren und Organisatoren des Bonner Symposions \Stte- 
fel. Lutter und Hoeßich) ist es zu danken, daß nach dem Svmposion 
auch dieses eindrucksvolle Werk zustandegekommen ist. Mit ihm 
wird die Erinnerung an viele große deutsch-amerikanische Juristen 
wachgehalten und ihre Leistung im Wechsel der Generationen vor 
dem Vergessen bewahrt. Im übrigen bildet es eine „Fundgrube" für 
die Rechtsvergleichung, für das Studium der neueren amerikanischen 
und deutschen Rechtsentwicklung und für die Erforschung der „Zeit- 
geschichte". So ist diesem Buch eine möglichst weite Verbreitung zu 

wünschen. 

Ministerialrat Reimer von Bornes, LL.M., Bonn 



Der Rechtsschutz des Parteimitgliedes vor Parteischiedsgerichten. 

Von Trutz Graf Kerssenbrock. - Baden-Baden, Nomos 1994, 1604 
S., kart. DM48,-. 

Das Innenleben der politischen Parteien ist seit einiger Zeit in Bewe- 
gung geraten. Seit einerseits die Wahl zur Hamburger Bürgerschaft 
wegen Verstößen gegen das Gebot innerparteilicher Demokratie wie- 
derholt werden mußte, andererseits die SPD mit der Kür ihres Kanz- 
lerkandidaten per Mitgliederbefragung einen zumindest kurzfristigen 
Mobilisierungseffekt erzielen konnte, basteln die Parteien allenthal- 
ben an Organisationsreformen. Verbesserte Einflußmöglichkeiten 
der Parteibasis auf die Kandidatenaufstellung, Erprobung plebiszitä- 
rer Elemente, Einführung sogenannter Schnuppermitgliedschaften, 
Öffnung von Parteigremien für Nichtmitglieder - in diesen und ande- 
ren Neuerungen artikuliert sich offenbar die Einsicht, daß es im alten 
Trott nicht mehr weitergehen kann. Da indes die Demokratisierung 
der Parteien mehr von oben betrieben als von unten gefordert wird, 
verwundert es kaum, daß ein radikalerer Gegenentwurf, der dem ge- 
ruhsamen Leben in der Führungsetage ein für allemal em Ende ma- 
chen will, in der aktuellen Debatte eher stiefmütterlich behandelt 
wird. Dieses vor allem von Politikwissenschaftlern seit längerem favo- 
risierte Konzept setzt weniger auf die Verbreiterung von Konsens als 
vielmehr auf die heilsame Wirkung innerorganisatorischer Pluralität 
und einen verbandsinternen Gruppenwettbewerb. Bausteine dieses 
Konzepts sind auf der einen Seite weitreichende Meinungs- und Verei- 
nigungsfreiheit in der Partei, auf der anderen ein ebenso weitreichen- 
der Beitrittsanspruch sowie eine Beschränkung von Unvereinbar- 
keits- und Ausschlußgründen. Der Sache nach wird damit ein Recht 
auf innerparteiliche Opposition gefordert, das allerdings ohne einen 
effektiven Rechtsschutz des Parteimitgliedes von vornherein ziemlich 
folgenlos bleiben dürfte. Gerade hier setzt die vorliegende Arbeit an. 
Der Autor, der als CDU-Abgeordneter und Vorsitzender des Bar- 
sc/7e/-Ausschusses im Kieler Landtag seinerzeit für eine ruckhaltlose 
Aufklärung der Affäre um den ehemaligen schleswig-holsteinischen 
Ministerpräsidenten eintrat und im Anschluß daran am eigenen Leib 
erfahren durfte, wie unbeliebt man sich unter Parteifreunden mit so 
dubiosen Forderungen wie der nach mehr Sauberkeit in der Politik 
machen kann, will diesmal Licht in die rechtliche Grauzone des Ver- 
fahrens vor den Parteischiedsgerichten bringen, das in den ^§ 10, 14 
und 16 des Parteiengesetzes nur rudimentär geregelt ist. Vor dem Hin- 
tergrund seiner Auffassung, daß effektiver Rechtsschutz auch und ge- 
rade dazu da sei, Minderheiten vor der Willkür der Mehrheit zu schüt- 
zen (u.a. S. 32), plädiert er für mehr Mündlichkeit, Öffentlichkeit, Of- 
fenheit und Transparenz der Verhandlungen. Gewährleistung größt- 
möglicher Fairneß auch im Umgang mit Abweichlern bei gleichzeiti- 
ger Berücksichtigung der Befriedungsfunktion des Verfahrens ist das 
Ziel, dem sich die Untersuchung verpflichtet weiß, und zu dessen Er- 
reichung sollen unter anderem die Anwendung eines eingeschränkten 
Untersuchungsgrundsatzes, die Herstellung von Publizität, die Zulas- 
sung Parteiloser als Rechtsbeistand, die Begrenzung der Befugnis des 
Vorstandes zur Verhängung von Ordnungsmaßnahmen oder de lege 
feranda etwa die Einführung eines an § 80 VwGO onenierten Eil- 
rechtsschutzes dienen. Daß allein damit der innerparteilichen Demo- 
kratie auf die Beine geholfen werden kann, ist unwahrscheinlich und 
wird vom Autor auch gar nicht erst behauptet. Ob die bloße Verände- 
rung rechtlicher Bedingungen hierzu überhaupt etwas beitragen und 
das „eherne Gesetz der Oligarchie", von dem die Parteiensoziologie 
seit den Untersuchungen von Robert Michels zu Beginn dieses Jahr- 
hunderts cum grano salis immer noch ausgeht, ins Wanken bringen 
kann, scheint ohnehin zweifelhaft: Die Willensbildung in den Partei- 
en lebt vom Engagement der Parteimitglieder, und solange unter die- 
sen der Typus der Karteileiche dominiert, werden auch Kuren, die auf 
Erweiterung oder zumindest Absicherung von Partizipationsmoglich- 
keiten zielen, nur begrenzt anschlagen können. 

Dn Uwe Volkmann, Marburg 



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Note 
THE NUREMBERG LEGACY: AN UNFULFILLED PROMISE 

Gould School of Law, University of Southern California 

March, 1990 

Steven Fogelson 

Copyright 1990 by the University of Southern California; Steven Fogelson 

By the Agreement and this trial we have put Litemational Law squarely on the side of peace as 
against aggressive warfare, and on the side of humanity as against persecution. In the present 
depressing world outlook it is possible that the Nuremberg trial may constitute the most 
important moral advance to grow out of this war. [FNl] 

Justice Robert H. Jackson 
American Prosecutor at Nuremberg 

I. INTRODUCTION 

The Nuremberg Trial of Major War Criminals was a landmark event in the development of 
international law. It infused international law with fundamental moral principles in a manner not 
Seen for more than a Century and gave birth to the modern international law of human rights. It also 
gave notice to the nations of the world that, henceforth, Claims of absolute sovereignty must yield to 
the world conmumity's claim on peace. This legal and moral legacy promised to change the world for 
the better, but a good portion ofthat great promise has been only imperfectly realized. ^ 

There are many possible avenues that might help bring the promise of Nuremberg-the promise 
Justice Robert H. Jackson referred to in the above quotation--to fruition. One avenue leads directly 
through American courtrooms. As Chief Justice John Marshall said in The Nereide [FN2] "the 
Court is bound by the law of nations which is a part of the law of the land."' [FN3] If courts in the 
United States aggressively apply international law as properly informed by the Nuremberg 
principles, they could help complete the transformation that Nuremberg began. 

This Note argues that international law, properly informed by the Nuremberg principles, deserves 
proper and consistent application in ♦834 American courts, but is often inadequately respected. Parts 
n and HL, respectively, examine the major events leading to the Trial of the M^or War Criminals 
and the proceedings of the trial itself. This background is necessary to fiilly appreciate the principles 
embraced at Nuremberg. Part IV explores the debate over the legitimacy of the trial, and thereby 
illuminates the legal, historical, and moral justifications for the trial. Part V examines several of the 
principles set forth at Nuremberg and addresses how these principles have been integrated into 
modern international law to date, and Part VI argues that this international law should be given 
binding effect in American courtrooms. Finally, Part VE criticizes the way in which the Nuremberg 
principles have been integrated into our modern domestic law and uses the Alien Tort Claims Act 
[FN4] as a specific example of how the American legal System can benefit firom proper application of 
these international law principles. 

n. EVENTS LEADING UP TO THE TRIAL 






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The Trial of the Major War Criminals at Nuremberg was the first comprehensive attempt to 
luiravel the factual complexity of the undeniably horrible crimes committed by the German Nazi 
regime. It also remains the most comprehensive attempt to piinish those responsible for those crimes. 
That the crimes were cruel and inhimian to a degree not previously known to himianity was 
exceptionally well documented by the Nazis themselves. [FN5] Millions of innocent civilians were 
murdered as part of a systematic cold blooded plan or series of plans. [FN6] Chief among the Nazi's 
victims were the Jews, but by no means did they limit their victims to Jews alone. The Nazis also 
targeted Gypsies, Jehovah's Witnesses, and homosexuals for persecution. [FN7] They carried out 
crimes *835 against their political enemies [FN8] and terrorized the populations of the countries 
they occupied. [FN9] Human beings were used for medical experiments in which pain, sufifering, and 
death were the expected results, [FNIO] and masses of people were deported to work as slave laborers 
under horrible conditions in German armament factories. [FNll] Entire towns were destroyed, their 
inhabitants murdered, and the buildings razed to the groimd. [FN12] The list of crimes is virtually 
endless. For the most part, the elite leaders of the fallen Nazi govemment, when charged at the 
prisoner's dock at Nuremberg, made no attempt to deny that these crimes were committed. Rather, 
they admitted that the crimes occurred, but tried to shift the responsibility for the crimes to others 
[FN13] 

The Allied powers knew of these crimes as early as 1940 when the Polish and Czechoslovakian 
govemments in exile, along with the British and French, condemned the massive killing of civilians 
by the Nazis. [FN14] The Allied leaders subsequently issued several wamings pronouncing these acts 
as crimes and promising to punish the responsible individuals, [FN15] and on November 1, 1943, the 
Allied heads of State, Franklin Delano Roosevelt, Winston Churchill, and Joseph Stalin, issued the 
Moscow *836 Declaration. [FN16] This Statement called for the retum of those responsible for the 
Nazi horrors to the locale of their crimes for trial and punishment by the local govemments after 
their liberation. [FN17] However, the declaration made clear that the cases of the major criminals 
whose crimes spanned geographic boundaries would not be affected. [FN18] The fate of these major 
criminals would be decided by "Joint decision of the Govemments of the Allies."' [FN19] 

A. POLITICS AND POLICY 

The Allies did not devise a concrete plan to carry out the early threats of punishment against the 
Nazi criminals until the latter half of 1944, when the Allies successfully landed at Normandy and 
broke out of the beachhead. [FN20] At that point the Allies could foresee ultimate victory and 
therefore needed to devise a specific plan for dealing with the Nazi criminals. [FN21] Because the 
Nazis' crimes were imique, no existing legal System could sufficiently address them, [FN22] and 
consequently, various factions in the American govemment argued for dififerent approaches. [FN23] 

Initially, there was a real possibility that the United States would agree with Great Britain, which 
favored summary execution of the major criminals upon their capture by the advancing Allied 
armies. [FN24] In the ♦837 end, however, the Allies responded to this legal and political challenge by 
expanding international law to encompass it. The Allies decided to try and punish those who 
perpetrated the worst crimes the world has ever seen and in that way establish clear principles of 
international law that would promote peace and deter war in the future. [FN25] They sought to 
establish a lasting peace, xinlike the previous peace of Versailles, and they sought to establish 
principles to inform and guide the future acts of all nations so as to ensure what we now call basic 
human rights. [FN26] 

1. Debate Within the American Administration 

President Roosevelt and other Allied leaders made general comments conceming the shocking 
crimes the Nazis were committing and their clear intent to bring those responsible to justice. [FN27] 






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However, the Allies did not seriously consider a specific plan to eflfect that Intention until after the 
breakout from Normandy in July- August of 1944. [FN28] Because the Allied armies needed policies 
to guide their actions as an occupying force once they entered Germany, the first official "plan"' 
came, naturally enough, from the War Department of the United States. This plan was in the form of 
a handbook of procedures to be used by the occupying forces within Germany ("the Handbook"'). 
[FN29] The Handbook contained directives to arrest all members of certain Nazi organizations, such 
as the Gestapo [FN30] and the SD, [FN31] the ofificers of other organizations, *838 such as the 
Waffen SS [FN32] and the SA, [FN33] as well as all high ranking Nazi party ofiFicials. [FN34] The 
Handbook also contained provisions calling for the reestablishment of local govemment to manage 
daily affairs. [FN35] 

Secretary of the Treasury Henry Morgenthau, Jr., an influential member of President Roosevelt's 
cabinet, was angered by what he considered to be the benign provisions of the Handbook. [FN36] He 
supported a plan of "'pasturalization"' of Germany, which would completely deindustrialize the 
country. [FN37] He reflected a populär sentiment that the German people should suflFer for the harms 
they had caused [FN38] and recommended that the major war criminals be summarily executed. 
[FN39] He gained partial support from President Roosevelt, who pressed for stemer measures than 
those proposed by the War Department. [FN40] 

Morgenthau and the American Secretary of State, Cordeil Hüll, were convinced that the major 
criminals should be expeditiously tried ♦839 and executed. [FN41] Secretary of War Henry Stimson 
had protested that the ofificers in the field would at least need "definite Instructions"' if summary 
executions were to be ordered. [FN42] He soon became convinced, however, that a trial was the 
appropriate tool for dealing with the Nazi criminals. [FN43] He believed that by a thorough 
"investigation [ ] and trial of all the Nazi leaders and Instruments,"' [FN44] the abhorrence of the 
civilized world would be brought home to the German people and would help rehabilitate them. 
[FN45] He also disagreed with Morgenthau's pastin-alization plan, believing that such oppressive 
measures "do not prevent war, they tend to breed war."' [FN46] 

2. The British Plan 

Simultaneously, the British were considering these same questions. They shared the concem of the 
United States that the United Nations War Crimes Commission ("the Commission"') [FN47] might 
attempt to preempt Britain and the United States from independently deciding these issues, and they 
received support from the United States to stall the Commission from reaching any definite 
conclusions. [FN48] The British advocated a plan of summary execution. [FN49] As expressed by 
Lord Chancellor Sir John Simon, the disposition of the major war criminals was a political decision 
to be made by the govemments of the Allies and should not to be left to judges. [FN50] The British 
were also concemed with the impracticality of the Allies attempting to hold a Joint trial. [FN51] 

*840 These machinations of the Americans and British culminated in the Quebec Conference, 
[FN52J where Churchill and Roosevelt endorsed Morgenthau's harsh economic plan for Germany and 
agreed to compose and submit to Stalin a list of war criminals to be summaiily executed. [FN53] 
However, when the details of the Quebec Conference became public, Roosevelt faced an 
overwhelmingly negative reaction in the American press. [FN54] Simultaneously, the Allied 
offensive was stalled just within the borders of Germany, and the 1944 Presidential election was only 
weeks away. Being a consummate politician, Roosevelt downplayed the significance of the Quebec 
Conference and, though he did not specifically renounce it, qualified his intentions to such a degree 
that American policy was again an open question. [FN55] 

3. The Idea for a Trial (The Bemays Plan) 






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Into the breach stepped Lt. Colonel Murray C. Bemays, Chief ofG-1 (the Special Projects Office of 
the Personnel Branch of the War Department). He outUned a comprehensive strategy to purge 
Germany of Naziism by using a System of trials of the Nazi leaders and organizations. [FN56] His 
plan centered on one major initial trial condemning the entire Nazi System as criminal [FN57] 
because the enormity of the Nazi crimes and the number of individuals involved in planning and 
executing the crimes made individual trials imtenable. [FN58] 

The Allies were eager to rehabilitate the German people as quickly as possible to facilitate the 
arduous task of rebuilding a destroyed Europe and reestablishing a secure international order. 
[FN59] One main trial of representative Nazi leaders and groups would reveal the true evil nature of 
the Nazi govemment and educate the people to the fact that crimes were instigated and carried out 
as a part of oflficial govemment policy. [FN60] The Bemays Plan was intended to force the German 
people to confront the *841 nature of this evil and to examine their collective guilt. [FN61] Bemays 
believed that an open trial that illuminated the enormity of these crimes would have this eflfect and 
would spur the Germans to cooperate in building a more secure and pacific Europe, rather than 
allowing them to believe that they had simply lost another war. [FN62] 

The Bemays Plan also foresaw the difificulty of prosecuting crimes of the German govemment 
against their own nationals [FN63] because these crimes were generally agreed to be outside the 
province of international law. [FN64] However, by using a conspiracy theory to indict the entire Nazi 
regime for complicity in War Crimes, evidence of crimes against their own nationals would be 
included as demonstrating the brutal criminal nature of the conspiracy. [FN65] Bemays also pointed 
out that summarily executing the criminals would lack the educative eflfect of a well documented 
trial and might even have the opposite eflfect of making martyrs out of the criminals. [FN66] 

Secretary Stimson championed the Bemays Plan, [FN67] and the plan's basic concepts ultimately 
provided the framework for the final disposition of the Nazi criminals. Secretary of State Hüll 
reversed his earlier position and allied himself with Stimson in pressing President Roosevelt to agree 
to a trial rather than summary execution. [FN68] However, at the same time that the Bemays Plan 
gained support within the govemment, serious questions arose about the feasibility of its 
Implementation. 

There were formidable legal and political questions that needed resolution if a trial was to take 
place. [FN69] International law had not previously addressed crimes such as those committed by the 
Nazis. For example, the notion of prosecuting a govemment for crimes committed against its own 
Population was unheard of [FN70] Although some precedent *842 supported the Charge that waging 
an aggressive war was unlawfiil, [FN71] no tenet of international law proposed to hold individual 
members of the warring state criminally liable. [FN72] To the contrary, a persistent doctrine fi-om 
the colonial days of the 19th Century set forth that it was within any state's sovereign power to 
launch a war. [FN73] Furthermore, the doctrine of conspiracy was unknown to all but the Anglo- 
American legal System, [FN74] and many feared it would be impractical to fashion an eflfective 
tribunal that could combine Anglo-American and Continental legal Systems. [FN75] In light of these 
criticisms, support for the Bemays Plan steadily waned. [FN76] 

The tide in Washington, however, tumed again in favor of the Bemays Plan in the wake of the 
shock and outrage resulting from the Ist SS Panzer Division's massacre of seventy captured 
American soldiers at Malmedy on December 17, 1944. [FN77] This event leant strong support to the 
contention that the Nazis conspired to commit atrocities through the use of oflficial Nazi 
organizations. [FN78] On January 3, 1945, President Roosevelt indicated that he might support the 
War Department plan, and he urged the Department to continue looking into prosecuting the Charge 
of conspiracy. [FN79] 






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There foUowed a spirited exchange within the administration that rekindled the debate over the 
legality and propriety of holding a trial. Several criticisms were raised on the basis of both 
international law and political expediency. [FN80] These concems are more fully addressed in Part 
IV of this Note. [FN81] By the end of January 1945, the Secretaries of War ♦843 and State and the 
Attomey General finally reached a consensus in support of a modified version of the Bemays plan. 
[FN82] In place of the conspiracy theory, they substituted Joint participation in a criminal enterprise, 
including both pre-war and domestic atrocities as well as waging aggressive war, as part of the 
enterprise. [FN83] However, they eliminated planning, preparing, and initiating aggression as 
charges as well as Bemays's plan to establish the court by international treaty. Instead, the three 
Secretaries advocated an executive agreement by the govemments of the Allied Powers because it 
would be more expeditious. [FN84] However, even after having reached this general consensus of 
policy, they were still unable to get a clear indication from President Roosevelt as to whether or not 
he endorsed their recommendations. [FN85] 

At this point, Great Britain invited the United States to send a team to London to begin Joint 
preparations for dealing with the Nazi criminals. [FN86] American representatives went to London 
and advocated in favor of a trial. The British initially responded with their plan for summary 
execution, [FN87] but displayed a willingness to negotiate. [FN88] However, this meeting was 
interrupted when on April 12, 1945, President Roosevelt died and Vice-President Truman succeeded 
him as President of the United States. 

Truman strongly endorsed the Three Secretaries Memo and appointed Supreme Court Justice 
Robert H. Jackson to head American efForts to prosecute the Axis criminals. [FN89] The British 
reaffirmed their commitment to summary execution of the major criminals, but by this time the 
French and the Soviets were supporting the idea of a trial. [FN90] Faced with vinanimous Opposition 
by the other m^or Allied Powers, the British agreed to a trial in principle, on the condition that the 
United States assimie the bürden of developing a workable plan. [FN91] Britain's acceptance of the 
plan for a trial may also have been influenced by the ^844 fact that Hitler, Mussolini, Goebbels, and 
Himmler were all known to be dead at this time. [FN92] 

4. Developing a Workable Trial Plan 

Justice Jackson aggressively assimied the bürden of forging an Allied consensus for a trial plan by 
overseeing revisions of the United States' plan. These revisions incorporated a reliance on the 
Fourth Hague Convention of 1907, [FN93] which included consideration of "the laws of humanity 
and the dictates of the public conscience"' [FN94] in defining war crimes. Jackson also involved 
Colonel Telford Taylor [FN95] in the process, who provided a nimiber of insightful contributions. 
[FN96] Taylor maintained that any decision by the Allies conceming the m^or Nazi criminals was 
essentially a political one. [FN97] A major political concem was to set a positive Standard for future 
conduct of the remaining major world powers who were implementing the trial. [FN98] By 
maintaining that international law forbade the Nazi crimes, the major world powers would be legally 
constrained from repeating similar crimes in the future. Furthermore, because the major world 
powers would be creating these international constraints, they could not credibly maintain that the 
law was unfair. 

Taylor also argued that the propriety of punishing those responsible for laimching an aggressive 
war should be beyond question. [FN99] The possibility of punishment should have been so apparent 
to the criminals that no one, except a strict formalist, could seriously raise the issue of ex post facto 
punishment. [FNIOO] After all, if one launches an aggressive war, it Stands to reason that the victims 
of the aggression will seek reparations and punishment of the aggressor under retributive or 
prospective deterrence rationales. Similarly, Taylor reasoned that individuals who violate ^845 
treaties are estopped from questioning their pxmishment, even if the punishment was not strictly 






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enumerated previously. [FNIOI] This conclusion is seif evident because those who know they are 
wrong when they act should be prepared to accept a fair punishment. Furthermore, most of the Nazi 
atrocities did violate recognized international law or the domestic law of the countries in which they 
occurred. Essentially, Taylor presented a normative argument stating that it is not outrageous to 
punish the perpetrators of such atrocities but it woxild be outrageous not to pimish them at all. 
[FN102] 

B. THE INTERNATIONAL CONFERENCE ON MILITARY TRIBUNALS, LONDON, JUNE TO 

AUGUST 
1945 

In the relatively short span of time from June until August of 1945, representatives of Great 
Britain, the Free French, the Union of Soviet Socialist Republics, and the United States negotiated, 
drafted, and signed the Treaty of London. [FN103] One of the highlights of these negotiations was 
the attempt of the participating nations, ieach with a substantially diflferent legal System, to reach an 
agreement on trial procedure. The British and American adversary Systems shared major 
similarities, namely that the parties are responsible for preparing and arguing their positions. The 
French, Soviets, and Germans, however, utilized an inquisitorial System, where the judge of the 
tribimal is responsible for investigating the issues in dispute. The parties finally agreed on a 
compromise plan, which embraced the Anglo-American concept of trial procedure, but was modified 
to include some characteristics of the Continental System. [FN104] 

In addition to procedural difFerences, Substantive law of the participating coimtries varied 
significantly as well. While Great Britain and the »846 United States shared the concept of 
conspiracy, which was the centerpiece of the American trial plan as originally formulated by 
Bemays, [FN105] the Continental Systems of France, Germany, and the Soviet Union were devoid of 
this concept. [FN106] The United States was convinced that a conspiracy Charge was necessary both 
to encompass the crimes the Nazis committed before the War and to completely discredit the Nazi 
form of govemment. Regarding the former, if a trial revealed that Nazi crimes against their own 
nationals before the War were part of a common criminal conspiracy, which included waging 
aggressive war, then these crimes could be punished. Regarding the latter, if a trial convincingly 
portrayed the entire Nazi regime as a criminal conspiracy, then the Nazi govemment as a whole 
would stand convicted as an illegal enterprise and thus be discredited in the eyes of the German 
people and the world. This in tvim would contribute to the rehabilitation of the German people and 
ensure that the new German govemment would not pose a threat to the peace and stability of Europe 
in the future. [FN107] Whether they completely agreed with this reasoning or not, the Continental 
parties finally acceded to the United States's insistence on including the Charge of conspiracy 
[FN108] 

Another controversy regarding the law to be applied at the trial was whether to include the charge 
of "Crimes Against Peace."' The controversy surrounding this Charge essentially mirrored the earlier 
internal concems within the American administration that waging aggressive war was an 
imprecedented charge. [FN109] The ramifications of this issue are explored in depth in Part IV of 
this Note. [FNllO] In the end, all of the members of the Conference in London agreed to include a 
Charge of aggression as the crime is defined in Article 6(a) of the Charter: 

CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of 
aggression, or a war in violation of international ♦847 treaties, agreements or assurances, or 
participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing . 
. [FNlll] 

The representatives were also confronted with the Soviet Union's desire to limit the crimes charged 






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to only those acts committed by the European Axis. [FN112] The Soviets had reason to fear being 
charged with similar crimes, especially Üie crime of aggressive war, if the secret protocols of their 
nonaggression agreement with Grermany became known. [FN113] In the end, a compromise was 
reached whereby the Charter used language stating that the purpose of the Tribunal was to 
prosecute crimes of the Axis, while the specific definitions of crimes within the Charter made no 
reference to any particular govemment. [FN114] Consequently, the Tribunal refused to address any 
German complaints about Allied conduct because it was outside the scope of the Tribimal's 
Jurisdiction. The compromise contained in the Charter also made possible its application in the 
future because the crimes it defined were expressed in universal language. 

The other Substantive crimes defined by the Charter were: 

WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, 
but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of 
civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or 
persons on the seas, killing of hostages, plimder of public or private property, wanton destruction 
of cities, towns, or villages, or devastation not justified by military necessity; 

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslaveeent, deportation, 
and other inhumane acts committed against any civilian population, before or during the war, or 
persecutions on political, racial, or religious grounds in execution of or in connection with any 
crime within the Jurisdiction of the Tribunal, whether or not in violation of domestic law of the 
country where perpetrated. [FN115] 

The Charter further provided that "[t]he oflficial position of defendants, whether as Heads of State 
or responsible officials in Govemment departments, shall not be considered as fi-eeing them fi-om 
responsibility *848 or mitigating pimishment."' [FN116] Further, "[t]he fact that [an individual] 
acted pursuant to [superior Orders] shall not fi'ee him fi-om responsibility, but may be considered in 
mitigation of punishment ...."' [FN117] The Charter also provided for the trying of groups and, if 
appropriate, declaring a group guilty of being a criminal Organization. [FN118] The negotiators in 
London intended that individual members of these guilty groups be subsequently tried, with the 
bürden of proof placed on the individual defendants to show why they should not be found guilty 
because of their membership in the group. [FN119] 

C. PREPARING THE CASE AGAINST THE MAJOR WAR CRIMINALS 

After the representatives of the Allied powers agreed on the Charter, they began in eamest to 
prepare for the trial. Nuremberg was selected as the site of the trial primarily because its complex of 
buildings, which included the Palace of Justice and an attached prison, was apparently the only 
adequate facility remaining in Germany due to the extensive desrruction by Allied bombing. [FN120] 
However, like so many of the decisions of the members of the Conference in London, this choice was 
not unaffected by political concems. The Soviets originally wanted the trial to take place in Berlin, 
where the four powers shared occupation duties, rather than in Nuremberg, which was within the 
AmericEin zone. [FN121] 

Political jealousy between the four powers also influenced the selecion of which individuals to 
indict for the first trial. All of the participants at the trial shared a desire to indict the most heinous 
criminals first. They also agreed that those charged should comprise a representative group of the 
entire Nazi regime and of its component parts. However, each of the participants also wanted some of 
the prisoners held in its zone of occupation included in the first and most prestigious trial. [FN122] 

The various British and American intelligence organizations operating in Germany at the time 






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aided in the preparation for trial. Although their lack of coordination with each other made 
Cooperation difficiüt, ♦849 they nonetheless were an invaluable source of evidence. They discovered 
Caches of German documents on a daily basis. The task of sifting through roughly 100,000 
documents, examining 10,000 of them, translating 4,000 into Enghsh, French, and Russian, and 
supplying copies to each prosecution and defense party was a monumental administrative and 
analytical chore. [FN123] In addition, of the millions of feet of German documentary film discovered 
by the Allies, approximately 100,000 feet of it (19 hours) was brought to Nuremberg. [FN124] These 
German documents provided a wealth of Information about the Nazi crimes and were instrumental 
in aiding the Allies' case at Nuremberg. 

The Allies encountered many other practical problems in preparing for the trial. They initially 
could not locate a System that could simultaneously translate the proceedings into four languages, 
which meant that there would be lengthy delays after every utterance as the parties awaited three 
translations. The Allies also had diflficulty securing competent and credible defense coimsel willing 
to represent the notorious criminals. However, these problems were adequately resolved, and the 
justices were swom in and the indictment read on October 18, 1945. [FN125] The Tribunal 
immediately declared a thirty-day recess in order to resolve all of the remaining impediments. 
[FN126] All of these preparations occurred against a backdrop of political urgency, for it was always 
the intention of at least the United States and Great Britain that justice be rendered as quickly as 
possible to satisfy the public and pave the way for the further rehabilitation of Europe. [FN127] 

The pressures of expediency, however, were never intended to be accommodated at the expense of a 
fair trial. Perhaps the British, more than any other party, insisted that the trial contain adequate 
procedural Protections to ensure that the defendants be afforded a fair trial. [FN128] These 
safeguards carried with them the danger that the trial woiild become a very long affair, the outcome 
of which could not be politically controUed. The accused Nazis might also take advantage of the 
procedural safeguards to propagandize from the courtroom. These risks had motivated the British 
govemment and some American policy makers to *850 take their earlier position in favor of 
summary executions. [FN129] However, if there was going to be a trial, Great Britain belle ved that 
the British public would not tolerate a sham, but woxüd insist upon a fair proceeding. [FN130] 
Indeed, all of the Allied parties were sincerely concemed that the trial be seen as legitimate and 
serve as a precedent for future generations. [FN131] 

m. THE TRIAL 

A. COUNTS ONE AND TWO 

The indictment consisted of four counts. Count One was the conspiracy Charge, which was 
prosecuted by the United States. The defendants were accused of being "leaders, Organizers, 
instigators, or accomplices in"' the crimes defined in the Charter. [FN132] Specifically, these charges 
included planning and launching aggressive war, ill treatment of civilian populations both at home 
and abroad, mistreatment of prisoners of war, extermination, enslavement and other inhumane acts. 
Each defendant found guilty of conspiracy was to be held individually responsible for the acts of all 
the co-conspirators. 

Robert Jackson presented the case for conspiracy as a comprehensive history of the Nazi 
movement, telling of the Nazis' rise to power and their perversion of the authority of govemment. He 
revealed the tactics of virulent anti-Semitic Propaganda, State terrorism in the streets, and fraud and 
deceit in foreign diplomacy. The prosecution of Crimes Against Peace, as defined in the Charter and 
prosecuted as Count Two, logically wove in and out of Jackson's presentation of Coimt One. 

Count Two, prosecuted by Great Britain, charged the defendants with direct participation "in the 






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planinng, preparation, initiation, and waging of wars of aggression, which were also wars in 
violation of international treaties, agreements, and assurances."' [FN133] Sir Hartley emphasized in 
his opening statement that the defendants acted in violation of the laws of nations and committed 
Substantive crimes, such as murder, which were punishable by any civilized nation. He fiirther 
pointed out that the accused were not mere agents carrying out the directions of a principal, although 
that alone would establish their guilt. Rather, the defendants were the ones who built up Hitler, 
made his reign of terror ♦851 possible, and helped plan and initiate the crimes that the Tribunal was 
prosecuting. Some defendants were also responsible for practicing diplomacy in bad faith by 
deceiving other nations in order to further the Nazi plans to wage aggressive war. [FN134] 

The British and Americans initially presented their evidence in the form of briefs and documents 
that they read to the court. Although a wealth of damning information was put into evidence, it did 
not adequately convey the gravity of the crimes. Consequently, on November 2, Jackson presented a 
documentary film depicting the conditions the Allies encountered when they liberated the Nazi 
concentration camps. Although this film would have more properly been presented in the prosecution 
of Crimes Against Humanity, it was shown during the prosecution of Count One. Images of 
emaciated men and women, corpses piled like cordwood with arms and legs jutting out awkwardly, 
gas Chambers and crematoria, tractors pushing the dead into mass graves, and other horrible scenes 
were projected onto the courtroom screen. The film had a devastating eflfect on all those present, 
including the defendants. [FN135] Major A.M.S. Airey Neave, a British officer and member of the 
Secretariat appointed by the Tribunal, wrote the following account: 

Scenes familiär to the present generation of television viewers, like the piles of corpses at 
Belsen, were an unheralded shock to many. Those who had survived the camps, had their 
memories reawakened. Several in the darkened courtroom were faint or sobbed quietly at the 
scenes described by a burly British lieutenant-colonel as he stood among the dead and dying of 
Belsen. 

As the lights went up, I looked at the dock. The defendants remained seated, as if tumed to 
stone. They were slow to rise when the judges filed out in disgusted silence. During the showing 
of the film, the dock, as a measiire of security, was picked out by small Spotlights. Few of the 
defendants could bear to watch the whole film. . . . [One defendant had tumed his] back to the 
screen . . . and some . . . [had] tears on their cheeks. [FN136] 

♦852 The United States and Great Britain concluded their prosecution of Coimts One and Two on 
December llth. They had presented a wide assortment of damning evidence, including meticulous 
records of the defendants' roles in several crimes. For example, the prosecution revealed that Goring 
played a major role in stirring up anti-Semitism, coercing foreign governments, planning to wage 
war, and orchestrating brutality. Dociunents indicate that he had complained that too few Jews were 
killed on Kristallnacht-a night of violence orchestrated by the Nazis on November 10-11, 1938, in 
which Jewish shops were looted, synagogues were bumed, and people were murdered. [FN137] The 
prosecution revealed minutes of meetings with Hitler that implicated the defendants Keitel and Jodl 
of intimate involvement in aiding, formulating, and orchestrating Hitler's plans for aggressive war. 
[FN138] It was also shown that Hitler's foreign ministers, von Neurath and von Ribbentrop, 
enthusiastically helped in planning the deceitful and illegal aggression. [FN139] 

The select group of defendants at Nuremberg were, for the most part, from such high levels of the 
Nazi hierarchy that their crimes were not generally limited to one particular area, such as planning 
aggressive war or conspiring to conunit crimes against hiunanity; rather, their involvement spanned 
several coimts of the indictment. Thus, the evidence both uncovered individual instances of 
culpability and wove a picture of a vast integrated plan for tyranny at home with plans for expansion 
and subjugation abroad. For example, the persecution of the Jews was carried out not only as an 



4^^ 

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expression of the racist ideology of the Nazis but also with an eye toward confiscating as much of the 
Je WS* personal wealth as possible to finance the Nazi's war needs. [FN140] 

B. COUNTS THREE AND FOUR 

The United States and Great Britain concluded the prosecution of Counts One and Two on 
December 12-14, and then proceeded to introduce Count Three (War Crimes) and Count Four (Crimes 
Against Humanity). [FN141] The French prosecution team, headed by Francoise de Menthon, and 
the Soviet team, headed by General R. A. Rudenko, jointly prosecuted these counts. In their three day 
prologue, they *853 presented dociunents depicting the racist Propaganda of the Nazis, evidence of 
mass killings and beatings, and the Nazis' plans to exterminate the Jews and other conquered 
peoples. 

When the trial resumed in January of 1946, after a two week Christmas recess, the prosecution 
presented one astoiuiding revelation after another. The diary of Hans Frank, [FN142] who had held 
several positions in the Nazi party and the German govemment, contained several damning 
admissions. [FN143] As the Govemor General of Poland, Frank presided over forced labor programs 
and the deportation of Jews to concentration camps. His diary recounted many atrocities, such as 
episodes where the Nazis beat and killed individuals without justification. [FN144] Frank's defense 
was typical of the attempts made by the other defendants. He did not deny the perpetration of the 
accused atrocities, but rather attempted to shift the blame to others. [FN145] Frank asserted that it 
was Himmler, as head of the SS, who actually controlled the terrorist police tactics used [FN146] 
and that Sauckel was responsible for the deportation of native populations into slave labor. Despite 
Frank's refusal to admit personal responsibility, the evidence against him was overwhelming, and he 
was convicted on Counts Three and Foxir. [FN147] 

On March 31, 1941, pvirsuant to Hitler's requests, Keitel issued the infamous Comissar Order, 
which commanded the army to segregate the commissar soldiers, who were members of the Soviet 
army, so that they could be liquidated. [FN148] The commissar soldiers were identifiable by an 
insignia wom on their imiforms. The Wehrmacht initially protested that these Orders violated 
international law and would invite retaliation by the enemy. [FN149] Keitel, however, refused to 
listen to any protests and demanded that the order be carried out, along with Orders calling for the 
execution of any Jews who had been taken prisoner. [FN150] The army only imperfectly carried out 
this task, and consequently the Einsatzgruppen were created and placed under the direction of 
Himmler, who also had administrative control over the S.S. and a large portion of the Nazi 
govemment. [FN151] Although the army still complained about the Commissar ♦854 Order, they 
fiilly cooperated with the Einsatzgruppen who carried it out. [FN152] 

Another notorious order issued by Keitel at Hitler's direction was the Partisan Order, [FN153] 
which authorized German occupation forces to kill fifty to one hiuidred civilians for each German 
soldier killed by a partisan. [FN154] This order was applied on a mmiber of occasions and often 
served as an excuse for executions beyond the number contemplated by the order itself. In the 
Russian city of Kiev, Field Marshall Walther von Reichenau, the German Commander of the area, 
ordered the Jewish population of the city rounded up in retaliation for the Soviet army's remote 
detonation of mines after the Germans occupied the city. Thirty-five thousand i)eople were marched 
to the ravine at Babi Yar outside of the city and executed. [FN155] 

The prosecution presented evidence regarding the concentration camps and medical experiments 
primarily as part of Counts Three and Four, respectively. The horrors of the concentration camps 
alone could fill the pages of a book. In the pre-war years of the Nazi regime, the Nazis used the 
concentration camps for detaining political prisoners and Jews. However, foUowing the outbreak of 
the war and the massive deportations of Jews from occupied territories, the camps became primarily 






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detention areas for Jews. [FN156] Begiiming in 1941, the Nazis constructed additional camps 
devoted exclusively to killing, and soon thereafter the death camps and the concentration camps 
became merged into a Single System of degradation and murder. [FN157] It was in these camps that 
millions of Jews met their death. [FN158] Many were sent directly to the *855 gas Chamber upon 
arrival at a camp. [FN159] Others survived on starvation rations and worked as slave laborers for 
the Reich. [FN160] Kthey did not die of disease, [FN161] starvation, beatings, or torture, [FN162] 
the Nazis eventually sent them to the gas Chambers as well. [FN163] 

The Nazis also organized a comprehensive System within the concentration camps where the SS 
would confiscate the Jews' property and distribute the gains to the German population. The Germans 
encouraged people to bring their personal belongings to the camps. These commodities included 
jewelry, watches, and banknotes. [FN164] After murdering their victims, the Nazis would remove 
eyeglasses, gold teeth and other dental gold, and send it to the Reichsbank. [FN165] Funk, the head 
of the Reichsbank from 1938 \mtil the end of the war, was a defendant at Nuremberg. His knowledge 
and complicity in many of the crimes at the camps was conclusively proven. [FN166] 

The trial revealed instances of horror and depravity too numerous to be recoimted in this Note with 
any substantial degree of completeness, but even a partial list of the Nazi crimes prosecuted at 
Nuremberg reveals the enormity of the crimes that occurred. The horrible crimes are in themselves 
shocking, but the cold-blooded and calculated way in which they were woven into comprehensive 
governmental planning adds another frightening dimension. Ironically, this dimension could have 
conceivably shielded many of the defendants from punishment if the Allied powers had not strictly 
specified in the Charter that acting in an official capacity as governmental functionaries did not 
relieve defendants of individual responsibility. [FN167] 

*856 The organizations indicted were instrumental in carrying out the crimes revealed at 
Nuremberg. They fit into the govemment's overall plan to organize and coordinate criminal 
activities on a massive scale. Hitler could not have carried out these heinous crimes without the aid 
of both the individuals and the organizations indicted at Nuremberg. As with individuals, these 
organizations were not excused merely because their activities were sanctioned by the State. [FN168] 
From an administrative Standpoint, it was difificult to imagine prosecuting all the members of the 
indicted organizations individually because the groups consisted of approximately four million 
individuals. [FN169] Therefore, the United States insisted that the Charter and Indictment provide 
for the prosecution of groups. [FN170] 

The defense attomeys for the organizations had no difficulty finding former members to testify on 
behalf of the groups. [FN171] These witnesses imiformly pled ignorance of any crimes, but imder 
cross examination and in light of the evidence presented, their testimony proved not credible. 
[FN172] Nevertheless, the defense objected strenuously that indicting a group was a novel and 
impermissible practice of law that deprived the individual members of a fair trial because each 
would be considered guilty by association. [FN173] 

C. THE JUDGMENT 

On August 31, 1946, after 216 days of testimony, the presiding judge, Lord Geoefrey Lawrence, 
adjoumed the trial until September 23, when the tribimal would proclaim judgment. [FN174] The 
judges disagreed on many points in their deliberations. For instance, the debate as to whether to 
include the Charge of conspiracy in Coimt One reappeared during the deliberations. 

The French member of the Tribimal, Donnedieu De Vabres, urged the Tribunal to drop Coimt One 
altogether. [FN175] He argued that, although there was substantial precedent and evidence for 
finding the defendants •857 guilty of War Crimes and Crimes Against Humanity, there was no 






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recogiütion of the Charge of conspiracy in the body of international law. [FN176] But the American 
altemate, John J. Parker, [FN177] and the British altemate, Norman Birkett, argued that the 
prosecution had sufliciently proven that the defendants had played a mgyor role in a conspiracy of 
evil. [FN178] Herbert Wechsler, an advisor to the American Tribunal member Francis Biddle, 
prepared a brief in which he argued that, although no Single conspiracy carried out all of Hitler's 
planß, there were a series of shifting and overlapping conspiracies, all with Hitler as the central 
figure, which carried out the many different crimes. [FN179] 

After much disagreement, Francis Biddle proposed a compromise to which all the judges adhered. 
Biddle proposed to apply the Charge of conspiracy only to the waging of aggressive war. [FN180] The 
Tribxmal found eight of the twenty-two defendants guilty imder this theory. Fach of these eight, with 
only one exception, were also found guilty of Crimes Against Hvimanity and War Crimes. [FN181] 
The controversy revolving around the imprecedented Charge of conspiracy was therefore moot as far 
as the fate of these defendants because all but one of them would have been convicted anyway. 

Another example of the disagreement between the judges in deliberations was the conflict and 
subsequent compromise over convicting Nazi organizations. [FN182] The Russian judges wanted to 
condemn all of the indicted organizations. [FN183] Biddle, on the other band, feit it was unjust to 
condemn any individual member without an individual trial. [FN184] All the other judges initially 
agreed to condemn at least the SS and the *858 Gestapo. [FN185] In the end, the judges imanimously 
agreed on the guilt of the Gestapo, [FN186] the SD, [FN187] the leadership corps of the Nazi party, 
[FN188] and the members of the SS who joined the party prior to the outbreak of the war. [FN189] 
However, after the judges endorsed the conspiracy theory as applied to these groups, they proceeded 
to undercut their decision by requiring the prosecution to prove personal guilt in order to hold an 
individual member of an Organization criminally liable. [FN190] 

These decisions demonstrate that the judges of the Tribimal did not adhere to any preconceived 
notion of how they should rule. In fact, of the twenty-two individual defendants, three were foimd not 
guilty on all coimts and freed. Twelve of the other nineteen individual defendants were sentenced to 
death, and the remainder were sentenced to prison terms ranging from ten years to life. [FN191] 

IV. THE LEGrriMAC Y OF THE NUREMBERG TRIALS 

An analysis of the Nuremberg Trials seems incomplete without discussing its legitimacy. The fact 
that the crimes had to be pimished was beyond dispute. Murray Bemays's and Telford Taylor's 
rationale that a trial would have more educational and political eflfect than summary executions 
[FN192] can be viewed as purely political. Thus, it may appear that Nuremberg was merely a 
political "'show trial"' meant to carry out the will of the victors. The policymakers behind the trials 
took Steps to coimter these charges. They applied law that was groimded in existing international 
law, [FN193] highlighted historical antecedents and more recent international agreements, [FN194] 
and argued that they applied law that was ♦859 completely consistent witli these precedents. 
[FN195] In Order to further bolster the legitimacy of the trials, they also integrated several 
safeguards into the Charter to ensure that the procedure was fair. [FN196] 

The legal, historical, and normative arguments supporting the legitimacy of the trials also apply to 
the reasons for vigorously applying international law, influenced by the Nuremberg trials, in 
American courtrooms. The same nationalistic, Statist objections raised in response to trying the 
Nazis are resurfacing today in American courts as support against applying international law as 
influenced by Nuremberg. These issues are addressed in Parts VI and VE of this Note. [FN197] 

A. THE "FAIR TRIAL" JUSTIFICATION 




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The desire to be fair and to allow the defendants the benefit of fair procedure permeated the entire 
atmosphere of the trials at Nuremberg. [FN198] The Charter contained several provisions 
specifically designed to ensure a fair trial. [FN199] For example, the defendants were supplied with a 
comprehensive indictment that spelled out, with particularity, the charges against them, [FN200] 
and all documents and proceedings were translated into a language that each defendant could 
understand. [FN201] The defendants were also provided with ample opportiinity to speak on their 
own behalf [FN202] and either receive the assistance of counsel or represent themselves. [FN203] 
Furthermore, each defendant was granted the right to cross-examine any witness called by the 
prosecution. [FN204] 

The judges exceeded the requirements of the Charter and dedicated themselves to making the Trial 
as evenhanded as possible. On one occasion, the prosecution grew impatient with the length of the 
trial and moved the court to prohibit the defense from reading documents into the record. Rudolf Dix, 
one of the German defense attomey s, objected that it would be the height of unfaimess to deny to the 
defense what had been ^860 granted to the prosecution. [FN205] The judges agreed with Dix and 
ruled in favor of the defense. [FN206] 

Several of the former defense counselors have since expressed their opinions that the procedures, 
and the proceedings in general, were fair. [FN207] Otto Pannenbecker, who represented defendant 
Wilhelm Frick, correctly observed that the Tribunal applied a System containing more features of 
Anglo-American jurisprudence than the Continental System, and he opined that "[a]s to the 
application of the Anglo-Saxon System at Nuremberg, there was no disadvantage for those accused 
before the Tribunal."' [FN208] He further observed that "the sentence against the defendant Frick, 
whom I represented, was well justified on grovinds of evidence."' [FN209] Frick was sentenced to 
death by hanging. 

B. THE LEGAL JUSTIFICATION 



Providing the vanquished defendants a fair judicial proceeding is evidence of the legitimacy of the 
proceedings, but the more basic question regarding the trial's legitimacy includes the legal and 
moral justifications for holding a trial in the first place. The controversy surroiuiding the legitimacy 
of the Nuremberg Trials involves overlapping issues. First, commentators argue that the Tribunal 
applied ex post facto law because the actions of the Germans were not crimes at the time they were 
committed, but were only defined as criminal by the Victors after the war ended. Second, and 
logically foUowing from the first, commentators argue that the victors had no moral or legal right to 
try the vanquished, and consequently the victors merely exerted arbitrary power over them. 

1. Historical Justification for Coimt Two 

The argument that the Allies applied ex post facto law has superficial appeal, but it falls on closer 
scrutiny. Coimt Two is perhaps the most diflficult aspect of the trial to justify as existing within 
international law at the time the acts were committed. Crimes Against Peace, including planning 
and launching a war, were generally considered to be within a sovereign's legitimate powers by the 
international legal conunvmity at *861 the time of the Nuremberg Trial. [FN210] However, as 
Justice Jackson noted in his Report to the President, June 6, 1945, [FN211] this nineteenth-century 
doctrine itself was a departure from earlier international legal principles as taught by Hugo Grotius. 
[FN212] Grotius distinguished between just and unjust wars; while the former is permissible, the 
latter is not. [FN213] Subsequently, this doctrine evolved into the proposition that aggressive wars 
were ui\just, and defensive wars were just. [FN214] On either count, the Nazi aggressions were 
uiyustified. [FN215] This inclusion of moral principles in international law steadily eroded as 
doctrines that supported the rights of nation states to act freely in pursuing their self-interest gained 
popularity in the nineteenth Century. [FN216] 






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An vindercurrent of Opposition to this Statist view of international law persisted throughout the 
nineteenth Century [FN217] and gained momentum at the tum of the twentieth Century. Beginning 
in 1899, several nations entered into binding international agreements that rejected the notion of the 
absolute sovereignty of a nation state. The Judgment of the Nuremberg Tribunal acknowledged its 
reliance on these agreements. Among these agreements were the Hague Conventions of 1899 and 
1907, which limited a state's right to launch a war. In 1899 the signatories agreed: "[blefore an 
appeal to arms . . . to have recoiu*se, as far as circumstances allow, to the good oflfices or mediation of 
one or more firiendly powers."' [FN218] Germany executed treaties of mutual guarantee with 
Belgium, France, Great Britain, and Italy. The treaties were signed at Locamo, Switzerland in 1925 
and renounced any and all plans for territorial expansion. [FN219] Germany, Poland, France, Great 
Britain, the United States, and several other countries signed the Kellogg-Briand *862 Pact in 1928, 
explicitly outlawing aggressive war and the seizure of territories. [FN220] In addition, the Versailles 
Treaty expressly required demilitarization of the Rhineland, respect for the independence of 
Czechoslovakia and Austria, and Germany 's renunciation of any rights in the Free City of Danzig. 
[FN221] All of these agreements were violated by the Germans. [FN222] Although Germany could 
Claim that it agreed to the Versailles Treaty imder duress, the same excuse could not apply to the 
other agreements. 

Thus, Nuremberg continued the twentieth-century trend of rejecting the nineteenth-century 
nationalist conception of international law in favor of the emerging doctrine of limited sovereignty, 
which had its antecedents in the classical doctrines of international law. After the Tribunal decided 
to adhere to this emerging doctrine, and in light of the extensive and duplicitous violations of 
international agreements committed by Germany, [FN223] the Tribunal had no trouble deciding that 
Count Two was both justified and adequately proven. 

However, this historical perspective does not inevitably lead one to conclude that the Tribunal at 
Nuremberg was acting within the legitimate authority of international law. During World War n, if 
a nation violated an international agreement, the other nations to the treaty could justifiably 
disregard it with respect to the breaching party. They were not, however, necessarily entitled to try 
the ofificials of the breaching nation as common criminals. [FN224] 

There is, however, historical precedent that does support these actions. English and American 
common law have historically prosecuted breaches of international law as common law crimes. In 
general, judges in a common law Jurisdiction draw upon "settled law [and] ideas . . . of what is moral, 
right, just; of what will further sound public policy, in the light of the customs and traditions"' of the 
Community to detemiine if the facts of the case before them should be classified as a crime. [FN225] 
Furthermore, sovereigns as well as individuals should be expected to *863 answer to international 
law. As United States Supreme Court Chief Justice John Jay, sitting as a circuit judge, said in 
Henfield's Case: [FN226] "[I]f it appears that [agents of a sovereign breached international law] by 
Order of the sovereign, such a proceeding in a foreign sovereign is justly considered as an iiyury, and 
as a sufficient cause for declaring war against him, unless he condescends to malte suitable 
reparation."' [FN227] La Fave and Scott point out that judges in medieval England naturally 
created crimes out of general principles because there was no regularly meeting legislature. [FN228] 
Although Great Britain and the United States now have regularly meeting legislatures. Justice 
Jackson explained: 



International law . . . is not capable of development by legislation for there is no continuously 
sitting international legislature. . . . It grows, as did the common-law, through decisions reached 
from time to time in adapting settled principles to new situations. Hence, I am not disturbed by 
the lack of precedent for the crime of launching aggressive war. [FN229] 

And as expressed in the American Memorandum of April 30, 1945: 






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The very breadth of the offense, however, is not in itself an argument against judicial action. . . 
. The application of this law may be novel because the scope of the Nazi activity has been broad 
and ruthless without precedent. . . . The basic principles to be applied, however, are not novel . . . 
. International law must develop to meet the needs of the times just as the common law has 
grown, not by envinciating new principles but by adapting old ones. . . . The law should be supple 
enough to cope with the totality of the offense .... [FN230] 

The Tribimal explicitly adopted this approach. [FN231] 

2. Justifications for Counts Three and Four 

Nineteenth-century American cases establish that military personnel have a duty to disobey illegal 
Orders; if they do not, they may be held liable in a court of law for the damage that they cause. 
[FN232] Chief Justice Taney stated in Mitchell v. Harmony: [FN233] "[I]t can never be maintained 
♦864 that a military officer can justify himself for doing an unlawfiil act, by producing the order of 
his superior. The order may palliate, but it cannot justify."' The prosecution of Henry Wirz, the 
Confederate Commandant of the prisoner of war camp at Andersonville during the Civil War, was 
consistent with these earlier cases. [FN234] Wirz treated the prisoners at Andersonville deplorably. 
The camp personnel maintained the premises in an unsanitary condition and provided the prisoners 
with inadequate medical treatment and insufficient food. [FN235] Wirz even refused offers of food 
from nearby farmers who leamed of the desperate Situation of the prisoners. [FN236] Consequently, 
several hundred prisoners died each week. [FN237] A total of approximately fourteen thousand 
Union soldiers met their death at this camp. [FN238] Although Wirz produced evidence at his trial 
that he foUowed the Orders of his superior, Gfeneral John H. Winder, he nonetheless was found guilty 
of both conspiracy and "murder 'in violation of the laws and customs of custom of war'."' [FN239] 

These cases do not suggest that a soldier should question the legality of every order. Such a policy 
would jeopardize the efficiency and discipline that are often essential in military situations. 
Therefore, United States courts allow a presumption in military trials in favor of the lawfulness of 
military Orders. At the same time, however, a soldier is never obliged to obey an order that is 
palpably illegal on its face. [FN240] 

Prosecuting members of the military for foUowing an illegal order is not an xmiquely American 
tradition. In fact, the German Military Penal Code of 1872, Article 47, provides: 

If execution of an order given in [the] line of duty violates a Statute of the penal code, the 
superior giving the order is alone responsible. However, the subordinate obeying the order is 
liable to punishment as an accomplice if . . . he knew that the order involved an act the 
commission of which constituted a civil or military crime or offense. [FN241] *865 In other 
words, a subordinate who knowingly foUows an illegal order is also a culpable actor. 

After World War I, the Allies agreed to establish an international military tribunal to try the 
German leaders for war crimes. [FN242] However, imwilling to use force to overcome German 
intransigence, the Allies agreed to allow the accused to be tried in the German courts. [FN243] But 
the Germans often declined to hold the trials, found the defendants not guilty, meted out light 
sentences, or allowed the convicted to escape from prison. [FN244] In light of this history, it is not 
surprising that the war crimes of a defeated nation would henceforth be tried in the co\irts of the 
Victor. Furthermore, it was not a whoUy novel idea to hold agents of foreign govemments criminally 
liable for violating international law. [FN245] As Justice Jay said in Henfield's Case [FN246] 
regarding the practice of recruiting individuals for service in a foreign army in violation of 
international law: 






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Foreign recruiters are hanged immediately, and very justly, as it is not to be presumed, that 
their sovereign ordered them to commit the crime; and if he did, they ought not to have obeyed 
his Order, their sovereign having no right to command what is contrary to the law of nature. 

[FN247] 

Another issue that needs to be addressed is whether it matters that the defendants at the Trial of 
the Mgjor War Criminals at Nuremberg were not soldiers who had foUowed palpably illegal Orders, 
but rather held positions of high authority. The question then becomes whether precedent exists for 
holding these individuals liable, or whether they are shielded by virtue of their oflfice. The Act of 
State Doctrine provides that "the courts of one coimtry will not sit in judgment on the acts of the 
govemment of another, done within its own territory."' [FN248] However, this is American judge- 
made law and, therefore, not necessarily accepted in international law. Notwithstanding this 
admonition, the Nuremberg Charter arguably did not violate this doctrine because it did not 
prosecute crimes that occurred within the intemationally recognized borders of Germany, except as 
they were connected to a conspiracy that involved *866 crimes taking place outside of Germany. 
[FN249] Though the Nazis committed reprehensible acts of repression and murder within the pre-war 
borders of Germany, their most shocking crimes, such as the death camps, took place outside of 
Germany. Furthermore, one may reason that if a soldier is criminally liable for foUowing an illegal 
Order, then those who issue the Orders or actually participate in formulating the policy that gives rise 
to the Orders are equally culpable. 

It is therefore difiicult to imderstand how someone familiär with the workings of the Tribimal, the 
provisions of the Charter, and the actual crimes committed by the defendants can seriously claim 
that their prosecution was ex post facto. As many American policymakers as well as the Tribunal 
itself declared, most of the Nazi crimes violated the criminal law of all civilized countries in the 
World. [FN250] The reader need only review the litany of atrocities reported earlier in this Note to 
appreciate this fact. [FN251] 

3. The Moral Justification and Prospectivity 

Apart from the legal and historical justifications for trying the Nazi criminals, there is the purely 
moral one. This argument, offered by Telford Taylor and discussed in Part 11 of this Note, [FN252] 
simply States that it would not be outrageous to prosecute the Nazis for the crimes they have *867 
committed; rather, it would be outrageous not to pimish them. [FN253] As Donnedieu de Vabres, the 
French judge, exhorted his brethren during their deliberations, "[w]hat are we here for if not to put 
morals into international law?" [FN254] Justice Robert H. Jackson expressed that same sentiment, 
in his Report to the President. [FN255] The French prosecutor Francois de Menthon eloquently urged 
the members of the Tribunal to make their judgment "one of the foundations . . . to which nations 
aspire on the morrow of this frightful torment. The need for justice of the martyred peoples will 
[then] be satisfied and their sufiferings will not have been useless to the progress of mankind."' 
[FN256] I will explore this prospective effect of Nuremberg in Part V of this Note. [FN257] 

V. MAJOR PRINCIPLES THAT EMERGED FROM 

NUREMBERG AND HOW THEY HAVE BEEN 

mCORPORATED INTO THE BODY OF 



INTERNATIONAL LAW 

The foregoing analysis establishes a soimd legal basis for holding the Nazi criminals subject to 
criminal prosecution by the Allies. However, the law of the Charter and the manner in which the 






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judges applied it was in Opposition to the general nationalistic, statist, and positivist philosophies 
generally ascendant in the nineteenth Century. This does not mean that the trial was illegitimate, 
and to denigrate the trial as "victor's justice'" evidences an ignorance of the legal issues involved. 
Nuremberg reinvigorated international law with principles-principles such as holding unjust wars 
illegal. This retum to fundamental principles was both a retum to ideas within the body of 
international law and a Signal for its fiiture course. That Nviremberg should have this prospective 
efifect was an important goal ofthose responsible for the Trial. [FN258] 

♦868 A. THE NUREMBERG PRINCIPLES 



The significance of Nuremberg is so great that it is difiicult to come up with a short list of major 
principles. Many major principles emerged from Nuremberg due to the complexity of the Nazi crimes 
and the novel institution the Allies developed to cope with them. [FN259] First and foremost is the 
proposition that international law should be applied toward the goal of achieving justice in line with 
morality. This concept is not hopelessly relativistic, as a strict formalist might suppose, but has 
evolved into a workable Standard that includes intemationally recognized norms of conduct as 
preemptory to any treaty or agreement in contravention of it. This concept is identified as jus cogens 
[FN260] and is now embedded in international law. [FN261] As defined in the Vienna Convention, 
the jus cogens doctrine holds that "[a] treaty is void if . . . it conflicts with . . . a norm accepted and 
recognized by the international Community of States as a whole . . . from which no derogation is 
permitted."' [FN262] Several human rights norms are accepted as jus cogens. [FN263] 

♦869 A companion concept holds that international law should take into accoxint the rights of 
individuals. [FN264] These rights were not generally accepted as a part of international law 
immediately prior to Niu-emberg. At that time, international law dealt with the rights and duties of 
States and applied only to interactions and conflicts among states. [FN265] There is, however, 
evidence that individual rights were a concem of international law in the eighteenth Century, 
[FN266] but this interest faded in the nineteenth and twentieth centuries as the statist concept of 
international law gained popularity. Nuremberg revived this commitment to protect individual 
rights. Once again, it was primarily normative concems that reinfused this concept into 
international law. Individuais sufifered horribly at the hands of an allen govemment, and the Allies 
were resolved to include these crimes in the Tribunal's Jurisdiction. 

In the same manner that the rights of individuals would henceforth be a concem of international 
law, the conduct of individuals under the color of oflficial State action would no longer be immune 
from the reach of international law. The Charter and the Tribunal made it exceedingly clear that 
individuals could be held criminally responsible for committing specified crimes that deserve the 
abhorrence of all civilized peoples. [FN267] Similar to the other principles of Nuremberg, this one 
had its antecedents in the eighteenth Century, but was largely ignored until Nuremberg. However, 
the concept of holding individuals responsible for some transgressions of international law was 
actively and continuously employed throughout modern history. [FN268] 

Closely related to this principle is the explicit recognition that a nation's sovereignty is limited by 
the demands of international law. As discussed earlier, a state no longer possesses the sovereign 
right to plan and launch an aggressive war, and the sovereign itself would be held accountable for 
transgressions against specified ofFenses. [FN269] Because of the very nature of these acts, their 
Identification as ofTenses added morality and hvmianity to the application of international law. It is 
also fair to say that anyone who conunits one of these ofFenses will be subject to universal 
Jurisdiction. That is, the oflfender will be regarded as "an ^870 enemy of all mankind,"' hostis 
humani generis, and subject to the Jurisdiction of the capturing sovereign. [FN270] 

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of Nuremberg. This doctrine developed in cases against leading German industrialists. The 
indußtrialißts were guilty of willingly cooperating with the Nazis and exploiting the slave labor 
programs that were instituted by the Nazis. The Alhes intended for these private Citizens to be 
represented by Gustav Krupp at the Trial of the Major War Criminals, [FN271] but due to poor 
health Krupp was unable to stand trial. [FN272] Therefore, this doctrine was not fully defined luitil 
the judgment of The Flick Gase prosecuted under Control Coimcil Law No. 10 which held: 
"'International law, as such, binds every Citizen just as does ordinary municipal law. Acts adjudged 
criminal when done by an officer of the govemment arc criminal also when done by a private 
individual."' [FN273] In The Justice Gase, the tribunal promoted these same principles by holding 
that Citizens, like soldiers, have a duty to disobey illegal domestic Orders when the Orders conflict 
with international law. [FN274] This infiision of morals and concem for individual rights into 
international law launched the modern doctrine of International Human Rights Law. [FN275] 

B. PROGENY 

The Institution of The United Nations (the "U.N."') was formed contemporaneously with the 
negotiations that resulted in the Nuremberg *871 Gharter. The major actors who created the U.N. 
were the United States, Great Britain, France, and the Soviet Union. In fact, the United Nations 
Gharter and the Niu-emberg Gharter are both directly derived from the Moscow Declaration. [FN276] 
Some of the same United States representatives who negotiated provisions of the Nuremberg Gharter 
also helped draft the United Nations Gharter. [FN277] The end result was that several of the 
principles contained in the Nuremberg Gharter were also built into the United Nations Gharter ("the 
U.N. Gharter"'). 

For example, the U.N. Gharter provides that the United Nations shall "promot [e] and encourag[e] 
respect for human rights and for fundamental freedoms for all without distinction as to race, sex, 
language, or religion."' [FN278] This corresponds to the Nuremberg Charter's prohibition of 
"persecutions on political, racial, or religious grounds."' [FN279] The U.N. Gharter also states that 
"[a]ll Members shall refrain in their international relations from the threat or use of force against 
the territorial integrity or political independence of any state."' [FN280] This language incorporates 
the Nuremberg Gharter's prohibition of Grimes Against Peace, Gount Two of the indictment, and 
reflects the sentiment that prospectively there must be no doubt that planning and launching an 
aggressive war will be considered a fundamental breach of the law of nations. Furthermore, the 
United Nations General Assembly endorsed the Niiremberg Gharter and the proceedings of the 
Nuremberg Tribunal by unanimous vote. [FN281] Subsequently, the United Nations passed the 
Universal Declaration of Human Rights, which resolved: 

Whereas disregard and contempt for human rights have resulted in barbarous acts which have 
outraged the conscience of mankind, and the advent of a world in which himian beings shall 
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the 
highest aspiration of the common people .... 

Whereas the peoples of the United Nations have . . . reaffirmed their faith in fundamental 
human rights, [and] in the dignity and worth of the human person .... 

♦872 [T]herefore, The General Assembly Proclaims ... All human beings are bom free and 
equal in dignity and rights .... Everyone is entitled to all the rights and freedoms set forth in 
this Declaration [FN282] 

The Declaration went on to detail several human rights to which all people are entitled. These rights 
include "the right to life, liberty and security of person,"' freedom from slavery, and freedom from 
degrading treatment and tortiu-e. [FN283] Many of these rights seemed to be designed specifically as 



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a reaction to the Nazi horrors, granting individuals the right to be free from such acts of State terror. 
By these acts, the U.N. gave an explicit signal to the world that the Nuremberg principles would 
play a vital role in international law. 

The United Nations has continued to promulgate humanitarian resolutions that fiirther elaborate 
the doctrines applied at Nuremberg. [FN284] Many of these instruments directly guarantee rights to 
the individual as opposed to a political body. The U.N. has helped to establish respect for the basic 
rights of the individual as a part of customary international law through these resolutions. As 
discussed below, this is significant in determining the weight courtrooms around the world, including 
those in the United States, should accord the Nuremberg principles in the application of 
international law. [FN285] 

C. THE NUREMBERG PRINCIPLES IN CUSTOMARY 

INTERNATIONAL LAW 

To fully imderstand how the Nuremberg principles affect international law, it is necessary to 
explore how one determines what is and what is not a part of international law. The Statute of the 
International Court of Justice ("International Court*") is a widely respected summary of the sources 
of international law, [FN286] and its Article 38(1) emmierates the foUowing: 

*873 (a) international Conventions . . . establishing rules expressly recognized by the contesting 
States; (b) international custom, as evidence of a general practice accepted as law; (c) the general 
principles of law recognized by civilized nations; (d) . . . judicial decisions and the teachings of the 
most highly qualified publicists of the various nations, as subsidiary means for the determination 
ofrulesof [international] law. [FN287] 

The Nuremberg principles may qualify as accepted international law on all counts. However, within 
the context of widespread acceptance in United Nations' instruments, they are established under (a) 
and (c) above. 

The United States Supreme Coiui has attributed a similar importance to customary international 
law. [FN288] In United States v. Smith, [FN289] which is in agreement with the International Court 
the U.S. Supreme Court held that the "law of nations . . . may be ascertained by Consulting the works 
of jurists . . . ; or by the general usage and practice of nations; or by judicial decisions recognizing and 
enforcing that law."' [FN290] The Nuremberg principles are also specifically endorsed by highly 
qualified publicists a fact which, according to the International Court, also incorporates them into 
the body of international law. 

The U.N. is not the only forum that enacted international instruments that reflect concem for the 
Nuremberg principles (specifically-intemational protection of individual himian rights). The 
European Convention for the Protection of Hirnian Rights and Fundamental Freedoms, [FN291] 
which created the European Court of Human Rights, and the American Convention on Human 
Rights, [FN292] which created the inter-American Court, further evidence the pervasiveness with 
which the Nuremberg principles have influenced international law. As the Nuremberg principles 
thus are incorporated into other instruments, they begin to affect broader areas of international law. 

The European Covirt has achieved great success in adjudicating disputes between individuals and 
States where individuals allege that states have violated their himian rights. [FN293] Although the 
inter-American court *874 has been less eflfective, it has still eryoyed notable successes. For example, 
one of the court's rulings caused Guatemala to abolish its death penalty for minor crimes related to 
political oflFenses. [FN294] The inter-American court might be more successful if the United States 



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participated. Although President Carter signed the treaty in 1979, the Reagan and Bush 
administrations have done nothing to obtain Congressional ratification. [FN295] 

These examples demonstrate that nations can cooperate to enforce international human rights as 
envisioned at Nuremberg. European countries in general, and Germany in particular, have 
subordinated their domestic law to the general rules of international law. The Constitution of the 
Federal Republic of Germany specifically provides that international law shall be supreme over 
domestic law. [FN296] This new respect for international law is a direct outgrowth of the Nazi crimes 
and the corrective acts taken at Nuremberg in the name of international law. [FN297] 

As the Nuremberg principles have become part of the fabric of international law, they have 
contributed to the Promulgation of Instruments that endorse himian rights and call for respect of the 
individual. Nuremberg's influence is clear in these Instruments, even if it is not specifically referred 
to. For instance, in December of 1984 the U.N. General Assembly adopted the United Nations 
Convention Against Torture. [FN298] This Convention uses language taken directly from the 
Nuremberg Charter to exclude "foUowing superior Orders*" as a defense for tortiu-e. Although the 
treaty does not explicitly refer to Nuremberg, it does promote the international law of human rights 
conceived at Nuremberg. 

The Nuremberg trials eludicated the tenets of humane warfare and treatment of prisoners of war. 
These tenets existed earlier, largely in the Hague Convention of 1907 [FN299] and the Geneva 
Convention of 1929, [FN300] and were further endorsed and defined at the Geneva Convention of 
♦875 1949. [FN301] The Promulgation of Protocols I and n of the Geneva Convention in 1977 once 
again aflfirmed and expanded upon these tenets. [FN302] 

These Conventions evidence that virtually all nations recognize that the Nuremberg principles are 
a vital part of international law today. [FN303] Accordingly, modern international law should be 
applied in harmony with them. Modem international law has put the nations and peoples of the 
World on notice that individuals can use these principles to prosecute human rights violations no 
matter where they occur in the world. Thus, Nuremberg has been established as a legal precedent in 
international law and, consequently, has reinvigorated international law with moral principles. 
What remains unfulfilled is the judicial duty to properly apply the Nuremberg precedent and its 
progeny wherever they are relevant. 

VI. INTERNATIONAL LAW IS BINDING IN AMERICAN COURTROOMS 

In evaluating how the Nuremberg principles apply in American courtrooms, it is necessary to 
establish that international law is a binding source of law. In fact, several judicial decisions have 
explicitly acknowledged the binding force of international law in the United States. [FN304] 
However some judicial opinions fail to give international law the füll effect that it deserves. [FN305] 

A. EARLY HISTORY OF THE UNITED STATES 

Our Founding Fathers, the Framers of the Constitution, believed in the doctrine of natural law. 
That is, they believed in a higher law containing fundamental rights that no govemment or 
individual has the right to violate. [FN306] They believed that this higher law included the law of 
*876 nations. [FN307] This belief in a natural fundamental law was supported by European 
Enlightenment philosophy and English common law. [FN308] For example, John Locke, who greatly 
influenced eighteenth-century American political thought, believed that the legislature must 
conform to the higher, unwritten law of nature in order to enact a valid law. [FN309] The English 
judges of the seventeenth and eighteenth centuries often referred to common law as stemming from 
natiu-al law, a sentiment Lord Coke expressed in Calvin's Case: [FN310] "[The] law of nature is part 






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of the laws of England . . . the law of nature was before any judicial or municipal law in the world . . 
. [and] the law of nature is immutable and cannot be changed."' [FN311] 

English jurisprudence in this period also linked common law to natural law and the law of nations. 
Englißh judges held that "the law of nations was a part of natural law and thus was a part of the 
common law."' [FN312] Therefore, given the Framers' philosophical and legal imderpinnings one 
can surmise that they intended natural law and international law to be an unwritten part of the 
United States Constitution. The fact that the common law is a part of the Constitution cannot be 
seriously doubted. As Justice Story said, "that the Constitution and laws of the United States are 
predicated upon the existence of the common law . . . has not . . . been denied by any person who has 
maturely weighed the subject. . . ."' [FN313] He then listed several examples of Constitutional 
provisions that are nonsensical unless one assumes that the common law is included within the 
Constitution. [FN314] 

*877 It is also undeniable that the common law in tum includes international law, or the law of 
nations as it was referred to then. This is made clear by the fact that England prosecuted infractions 
of the law of nations as common-law crimes. [FN315] This also indicates that natural law includes 
international law because it was only natiu-al law that gave rise to common-law crimes. [FN316] 
Again, in United States v. Smith, [FN317] Justice Story stated the foUowing about the common law: 
"[I]n its most comprehensive sense . . . the law of nations itself is a part of the common law; since all 
ofifenses against the law of nations are pimishable by the criminal jurisprudence of England."' 
[FN318] If the Constitution includes the common law, and the common law includes the law of 
nations, then the Constitution must include the law of nations. 

The explicit interweaving of international law in the Constitution [FN319] further Supports this 
argument. [FN320] In fact, the Framers believed that one of the chief failings of the Articles of 
Confederation was "that they [the Articles of Confederation] could not cause infractions of treaties or 
of the law of nations, to be pimished."' [FN321] Furthermore, the state ratification debates 
reiterated that rights guaranteed by the law of nations could not be abridged by the Constitution or 
laws made pursuant to it. [FN322] Also, the writings of John Jay and Alexander Hamilton in The 
Federalist Papers support the notion that the Framers intended the law of nations to limit the power 
of the federal govemment. [FN323] 

The Vision of the Foimding Fathers is consistent with the vision of international law that has 
emerged in the post- World War n era as inspired by the Nuremberg trials. The main similarity is 
that both visions recognize that international law embraces the core fundamental values that bind 
all people of the world together as human beings. These fundamental principles may be ascertained 
today in the same manner prescribed by the Enlightenment and English common-law traditions: by 
examining the body of international law informed by the light of reason *878 and experience. In this 
manner, the International Tribiuial at Nuremberg applied international law and began a movement 
that continues today to reinvigorate international law with fundamental values. To the extent that 
these fundamental values are a part of international law, they are as much a part of the law of the 
land in the United States as is the Constitution itself. [FN324] 

B. THE U.S. CONSTITUTION 

The Framers regarded international law so highly that they incorporated it into the text of the 
Constitution. They insured that international agreements would be part of the supreme law of the 
land. [FN325] Article VI, clause 2 states: "[A]ll Treaties made, or which shall be made, under the 
Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State 
shall be boimd thereby, any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding."' [FN326] Thus it has been held that treaties-instruments of international law- 



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stand together with the Constitution and lawfully enacted Congressional legislation as the supreme 
lawoftheland. [FN327] 

The Framers' intentions are fiirther evidenced by several specific references to international law 
contained in the Constitution. The Constitution vests the power to conduct foreign affairs in the 
President and Congress by reference to international law. 

The presidential treaty power is enumerated in article ü, section 2, clause 2, whereby the 
President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, 
provided two thirds of the Senators present concur ...."' [FN328] The President also may enter into 
binding agreements with foreign nations without complying with the formalities required by this 
clause. [FN329] The Nuremberg Charter serves as a good example of this type of agreement. 

The föderal courts have been specifically empowered to hear cases involving treaties. Article HI, 
section 2, clause 1 specifies that: "The judicial Power shall extend to all Cases, in Law and Equity, 
arising under •879 this Constitution, the Laws of the United States, and Treaties made, or which 
shall be made, under their Authority ...."' [FN330] The judiciary does in fact have the exclusive 
right to Interpret international agreements. [FN331] Federal courts are the proper forum for 
determining the rights granted luider a treaty and the federal coxirts also have the responsibility to 
apply treaties as domestic law. [FN332] 

The courts generally accept that federal Statutes may be superceded by treaties and vice versa. 
[FN333] Some authorities hold that executive agreements may not similarly supercede legislation, 
but this question remains unsettled. [FN334] Unratified treaties and executive agreements can also 
serve as evidence of customary international law. [FN335] Furthermore, article I, section 8, clause 10 
States: "The Congress shall have Power . . . To define and punish Piracies and Felonies committed on 
the high Seas, and Offences against the Law of Nations."' [FN336] Thus, international law *880 
empowers Congress to enact legislation that defines and pimishes crimes in a manner eqvdvalent to 
that provided by the powers specifically enumerated in the Constitution. [FN337] For example, in Li 
re Yamashita, the Supreme Court held that Congress could create a military commission to try and 
punish Japanese war criminals luider authority of this clause because of the law of war encompassing 
such actions within the law of nations. This authorization efFectively makes international law an 
unwritten part of the Constitution. 

Taken together, these clauses of the U.S. Constitution, and their Interpretation as supported by the 
cited cases, establish that international law reflected in treaties and executive agreements can and 
should be binding in coiutrooms in the United States. Furthermore, this conclusion is consistent with 
the philosophical underpinnings of the Framers. 

Li light of the great significance that the Framers attached to international law, [FN338] it is 
appropriate that the courts also held that customary international law has a binding legal efFect. The 
Supreme Coiul; unequivocally accepted this precept in The Paquete Habana: [FN339] 

Litemational law is part of our law, and must be ascertained and administered by the courts of 
justice of appropriate Jurisdiction, as often as questions of right depending upon it are duly 
presented for their determination. For this purpose, where there is no treaty, and no Controlling 
executive or legislative act or judicial decision, resort must be had to the customs and usages of 
civilized nations .... [FN340] 

Thus, customary international law creates federal common law when appropriately applied. [FN341] 

C. SUBSEQUENT DEVELOPMENTS 






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Li the late eighteenth and throughout the nineteenth Century, the paramount position of 
international law in American courts was questioned. During this period, the rise of legal positivism 
and Statist ideas of •881 absolute sovereignty exercised significant influence both here and abroad. 
As a result, some federal court decisions diverged from the sound Constitutional principles 
elaborated above. Other decisions, however, remained consistent with this original spirit. [FN342] 
For instance, in The Amiable Isabella [FN343] the Supreme Court held that the "obligations of the 
[Spanish] treaty [of 1795] could not be changed or varied but by the same formalities with which they 
were introduced ...."' [FN344] According to this view, Congressional legislation is invalid when it 
irreconcilably conflicts with a treaty. [FN345] This reasoning is consistent with the Framers' intent 
because the Framers believed the law of nations to be a component of natural law, rendering 
conflicting legislation invalid. [FN346] Maritime and admiralty cases also consistently applied the 
law of nations throughout the nineteenth Century, and often based their decisions on "the natural 
law of nations"' as opposed to "the positive law of nations."' [FN347] 

On the other band, a clear example of the court's divergence from the Framers' great respect for 
international law is Taylor v. Morton. [FN348] In Taylor, Justice Curtis, sitting as a circuit judge, 
held that Congress could pass legislation in derogation of a treaty without incurring any liability for 
the United States. [FN349] Curtis improperly reasoned that to hold otherwise would be to surrender 
sovereignty and impermissibly weaken the nation's ability to run its own affairs. [FN350] In fact, 
however, international law itself provides that if new developments make a party's adherence to a 
treaty disastrous, then the treaty is no longer binding. [FN351] Change of material conditions and 
impossibility also afford grounds for rescinding a treaty. Such misunderstandings devalued 
international law *882 worldwide and facilitated the rise of nationalism and absolute sovereignty 
doctrines. [FN352] Subsequent federal coiirts have followed Curtis's faulty reasoning in Taylor and 
have compoimded this misunderstanding of international law. [FN353] 

Similarly, in the formative years of the United States, there was no question but that 
transgressions of international law created federal common-law crimes. In the nineteenth Century, 
however, this tenet was superseded by the positivist notion that there could be no crime without a 
Statute. [FN354] As evidenced by the case of Miller v. United States, [FN355] tension persisted 
throughout the nineteenth Century between the Framers' view and the ascendant nationalistic view. 
Where the Taylor court had held that Congress could legislate in derrogation of international law, 
the Miller mgjority made a point of harmonizing Congressional legislation with international law in 
Order to uphold the legislation. [FN356] Justice Fields' dissent was explicit in finding that the 
exercise of the war powers by the federal govemment is regulated by the law of nations. [FN357] 

Further evidence of the continued vitality of the Framers' viewpoint in the face of ascendant Statist 
doctrine is foimd in the opinions of Attomey General William Wirt in 1822 [FN358] and of Attomey 
General James Speed in 1865. [FN359] Both believed that the President was bound by international 
law and obliged to adhere to the rules of warfare as recognized by the law of nations. [FN360] 

Another example of the divergence from the Framers' high regard for international law concems 
individual rights. The Framers accepted •883 the idea that an individual has rights under the law of 
nations and can bring suit for a transgression against them. [FN361] By contrast, most commentators 
in the latter part of the nineteenth and early twentieth centuries considered only nations to have 
rights under international law. These rights extended to the individual only in so far as the 
individual's State secured them. [FN362] 

2. The Effect of Nuremberg 






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If the Courts in the nineteenth Century generally denied that fundamental principles and individual 
rights were a part of international law, Nuremberg signalled a retum to these principles. The Trial 
at Nxiremberg restored the principles of individual rights and fundamental norms of conduct into 
international law. [FN363] The horror of the Nazi Holocaust impressed upon the nations conducting 
the trials that universal moral principles must be a part of international law. It is especially 
incumbent upon the United States, given its leading role in establishing and participating in the 
Tribunal at Niu-emberg, to incorporate this aspect of international law into its domestic law. 
Moreover, our Constitution and the history of its creation also mandate such an incorporation. 
[FN364] 

Both the doctrine of jus cogens [FN365] and the resurgence of universal Jurisdiction [FN366] are 
direct outgrowths of the Trial at Nuremberg and reflect the idea that fundamental rights exist in 
international law, which may never be transgressed. Today, the courts deduce these rights by 
examining and interpreting international law. [FN367] Jus cogens is defined by the Vienna 
Convention on the Law of Treaties [FN368] as "a norm accepted and recognized by the international 
Community of states as a whole as a norm from which no derogation is permitted and which can be 
modified only by a subsequent norm of general international law having the same ^884 character."' 
[FN369] The Vienna Convention does not specifically name what peremptory norms are recognized, 
but rather leaves these definitions open to Interpretation. However, the Vienna Convention does 
make clear that a treaty in conflict with a peremptory norm is void ab initio. [FN370] Similarly, a 
valid treaty will become void if it subsequently conflicts with a jus cogens norm. [FN371] The 
Restatement (Third) of the Foreign Relations Law of the United States adopts the Vienna 
Convention's Interpretation of jus cogens. [FN372] 

The Restatement lists several examples of currently recognized norms. It refers to the U.N. 
Charter's ban on aggressive warfare as an example of such a norm, [FN373] thus recognizing the 
incorporation of the proscription of Crimes Against Peace into international law. The Restatement 
also specifies that genocide, slave trade and slavery, murder, torture, and systematic racial 
discrimination are violations of jus cogens norms. [FN374] These norms correspond to the law applied 
at Nuremberg. Causing the disappearance of individuals, prolonged arbitrary detention, other gross 
violations of himian rights, and perhaps attacks on diplomats, also qualify as jus cogens violations. 
[FN375] 

Universal Jurisdiction is a time-honored doctrine that was accepted when the U.S. Constitution was 
written. [FN376] Although it was neglected as positivism and statism gained popularity, it was never 
completely abandoned. Universal Jurisdiction, simply stated, is the proposition that some crimes are 
xiniversally recognized as so opprobrious that any state that captiu-es the perpetrator is entitled to try 
and punish the criminal on behalf of all nations of the world. [FN377] Piracy has long been the 
archetypal crime giving rise to universal Jurisdiction. [FN378] However, universal Jurisdiction was 
never confined to piracy alone. [FN379] The Nuremberg Charter eflfectively made Crimes Against 
Peace, War Crimes, and Crimes Against ♦885 Humanity subject to imiversal Jurisdiction. 
Additionally, the Restatement explicitly acknowledges that war crimes, genocide, slave trade, 
[FN380] and aircraft hijacking [FN381] are subject to universal Jurisdiction. Consistent with the 
Nuremberg precedent, federal courts have deported war criminals to stand trial based on universal 
Jurisdiction. For instance, one federal court stated that, even if a deportee's crimes did not occur in a 
particular nation, that nation may exert Jurisdiction over the deportee on the basis of imiversal 
Jurisdiction. [FN382] 

Nuremberg was a watershed event that pointed international law towards a more humane and 
enlightened Interpretation and application. It also helped to revive universal Jurisdiction and spurred 
the advent of jus cogens doctrine. These doctrines have given momentimi to the pendulum of 
international law, which now Swings back to include individual rights as well as fundamental norms 






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of conduct as proper subjects of international law. Federal courts are now grappling with this 
transition from the Statist doctrine of the nineteenth Century to the post- World War n vision of 
international law. A movement is beginning toward accepting the "new"' post-Nuremberg vision of 
international law, which is more compatible with the pristine vision of the Founding Fathers than 
with the more recent Statist philosophy. At the same time, however, certain decisions threaten this 
needed transformation as judges cling to obsolete notions of absolute sovereignty and strict 
formalism. [FN383] 

Vn. APPLYING POST-NUREMBERG INTERNATIONAL LAW IN AMERICAN COURTS 

Interpretations of the Alien Tort Claims Act [FN384] (the "ATCA"') illustrate the tension between 
persistent nineteenth Century doctrines of international law and international law properly informed 
by Nuremberg and *886 its progeny. The case of Filartiga v. Pena-Irala [FN385] exemplifies the 
courts' understanding of the transformation of international law that has taken place since the 
Holocaust. 



A. FILARTIGA V. PENA-IRALA 

In Filartiga, Dr. Joel Filartiga and his daughter Dolly, Paraguay an nationals who had applied for 
political asylum in the United States, sued the alleged torturer of Dr. Filartiga's son in a U.S. court. 
The plaintiffs alleged that Pena-Irala, who was at that time the chief of police in Paraguay, tortured 
and killed Joelito Filartiga in retaliation for Dr. Filartiga's political beliefs. [FN386] The court 
considered on appeal whether the ATCA provided jiuisdiction for the alleged offense. [FN387] The 
court held that the ATCA authorized a cause of action for violations of the accepted norms of 
international law and further stated that "deliberate torture perpetrated under color of ofificial 
authority violates imiversally accepted norms of the international law of himian rights, regardless of 
the nationality of the parties."' [FN388] The court thus implicitly recognized the validity of jus 
cogens doctrine [FN389] and explicitly found that there is a readily identifiable body of law known 
as the international law of human rights. These conclusions are consistent with the Nuremberg 
precedent and the Intention of the Framers. [FN390] 

In reaching its decision, the Filartiga court relied on United States v. Smith [FN391] to properly 
identify the sources of the law of nations to which the ATCA referred. Among these sources is the 
general usage and practice of nations, [FN392] a source whose validity was recognized in The 
Paquete Habana, [FN393] which held that covirts may rely upon the works of jurists and 
commentators for "trustworthy evidence of what the law really is."' [FN394] Therefore, in Filartiga, 
Judge Kaufman appropriately considered multiparty international agreements and the work of legal 
scholars to ♦887 deduce the law. [FN395] Judge Kaufman concluded that customary international 
law includes the norm that torture is forbidden and imiversally condemned. [FN396] 

The opinion also affirms the Nuremberg principle that a govemment ofificial who violates the 
fundamental rights of a coimtry's own nationals within the country's own borders is still a criminal 
within the reach of international law. [FN397] Logically, it cannot be otherwise. If the nations of the 
World universally condemn the practice of State acts of torture, but refuse to penalize those actions, 
the condemnation has no eflfect. This result is incompatible with the immense weight given to a 
fundamental universally accepted principle. For these violations to be condenmed, courts must 
necessarily be able to reach actions that are carried out by govemment ofificials against their own 
nationals. If another nation's court cannot review these actions, then the world is left with the same 
Problem today that it encountered in reaching the Nazi persecutions committed within the borders of 
Germany prior to the war. The Filartiga court somewhat skirted this issue by finding that the 
torturer acted without the official authority of his State. [FN398] Nonetheless, Pena-Irala was, in 
fact, an agent acting imder color of his state's law. The court is to be commended for not allowing 



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this fact to shield him from prosecution. This holding refiites the Statist principles of the nineteenth 
and early twentieth centuries and demonstrates how the Filartiga coixrt exemplifies the proper 
application of international law in American courtrooms. 

The Filartiga court also contends that federal courts are the preferred forum for suits such as these 
that would also be authorized imder the common law. [FN399] If the federal courts do not assert 
Jurisdiction, the courts of the several states could come to diverse conclusions regarding international 
law. [FN400] It is better for the United States to speak with a ^888 unified voice conceming matters 
of international law and thus develop a coherent jurisprudence that properly regards constitutional 
implications. 

B. TEL-OREN V. LIBYAN ARAB REPUBLIC 

In contrast to the Filartiga decision, which integrates some aspects of the Nuremberg precedent, 
the decision in Tel-Oren v. Libyan Arab Republic [FN401] is a retrograde coUection of concurring 
opinions mired in conceptions of international law that ignore the impact of the Nazi crimes, the 
Nuremberg trials, and subsequent international Instruments on international law. The Tel-Oren suit 
was filed by the survivors and representatives of decedents who had been victims of a brutal 
murderous attack on a civilian bus on the highway between Haifa and Tel Aviv in Israel. Members 
of the Palestine Liberation Organization (the "PLO"') seized the bus on the highway, held all of the 
passengers captive, and tortured them until the Israeli Defense Forces halted the bus. The terrorists 
then began shooting passengers and detonating hand grenades, killing thirty-four persons, including 
twelve children, and wounding an additional eighty-seven individuals, including fourteen children. 
Asserting Jurisdiction under both federal question Jurisdiction and the ATC A, the survivors brought 
suit in federal district court. [FN402] 

The district court dismissed the case for failure to State a valid claim and failure to meet the 
Statute of limitations. [FN403] The court specifically rejected the notion that the ATCA provided 
Jurisdiction on the facts of the case. [FN404] The D.C. Circuit Court of Appeals affirmed the 
dismissal in a brief per curiam opinion, but the three judges covdd agree on little eise, each judge 
filing a separate concurring opinion. 

Judge Bork's opinion is excessively formalistic and displays a patent disdain for international law. 
His analysis ironically leads him to an inconsistent position for a positivist. He completely nullifies 
the congressional legislation at issue. The ATCA specifies the foUowing: "The district courts shall 
have original Jurisdiction of any civil action by an allen for a tort only, committed in violation of the 
law of nations or a treaty of the United States."' [FN405] If the district courts have Jurisdiction over 
aliens' suits for torts in violation of treaties and the law of nations, it foUows *889 that aliens may 
sue when they suffer such a tort. True, says Bork, but only if the treaty or relevant customary 
international law grants a specific private cause of action. [FN406] 

Judge Bork is primarily concemed that there is no explicit right granted to an individual to sue for 
a tort under the law of nations or a treaty of the United States. [FN407] Judge Bork maintains that, 
under the Separation of powers doctrine, foreign aflfairs are committed to the executive and the 
legislature and that the courts, lacking specific authorization, would be meddling in the nation's 
foreign affairs by inferring such a right. Consequently, he maintains that the courts should avoid 
any action in this area. [FN408] 

There are severe problems with the two pillars on which Bork bases his opinion. First, his 
insistence on an explicit private right of action is wrongly placed and would be sufficient to nullify 
the ATCA. A Statute should, if possible, be construed in a way that does not render any of its parts 
inoperative. [FN409] Although Judge Bork acknowledges that customary international law is a part 






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of federal common law, [FN410] he rejects the notion that it may provide a private right of action. 
[FN411] He contends that treaties rarely, if ever, provide private rights of action. [FN412] Bork 
would require the relevant treaty or customary international law to provide an explicit grant to an 
individual to bring suit. [FN413] However, in that case, the ATCA would become completely 
superfluous because its authorization to bring snit in federal court is unnecessary if international 
law, which is binding on our courts, explicitly grants a right of action to the individual. This 
construction effectively n\illifies the ATCA, and constructions that nnllify congressional legislation 
are highly suspect. 

Bork, however, is apparently more concemed with neutralizing the power of the court and 
enhancing that of the other branches than he is with nidlifying legislation. He argues that, in order 
to remain faithful to the doctrine of Separation of powers, the court should not infer a right of *890 
action unless Congress intended one. [FN414] He correctly ascertains that the legislative history of 
the ATCA is sparse. [FN415] He then jumps to the erroneous conclusion that congressional intent 
cannot be ascertained. [FN416] One of Judge Bork's errors is that he ceases his inquiry once he 
determines that there is no record of House or Senate debates on the ATCA. Yet consideration of the 
Framers' understanding of international law is certainly relevant, and there is a great deal of 
evidence about their high regard for international law. [FN417] Furthermore, some highly relevant 
legislative history exists, though not in the form of House or Senate debates. 

In 1781, the Continental Congress passed a resolution that was a precursor to the ATCA. The 
resolution urged the states to punish violations of "safe conducts,"' [FN418] "infractions of the 
immunities of ambassadors and other public ministers,"' [FN419] and "infractions of treaties and 
Conventions to which the United States are a party."' [FN420] William Blackstone ranked the first 
two of these oflfenses, along with piracy, among "[t]he principal oflfenses against the law of nations"' 
in the eighteenth Century. [FN421] Bork is familiär with Blackstone's list and surmises that the 
drafters of the ATCA intended it to be limited to these three oflfenses. [FN422] Bork, however, admits 
that he is merely speculating. [FN423] 

An examination of the historical record leads to the opposite conclusion. The Continental 
Congress's resolution urged not only that the states assert Jurisdiction over "those oflfenses . . . most 
obvious"' but also that the states should have their courts "decide on oflfences against the law of 
nations, not . . . enimierat[ed]."' [FN424] 

When the First Congress draflted the Judiciary Act, the authors echoed the expansive clauses of the 
Continental Congress's resolution rather than the restrictive clauses. The original Senate draflt of the 
Judiciary Act [FN425] vested the district courts with "cognizance, concurrent with ♦891 the courts of 
the several states, or the circuit courts, as the case may be, of all causes where a foreigner sues for a 
tort only in violation of the law of nations or a treaty of the United States."' [FN426] The precise 
language of the resolution was subsequently revised, but the broad language enabling the district 
courts to hear all tort suits brought by an allen remained the same. The draflters certainly were 
capable of draflting a more restrictive Statute if they so desired. [FN427] Indeed, the draflters of the 
ATCA did not even require a minimimi amoiuit in controversy, whereas the First Congress 
demanded that at least five hundred doUars be in controversy before a federal court could exercise 
original or removal Jurisdiction in a civil case. [FN428] Thus, the historical record strongly implies 
that the First Congress intended that the courts apply the ATCA broadly. 

Further evidence supporting a broad Interpretation is provided by Attomey General William 
Bradford's oflficial opinion of July 6, 1795. An American Citizen led a squadron of French ships on a 
raid against the British colony of Sierra Leone in westem Afirica. The squadron fired on the town 
jfrom the harbor and then landed its crews, who plundered the town. The invaders remained at the 
colony for two weeks, during which time they desecrated the chiu-ch and bumed several structures 






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and ships. When they departed, they left no medicine and barely enough food to last the colony one 
week. A general sickness broke out in the next few weeks, and some inhabitants died of illness or 
starvation. [FN429] The ofiFense violated the Treaty of Amity between the United States and Great 
Britain as well as President Washington's declaration of neutrality. [FN430] Bradford advised the 
British Ambassador that, if such a violation were committed on United States territory or upon the 
high seas, it would be "an ofFence against this country, and punishable by the laws of this country."' 
[FN431] The Attomey General, however, did not believe that the federal courts would claim criminal 
Jurisdiction, insofar as the ofiFense complained of took place in a foreign country: 

But there can be no doubt that the Company oa individuals who have been ii\jured by these acts 
of hostility have a remedy by a civil suit in the courts of the United States; Jurisdiction being 
expressly given to *892 these courts in all cases where an allen sues for a tort only, in violation of 
the laws of nations, or a treaty of the United States. [FN432] 

Bradford directly quotes the ATCA, and clearly illustrates that in 1795, a mere six years after 
passage of the Judiciary Act, the Attomey General had no doubts about the proper Interpretation of 
the ATCA. The ATCA was meant to be applied broadly to punish torts in violation of international 
law. Furthermore, Bradford's Interpretation reflects the great respect international law conmianded 
from the Framers. [FN433] 

Bradford's Interpretation conflicts with Judge Bork's. Nowhere does Bradford mention that a 
private right of action is necessary. Rather, he states that a tort arising in a foreign coimtry in 
violation of a treaty or the law of nations gives rise to a private right of action in and of itself. This 
conforms with the practice of interpreting an ofiFense against the law of nations as a common law 
crime. [FN434] While the federal courts will no longer hear cases that allege common law crimes, 
[FN435] there is no corresponding prohibition against common-law civil suits. 

Judge Bork's general disdain for international law is clear. He asserts that international law is of 
minor importance in world afiFairs [FN436] and that "'the international Community could not 
plausibly be described as govemed by laws rather than men."' [FN437] Many commentators sharply 
disagree with this assessment, including the drafiters of the Restatement. [FN438] Judge Bork also 
argues at some length that international law confers rights on states only, not individuals. [FN439] 
These views are inconsistent with the important developments in international law that have 
occurred since Nuremberg. 

Judge Bork relies heavily on the notion that the Separation of powers doctrine also requires him to 
dismiss the case. [FN440] He cites the Act of State Doctrine as evidence that courts should not 
"meddle"' in foreign ^893 afiFairs. However, the cases upon which he relies regarding the Act of State 
Doctrine involve either the lawful actions of a military ofiQcer, [FN441] nationalization of private 
property by a foreign state, [FN442] or price fixing [FN443] and other unfair competition Claims. 
[FN444] All of these situations are qualitatively difiFerent from those involving violations of the 
international law of himian rights. Hiunan rights violations properly give rise to imiversal 
Jurisdiction, [FN445] whereas the Claims that Bork cites do not. Therefore, it is highly questionable 
whether the Act of State Doctrine applies where gross violations of human rights have occurred. 

Judge Bork's great reluctance to adjudicate Claims implicating foreign relations is also an 
abdication of the courts' responsibility to "say what the law is."' [FN446] As the Restatement 
exhorts, "in conducting the foreign relations of the United States, Presidents, members of Congress, 
and public ofificials are not at large in a political process; they are imder law."' [FN447] The courts 
may not blindly defer to the executive or to Congress. They must carefully examine the interests 
implicated, giving due weight to international law. The court in Tel-Oren was not required to 
prescribe policy to the other branches. Rather, it was requested to settle a private suit, and, as 






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The objection that the subject-matter of the suit is political is little more than a play upon 
words. Of course the petition concems pohtical action but it alleges and seeks to recover for 
private damage. That private damage may be caused by such political action and may be 
recovered for in a suit at law hardly has been doubted for over two hundred years, and has been 
recognized by this Court. [FN449] 

For all of these reasons, Judge Bork's application of the Separation of powers doctrine is flawed. 

Judge Robb is even less inclined than Judge Bork to adjudicate the case. He views the issue as a 
political question that should be determined ^894 by the executive and legislative branches. [FN450] 
The arguments against the application of the Separation of powers doctrine apply equally well to 
Judge Robb's reliance on the political question doctrine. 

All three of the judges in Tel-Oren were convinced that the court could not adjudicate a dispute 
arising from terrorist actions of a non-state actor. Even Judge Edwards, who asserts that he agrees 
with the Filartiga court's analysis of the ATCA, [FN451] adopts a statist approach to international 
law, holding that international law does not address terrorist actions such as the torture and murders 
at issue in Tel-Oren. [FN452] He even incorrectly interprets Nuremberg as standing for the 
proposition that non-state actors are not subject to international law. [FN453] Nuremberg's true 
significance on this point, however, is that the individual has obligations under international law. 
[FN454] The law holds govemment ofificials responsible for crimes they conunit not because they 
misuse their ofEce, but because their oflEice cannot shield them from its reach. [FN455] In Filartiga, 
Judge Kaufman compares the torturer to "the pirate and slave trader before him-hostis humani 
generis, an enemy of all mankind."' [FN456] Such enemies of all mankind are deemed to be 
stateless in that they act without the protection of any sovereign and in obedience to none. [FN457] 
In fact, their statelessness is a contributing factor in their being amenable to prosecution in federal 
Courts. [FN458] Therefore, if the terrorist perpetrators are regarded as nonstate actors who violate 
peremptory norms of international law, like the pirates before them, they are within the Jurisdiction 
of federal courts. 



The judges in Tel-Oren are fiirther bothered by what they perceive to be a lack of international 
consensus regarding the illegitimacy of terrorism. [FN459] However, even if one hypothetically 
accepts that the accused terrorists in Tel-Oren are legitimate belligerents, they remain guilty of *895 
violating international law, and the law is clear on the Standard upon which they must be judged. 
The Nuremberg Charter condenmed the "killing of hostages"' as a War Crime. [FN460] In the 
successor trial of United States v. List (the "Hostage Case"'), [FN461] the tribunal ascertained that 
under the existing state of international law regarding the taking and killing of hostages, a hostage 
might legally be killed only under certain fact-specific circumstances. [FN462] These circumstances 
included an occupying power's need to maintain order, fair notice to the population of what specific 
acts would be pxinished, and a requirement that "[t]he number of hostages shot must not exceed in 
severity the oflFenses the shooting is designed to deter."' [FN463] The tribimal foimd that the 
German defendants had not acted within these restrictions, but instead had killed indiscriminately 
in Order to terrorize the local population. [FN464] As a result, the defendants were foimd guilty of 
War Crimes. 

The Tel-Oren case also falls far outside of the limited conditions recognized by the List tribimal. 
The actors were not attempting to maintain order in the territory that they occupied, but were 
specifically interested in terrorizing and indiscriminately killing civilians. Furthermore, foUowing 
the Nuremberg Trials, the Geneva Convention Relative to the Protection of Civilian Persons in Time 
of War of August 12, 1949 [FN465] absolutely prohibited the taking of civilian hostages. [FN466] It 






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On one hand, if the Tel-Oren terrorists are regarded as stateless criminals, they will be liable for 
prosecution iinder international law as violators of jus cogens norms, just as pirates would be. On the 
other hand, if they are regarded as legitimate belligerents involved in a war, they are equally guilty 
of violating firmly established norms of conduct. The same reasoning applied to the Nazi criminals at 
Nuremberg: if they were seen as an illegal govemment acting without legitimate authority, they 
could be held to answer on the basis that their Substantive crimes *896 were violations of 
international law. Indeed, the individual was specifically held to have obligations under 
international law. [FN468] On the other hand, if the Nazi criminals were accorded the mantle of 
legitimate State authority, they were still held answerable for the same crimes; their high oflfice 
could not shield them from prosecution. [FN469] 

In the intervening years between Nuremberg and the Tel-Oren decision, international law has 
become even clearer on the treatment of civilian populations in general, and on the taking of 
hostages in particular. Protocol I of The Geneva Convention of 1949, adopted in 1977, [FN470] 
specifically extends the terms of the Convention to national liberation movements struggling against 
foreign powers or illegitimate govemments. [FN471] It reiterates that "'individual civilians, shall 
not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror 
among the civilian population are prohibited."' [FN472] Furthermore, the Convention clearly 
prohibits "murder," "torture,"" and "the taking of hostages."' [FN473] 

Judge Bork specifically objects to a judicial finding that the PLO is a legitimate belligerent as 
defined by the Protocol. [FN474] In this instance, he is correct that the court would be treading on 
executive prerogatives, for it is the executive who has the authority to recognize foreign 
govemments. [FN475] However, in this instance, the outcome of the case does not hinge on whether 
the PLO is seen as a legitimate belligerent or as a piratical criminal. The coiui; need not specify the 
proper Status to accord the PLO, but the court must recognize that, whatever the PLO's Status, the 
acts specified in the Tel-Oren suit are grievous transgressions of international law and thus 
amenable to suit under the ATCA. The judges' reliance on Separation of powers doctrine and their 
Claims of diflficulty in discovering an international consensus on terrorism are insufEcient to justify 
the dismissal of the case. The plaintifFs properly alleged a tort *897 "committed in violation of the 
law of nations or a treaty of the United States."' [FN476] 

The Restatement lends fiirther support to this Position. [FN477] In discussing universal 
Jurisdiction, the Restatement acknowledges that "[t]here has been wide condemnation of terrorism 
but international agreements to pimish it have not [yet] been widely adhered to, principally because 
of inability to agree on a definition of the offense."' [FN478] It notes that the United States is a 
party to several international agreements that condemn various forms of terrorism. [FN479] In spite 
of a lack of general agreement on an all-purpose definition of terrorism, "[u]niversal Jurisdiction is 
increasingly accepted for certain acts of terrorism, such as . . . kidnapping, and indiscriminate violent 
assaults on people at large."' [FN480] These same acts occurred in Tel-Oren. Thus, such actions can 
accurately be described as torts in violation of the law of nations. This interpretation makes ATCA 
Jurisdiction appropriate. The Restatement further explicitly states that "[ujniversal Jurisdiction [is] 
not limited to criminal law. . . . International law does not preclude the application of non-criminal 
law on this basis, for example, by providing a remedy in tort or restitution for victims ...."' 
[FN481] 



C. AMERICAN CASES MAKING EXPLICIT REFERENCE TO NUREMBERG 

Both the Filartiga and the Tel-Oren covirts dealt with issues that are enlightened when interpreted 
with reference to Nxu-emberg and its influence on international law. The Filartiga court, although it 



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failed to explicitly mention Nuremberg, remained faithful to its tenets. Judge Edwards in Tel-Oren 
explicitly referred to Nuremberg and correctly acknowledged it as a seminal event in allowing 
international law to encompass the enforcement of rights by and for individuals, rather than *898 
exclnsively for states. [FN482] He then, however, rejected this principle in favor of the lingering 
exclusive Statist conception of international law. 

Several other American cases explicitly refer to Nuremberg. These references occur in a wide 
variety of circimistances, but they appear most frequently in a few distinct types. During the 
Vietnam war, defendants relied on Nuremberg as a defense for their actions in several contexts 
including protesting and refiising induction into the armed Services. Nuremberg is cited in other civil 
disobedience contexts as well, including protests of nuclear weapons and nuclear power plants. 
Nuremberg has also been referred to in other areas, including, as might be expected, the deportation 
appeals of suspected Nazi war criminals and, not quite as expectedly, other extradition appeals. 

In the Vietnam and civil disobedience cases, the defendants often assert that Nuremberg 
established that individuals have obligations to international law and that, if the local law conflicts 
with these obligations, the Citizen has a duty to obey the higher law-the international law. Although 
the defendants accurately state the Nuremberg principles and the courts implicitly acknowledge the 
precedent, the courts uniformly refiise to acknowledge their application to the facts presented in the 
particular case. For example, in State v. Marley, [FN483] demonstrators staged a peaceful sit-in at 
Offices of Honeywell, Inc. in Hawaii to protest Honeywell's manufacture of weapons that the 
protestors believed would be used in Vietnam to commit war crimes. The court held that, for the 
protestors to properly rely on Nuremberg, their rights had to be directly threatened, [FN484] or they 
must have had a reasonable belief that their actions would prevent an imminent crime. [FN485] The 
court denied the validity of a Nuremberg defense because the härm did not occur in the presence of 
the protestors and they could not reasonably expect that their actions would halt the commission of 
the crimes that they were protesting. [FN486] 

Similarly, in United States v. Owens, [FN487] a young man was prosecuted for refiising to be 
inducted into the military. He claimed that, if inducted, he would be an accomplice to war crimes 
because he believed that the United States was violating international law by waging war in 
Vietnam and, fiirther, that the United States was committing specific war *899 crimes. [FN488] The 
court relied in part on the decision of the International Military Tribunal at Nuremberg [FN489] 
and acknowledged that an individual who is merely foUowing Orders can be tried for violating the 
laws of war. However, the judge held that Owens was not entitled to raise these issues at the time of 
induction, [FN490] and the judge did not indicate when the appropriate time would be. 

In United States v. Sisson, [FN491] the Massachusetts District Court was presented with a similar 
question, but came to a different conclusion. The defendant claimed to be a conscientious objector to 
the Vietnam war and based his beliefs in part on the Nuremberg Charter and The Judgment of the 
IMT. [FN492] The district court found that resolution of the case involved the noi\justiciable political 
question of whether the war in Vietnam was an illegal war and therefore granted a motion in arrest 
of judgment. [FN493] The Supreme Court affirmed on procedural grounds. Neither the court below 
nor the Supreme Court reached the merits of the case. [FN494] 

The case of United States v. Mitchell [FN495] also involved a young man who refiised induction 
into the armed Services. He was subsequently sentenced to five years imprisonment. [FN496] Again, 
a majority of the Court refiised to reach the merits and Justice Douglas severely criticized them for 
this refusal. In Mitchell, the defendant exphcitly relied on the Treaty of London [FN497] for the 
proposition that the " 'waging of a war of aggression' is a 'crime against peace' imposing 'individual 
responsibility' . . . [and] '[t]he fact that the Defendant acted pursuant to order of his Government or of 
a superior shall not free him fi^om responsibility ....'" [FN498] Justice Douglas believed that the 



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defendant had squarely presented the *900 issues of how Nuremberg applied to the conduct of the 
war in Vietnam and that the Court should have addressed these issues. [FN499] 

While the courts seem to be fair in denying a Nuremberg defense to demonstrators, a diflferent 
issue is presented by those who refiise induction. Whether the war in Vietnam violated international 
law in a manner akin to the crimes identified in Coimt Two of the Nuremberg indictment might be 
of consequence in defending a young draftee like Mitchell. 

Within the context of protest against nuclear weapons, the courts take the same approach to the 
"Nuremberg"' defense as they did in the Vietnam War protestor cases. In People v. Weber, [FN500] 
protesters demonstrating against nuclear weapons at the General Dynamics U.S. Navy Submarine 
Base at Ballast Point in San Diego were convicted of trespass and obstruction of a street or sidewalk. 
[FN501] In their defense, the demonstrators claimed that international law as pronoimced by the 
Nuremberg Charter obliges them "to speak out against a nuclear crime."' [FN502] The judge did not 
specifically decide the issue of the applicability of Nuremberg to their protest activities, but implied 
that, while international law grants individuals a right to speak out, which is also protected by the 
United States Constitution, trespass and blocking traflfic is not similarly protected by international 
law. [FN503] The Weber decision is representative of those of other courts deciding protesters' claims 
that the Nuremberg principles defend their actions. The court in Weber did not reject the validity of 
the precedent and even expressed respect for it. [FN504] However, the court found the defense 
inapplicable on the particular facts presented. [FN505] 

♦901 The court was willing to give a great deal of weight to Nuremberg in one case involving the 
deportation of a Nazi war criminal. In Demjaiyuk, the court relied on Nuremberg to Support its 
finding that the alleged crimes were subject to universal Jurisdiction. [FN506] The court also 
acknowledged that, by virtue of the role that the United States played at Nuremberg, its courts are 
boimd to recognize the criminality of the alleged War Crimes and Crimes Against Humanity. The 
court also refused to hear the argument that to punish the defendant would be to apply ex post facto 
law and cited the International Military Tribunal as excluding such arguments regarding Nazi war 
crimes. [FN507] 

♦902 Other deportation/extradition cases refer to Nuremberg when deciding whether the appellant 
qualifies for a political exception to deportation (i.e., whether the crime that the foreign Jurisdiction 
wishes to prosecute is of a purely political nature). Andrija Artukovic, a former concentration camp 
guard, originally avoided extradition to Yugoslavia on this ground in 1956. [FN508] This decision 
was subsequently roimdly criticized. [FN509] Artukovic was finally deported in 1986 when his final 
request for a stay of deportation was denied. [FN510] 

In In re Doherty by Government of the United Kingdom of Great Britain and Northern Ireland, 
[FN511] the poUtical exception to extradition was again a central issue. At the direction of the 
Provisional Irish Republican Army, Doherty and his group had ambushed a group of British soldiers 
and, in an exchange of gunfire, had killed Captain Westmacott of the British army. [FN512] The 
district court judge refiised to extradite Doherty, whom the British wished to prosecute for 
Westmacott's murder. The court held that, under the alleged facts, the killing was a political offense 
and, thus, Doherty was excepted from extradition. [FN513] The judge stated that a person engaged in 
a political struggle who does not violate international law may claim the political offense exception 
to deportation. [FN514] The court distinguished such acts from the Nazi crimes as defined at 
Nuremberg [FN515] and terrorist acts such as detonating a bomb in a public place causing 
indiscriminate personal iiyury and death because the latter would not give rise to a political 
exception. [FN516] It is encouraging that the judge was willing to adjudicate a case involving actions 
arising out of a political Situation and was concemed with the rights of the individual involved in the 
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•903 The principles of Nuremberg have also been cited favorably in a few other notable Supreme 
Court cases. In United States v. Stanley, [FN517] a member of the Armed Services was the subject of 
LSD drug experiments that were directed by the army but conducted by civilians. [FN518] Justice 
0*Connor, in her concurring and dissenting opinion, rightly cites the Nuremberg principles as 
absolutely forbidding human experimentation without the "voluntary consent of the human 
subject."'] [FN519] In his separate dissenting opinion, Justice Brennan, joined by Justice Marshall, 
contends that Nuremberg should be given paramount consideration as a historical precedent in 
deciding the issues of such cases. [FN520] 

Some general conclusions may be drawn from these disparate applications of the Nuremberg 
principles. On at least some occasions, a court will cite Nuremberg when it is directly on point and 
will properly Interpret it. More frequently, a court will acknowledge that Nuremberg is a valid 
precedent, which, if properly presented, may be a deciding factor in its decision. On the other band, 
the Courts generally decline to inquire in depth into the fiill Import of Nuremberg and its progeny 
and do not attempt to apply them to the case at band. Both courts and parties should give serious 
consideration to the Nuremberg principles and should vigorously apply them whenever they are 
appropriate to deciding the case at band. Although it is important to cite Nuremberg as a precedent 
where it is applicable, it is more important for courts to acknowledge the profound effect that 
Nuremberg has had on the body of international law and, so informed, to aggressively apply 
international law whenever it is relevant. 



Vm. CONCLUSION 

Nuremberg was a pivotal event in international law. In some ways it was a retum to venerable 
doctrines that had fallen into disuse and disfavor. That doctrines adhered to by the Framers, such as 
natural law, feil into disfavor is not itself a tragedy; new thoughts and philosophies are constantly 
vying to provide a better explanation of our world than current explanations. The advance of 
technology and the rise of industry has significantly changed the world from the one in which the 
Framers lived. However, many of the Framers' beliefs are still extremely relevant ^904 today. After 
all, it is by striving to adhere to their Ideals of freedom and justice that we ensure our continued 
eiyoyment of those precious gifts. 

The Framers' belief in natural law helped to ensure that they would apply the law of nations in the 
interests of fundamental moral values. During the nineteenth Century, as natural law feil into 
disfavor and positivism gained sway, international law became more concemed with maximizing a 
state's sovereignty and less concemed with following any fundamental precepts of morality. 

This conception was questioned at the onset of the twentieth Century and was seriously weakened 
by the bloodbath of World War I. I have referred to several international instruments, created both 
before and after World War I, which attempted to limit the unbridled power of absolute sovereignty. 
Unfortunately, it took the unimaginable horror of the Nazi regime to finally convince the world 
Community to reform international law and to once again realize the essential importance of 
fundamental moral values in international law. 

The reformation sparked by Nuremberg is, however, endangered by the proponents of the Statist 
nineteenth-century philosophies. The reformed version of international law should be applied, 
especially in American courtrooms. The reformed version is consistent with the Framers' Ideals 
because they believed in an international law infiised with moral principles and considered 
international law to be a part of the law of the land. Also, as prime movers behind the trial at 
Nuremberg, it is especially incimibent upon the United States to be bound by it. By fully 
implementing the international law of Nuremberg and its progeny, the United States can "help to 
strengthen the bulwarks of peace and tolerance."' [FN521] 






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If the United States needs more incentive to aggressively apply international law as properly 
informed by Nuremberg, we need only remember the Nazi horrors of World War n. Nxiremberg was 
a response to that tragedy. It drew upon soiind precepts of international law to condenin those 
crimes. It reincorporated fundamental moral principles into international law and signalled to the 
World that, whatever doubts might exist as to whether it was a proper application of the then current 
conception of international law, it is the conception that the nations and people of the world will 
henceforth be held to. It is incximbent upon us *905 to strive to insure that the proniise of Nuremberg 
is fiilfilled. To fall is to risk repeating the past. 

FNl. Report to the President by Mr. Justice Jackson, Oct. 7, 1946, reprinted in R. JACKSON, INTERNATIONAL 
CONFERENCE ON MILITARY TRL\LS, 432, 439 (U.S. Dept. of State Pub. No. 3080) (1949). 

FN2. 13 U.S. (9 Cranch) 388 (1815). 
FN3. Id. at423. 






FN4. 28 U.S.C. § 1350 (1982). 

FN5. See 22-42 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY 
TRIBUNAL (1946) [hereinafter IMT] (documents in evidence at Nuremberg); OFFICE OF UNITED STATES CHIEF 
OF COUNSEL FOR THE PROSECUTION OF AXIS CRIMINALITY, NAZI CONSPIRACY AND AGGRESSION 
(1946) [hereinafter NAZI CONSPIRACY] (ten volumes of German documents collected by the American and British 
staffs at Nuremberg); see also R. CONOT, JUSTICE AT NUREMBERG 24-25 (1983) (describing the daunting task of 
assimilating the wealth of German documents available to the Tribunal); R. JACKSON, supra note 1, at 433 ("In 
preparation for the trial over 100,000 captured German documents were screened or examined."'). 

FN6. See The Judgment, 1 IMT, supra note 5, at 224-26; 2 id. at 192, 200-01; 3 id. at 401-03; 8 id. at 216; 19 id. at 
537. The Judgment is also reproduced in 22 id. at 171. See also infra note 158 (citing statistics that estimate the 
number of Jews killed by the Nazis). 

FN7. L. DAWIDOWICZ, THE WAR AGAINST THE JEWS 1933-1945, 148 (1975); K. FEIG, HITLER'S DEATH 
CAMPS, THE SANITY OF MADNESS 24 (1979). 

FN8. 2 IMT, supra note 5, at 192; 4 id. at 184; 22 id. at 512; see also W. SHIRER, THE RISE AND FALL OF THE 
THIRD REICH 305-14 (Ballentine ed. 1983) (discussing the arrest and execution of the Nazis' political opponents in 
late June and early July of 1934). 

FN9. 1 IMT, supra note 5, at 226-28, 232-43; see also Decree for the Conduct of Courts Martial in the District 
"Barbarossa"' May 13, 1941, in 3 NAZI CONSPIRACY, supra note 5, at 637 (a decree from Hitler and signed by 
Keitel that provides for, inter alia, collective punishment of civilians and discourages prosecution of offenses committed 
by German soldiers against civilians). 

FNIO. Taylor, Nuremberg Trials: War Crimes and International Law, 450 INT'L CONCBLIATION 243, 280-83 
(1949). For accounts of experiments involving the freezing of humans, see 2 IMT, supra note 5, at 129-30; 4 id. at 
205-06; 5 id. at 170. Documentation about experiments involving human prisoners* reactions to high altitudes can be 
found in 1 id. at 252, 4 id. at 203, 5 id. at 169, and 21 id. at 309. Evidence of experiments involving human 
sterilization are chronicled in 1 id. at 252 and 6 id. at 211-12. 

FNll. R. CONOT, supra note 5, at 243-50, 440-42; see also 1 IMT, supra note 5, at 227, 243 (slave labor policy); id. 
at 356-57 (number of reftigees used for labor and descriptions of their horrible working conditions); 15 id. at 6-207 
(testimony of Fritz Sauckel conceming deportation and treatment of foreign civilians); 16 id. at 439, 537, 541 
(conditions at the labor camps). In one such factory, hundreds of people died on a daily basis. R. CONOT, supra note 



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FN12. 1 IMT, supra note 5, at 62. 234, 270; 7 id. at 156; 8 id. at 122; R. CONOT, supra note 5, at 277. 



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FN13. See, e.g., infra notes 145, 172 and accompanying text. 
FN14. Taylor, supra note 10, at 244. 

FN15. The United States President Franklin Delano Roosevelt spoke out in October 1941 condemning the Germans for 
executing scores of "innocent hostages."' Id. In January 1942, the Soviet government circulated diplomatic notes 
decrying the atrocities the Germans were committing against the civilian population. Id. In August 1942, Roosevelt 
again said that he had received intelligence "calling attention to the barbaric crimes against civilian populations which 
are being committed in occupied countries, particularly on the continent of Europe."' 7 U.S. Dept. of State Bull. 709 
(Aug. 22, 1942). In a press release dated Oct. 7, 1942, he reiterated that these crimes were continuing and that the 
United States government intended to cooperate with the governments of the United Nations to see that those 
responsible for these crimes received "just and sure punishment. "' White House Press Release (Oct. 7, 1942), reprinted 
in R. JACKSON, supra note 1, at 9. This press release was annexed to the Memorandum to President Roosevelt from 
the Secretaries of State and War and the Attorney General (Jan. 22, 1945) [hereinafter The Three Secretaries Memo], 
reprinted in R. JACKSON, supra note 1, at 3. 

FN16. Statement Signed by President Roosevelt, Prime Minister Churchill and Premier Stalin Regarding Atrocities 
(The Moscow Declaration), reprinted in R. JACKSON, supra note 1, at 11-12. 

FN17. Id. atll. 
FN18. Id. at 12. 
FN19. Id. 

FN20. B. SMITH, THE AMERICAN ROAD TO NUREMBERG 5-6 (1982); A. TUSA & J. TUSA, THE 
NUREMBERG TRIAL 30-31 (1984). 






FN21. B. SMITH, supra note 20, at 5-6; A. TUSA & J. TUSA, supra note 20, at 30-31. 
FN22. See infra notes 69-75 and accompanying text. 
FN23. See infra notes 28-49, 56-89 and accompanying text. 

FN24. A. TUSA & J. TUSA, supra note 20, at 61 & n. 6. British Foreign Secretary Eden believed that the fate of the 
Nazi criminals was a matter of "high policy"* and that a trial was undesirable. Id. 

Lord Simon promised üiat the major Nazi criminals would receive exemplary punishment. Id. at 62 & n. 10 (quoting 
Simon's remarks in the House of Lords on December 15, 1942). Eden proposed disposing of them by summary 
action. Id. at 63 & n. 12 (citing the British Cabinet's paper, Treatment of Major War Criminals, which was presented 
in May 1944); see also R. CONOT, supra note 5, at 13-14 (British preferred execution without trial); Memorandum 
by Murray C. Bernays on the Trial of European War Criminals (Sept. 15, 1944) [hereinafter The Bernays Plan], 
reprinted in B. Smith, supra note 20, at 33-37 (This Memorandum was prepared to help the War Department plan its 
occupation policy. Bernays argues against sunmiary execution as a method of dealing with the Nazi criminals); 
Memorandum from Henry Morgen hau, Jr. to President Roosevelt (Sept. 5, 1944) (The Morgenthau Plan), reprinted 
in B. SMITH, supra note 20, at 27-28 (Morgenthau, the United States Secretary of the Treasury during World War 
n, argued in favor of compiling "[a] list of the arch-criminals of this war whose obvious guilt has generally been 
recognized by the United Nations,"* apprehending those criminals as soon as possible, and, after proper identification 



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FN25. See infra notes 192-258 and accompanying text. 

FN26. Id. 

FN27. See supra notes 14-15 and accompanying text. 

FN28. B. SMITH, supra note 20, at 5; A. TUSA & J. TUSA, supra note 20, at 31. 

FN29. WAR DEPARTMENT HANDBOOK OF MILITARY GOVERNMENT FOR GERMANY (Sept. 1, 1944) 
[hereinafter THE HANDBOOK], reprinted in B. SMITH, supra note 20, at 15-16. 

FN30. The Geheime Staats Polizei (Secret State Police) was responsible for detaining and interrogating political 
prisoners, confming individuals to concentration camps, suppressing and Controlling the press and the churches, and 
mistreating and murdering prisoners of war. It acted chiefly against the Jews by arresting individuals, organizing 
pogroms, deporting Jews to concentration camps, and playing a leading role in the Einsatzgruppen (execution squads 
that operated in the occupied eastern territories of the German Reich). 1 IMT, supra note 5, at 263, 265-67. 

FN31. Der Sicherheitsdienst des Reichsfhrer SS. The SD was a voluntary Organization closely aligned administratively 
with the Gestapo and the SS. The SD served primarily as an intelligence Organization in support of these other groups, 
particularly the Gestapo. Id. at 262-67. It served alongside the Gestapo in Einsatzgruppen, and was partially 
responsible for "the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses 
in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and 
murder of prisoners of war."* Id. 

FN32. Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei-a branch of the SS. The SS was 
responsible for a wide ränge of activities, both administratively and as an active participant. Administratively, it 
controlled the Gestapo and the SD. See supra note 31. Actively, it was involved in the deportation and murder of Jews, 
helped run the concentration camps, conducted gruesome medical experiments, and organized subversive activities in 
countries prior to occupation by the German army. The Waffen SS was specifically responsible for several documented 
massacres and murders of prisoners of war. 1 IMT, supra note 5, at 268-73. 

FN33. Die Sturmabteilungen der Nationalsozialistischen Deutschen Arbeiterpartei (the storm troopers of the Nazi 
party). The SA was organized along military lines. It was originally a private army of the Nazi party and became an 
official government Organization, while remaining part of the Nazi party, after the Nazis came to power in 1933. It 
served generally as the "'strong arm"' or coercive branch of the Nazi party, conducting street fights with political 
opponents and disseminating Nazi Propaganda. After the Nazis came to power, the SA continued to carry out strong 
arm tactics on behalf of the Nazi party by arresting and murdering political opponents, instigating violence against the 
Jews, and serving as guards in concentration camps where the storm troopers were known for their brutal treatment of 
prisoners. 1 IMT, supra note 5, at 273-75. 

FN34. See THE HANDBOOK, supra note 29, at 15-16. 

FN35. Memorandum from the President to the Secretary of War (Aug. 26, 1944) (quoting THE HANDBOOK), 
reprinted in B. SMITH, supra note 20, at 20-21. 

FN36. See B. SMITH, supra note 20, at 7-8. See generally A. TUSA & J. TUSA, supra note 20, at 50-51 
(Morgenthau believed Germany should be "broken"'). 

FN37. Memorandum from the Secretary of the Treasury to the President entitled Suggested Post-Surrender Program 
for Germany (Sept. 5, 1944), reprinted in The Conference at Quebec 1944, in FOREIGN RELATIONS OF THE 






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FN38. See Concurrent Congressional Resolution (Mar. 16, 1943), reprinted in R. JACKSON, supra note 1, at 10-11; 
A. TUSA & J. TUSA, supra note 20, at 30. 

FN39. See supra note 24 and accompanying text. 

FN40. Presidential Memorandum for the Secretary of War (Aug. 26, 1944), reprinted in B. SMITH, supra note 20, at 
20-21. 

FN41. Memorandum from the State Department to the Cabinet Committee on Germany (Sept. 5, 1944), reprinted in 
The Conference at Quebec 1944, in FOREIGN RELATIONS OF THE UNITED STATES, supra note 37, at 95, 96. 

FN42. 48 DIARIES OF HENRY L. STIMSON 22 [hereinafter STIMSON DIARIES] (entry of Aug. 25, 1944), 
reprinted in B. SMITH, supra note 20, at 20. 

FN43. Memorandum from Henry L. Stimson to Henry Morgenthau, Jr. (Sept. 5, 1944), reprinted in B. SMITH, supra 
note 20, at 30. 

FN44. Id. 

FN45. Id. 

FN46. Id. 

FN47. The Commission consisted of representatives from all of the countries that were fighting the Germans. The 
Commission was established during the war to investigate charges of Nazi criminality and by 1944 had started to 
assemble lists of war criminals. Taylor, supra note 10, at 246. 

FN48. Memorandum from the British Ambassador (Halifax) to the Secretary of State (Hüll) (Aug. 19, 1944), reprinted 
in 1 FOREIGN RELATIONS OF THE UNITED STATES 1251-53 (U.S. Dept. of State Comp.1955).' 

FN49. See supra note 24 and accompanying text. 

FN50. Id. 

FN51. Memorandum from British Lord Chancellor Simon entitled Major War Criminals (Sept. 4, 1944), reprinted in 
The Conference at Quebec, in FOREIGN RELATIONS OF THE UNITED STATES, supra note 37, at 91-93. 

FN52. Id. 
FN53. Id. 

FN54. See generally A. TUSA & J. TUSA, supra note 20, at 60-61 (discussing the reasons for rejecting the 
Morgenthau Plan). 

FN55. B. SMITH, supra note 20, at 10; A. TUSA & J. TUSA, supra note 20, at 61. 
FN56. The Bernays Plan, supra note 24, at 33-37. 
FN57. Id. at 36. 



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FN58. Letter from the Secretary of War (Stimson) to the Secretary of State (Hüll) (Oct. 27, 1944), reprinted in B. 
SMITH, supra note 20, at 38-41. 

FN59. See id. at 40-41; Memorandum for the President (Jan. 13, 1945) (Rosenman Papers War Crimes) (regarding the 
trial and punishment of European War Criminals), reprinted in B. SMITH, supra note 20, at 98-105. 

FN60. See, e.g., supra notes 5-6. 

FN61. Draft Memorandum for the President from the Secretaries of State, War and Navy (Nov. 11, 1944) (Rosenman 
Papers War Crimes) (regarding the trial and punishment of European War Criminals), reprinted in B. SMITH, supra 
note 20, at 41-44. 

FN62. The Bernays Plan, supra note 24, at 35-36. 

FN63. Id. at 37. 

FN64. Id. at 34. 

FN65. Id. 

FN66. Id. at 34-35. 

FN67. See id. at 38. 

FN68. B. SMITH, supra note 20, at 10. 

FN69. See, e.g., Memorandum from the Judge Advocate General to the Assistant Secretary of War (Nov. 22, 1944), 
reprinted in B. SMITH, supra note 20, at 58-61; Questions Posed by Major General Weir to Edmund M. Morgan, 
Acting Dean of Harvard Law School, and Former Lieutenant Colonel, Judge Advocate Generalis Dept., U.S.A. (Jan. 
12, 1945) [hereinafter Davies Papers] (known as the Joseph E. Davies Papers), reprinted in B. SMITH, supra note 20, 
at 105. 

FN70. The Bernays Plan, supra note 24, at 34; Davies Papers, supra note 69, at 106-07. 
FN71. See infra notes 211-23 and accompanying text. 

FN72. Cover letter from Henry L. Stimson to John J. McCloy accompanying Memorandum on Aggressive War by 
Colonel William Chanler (Nov. 28/30, 1944), reprinted in B. SMITH, supra note 20, at 68-69. 

FN73. See infra note 210. 

FN74. R. JACKSON, supra note 1, at vii. 






FN75. Id. at iii, 36, 69. 

FN76. E.g., Memorandum from the Assistant Attorney General (Herbert Wechsler) to the Attorney General (Francis 
Biddle) (Dec. 29, 1944), reprinted in B. SMITH supra note 20, at 84. This document, penned by Assistant Attorney 
General Herbert Wechsler, was severely critical of the War Departments plan as an attempt to apply ex post facto law 
and was especially critical of the conspiracy Charge because it was virtually unknown outside of the Anglo-American 
legal System. It is perhaps ironic that the War Department was championing the most pacifistic response to Nazi 
crimes. It is also worth noting that Wechsler later became a strong supporter of the trials and served as an aide to the 
United States* member of the Tribunal at Nuremberg. 



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FN77. B. SMITH, supra note 20. at 52; A. TUSA & J. TUSA. supra note 20, at 50, 365. 
FN78. Id. 

FN79. The Conferences at Malta and Yalta, in FOREIGN RELATIONS OF THE UNITED STATES 401 (U.S. Dept. 
of State Comp. 1945). 

FN80. See B. SMITH, supra note 20, at 93-117 (various memoranda and letters dated January, 1945). 

FN81. See infra notes 192-257 and accompanying text. 

FN82. The Three Secretaries Memo, supra note 15, at 9. 

FN83. Id. at6. 

FN84. Id. at 7. 

FN85. 49 STIMSON DIARIES, supra note 42, at 57-58 (entry of Jan. 19, 1935). 

FN86. A. TUSA & J. TUSA, supra note 20, at 63. 

FN87. R. JACKSON, supra note 1, at 18 (quoting Aide-Memoire from the United Kingdom (Apr. 23, 1945)) 
("execution without trial is the preferable course"'). 

FN88. 3 FOREIGN RELATIONS OF THE UNITED STATES 1158-61 (Apr. 6, 1945) (U.S. Dept. of State Comp. 
1968). 

FN89. Exec. Order No. 9547, 3 C.F.R. 378 (1943-1948), reprinted in R. JACKSON, supra note 1, at 21. 

FN90. See A. TUSA & J. TUSA, supra note 20, at 66-67. 

FN91. See B. SMITH, supra note 20, at 149-52. 

FN92. See R. CONOT, supra note 5, at 15. 

FN93. Report to the President by Mr. Justice Jackson (June 6, 1945), reprinted in R. JACKSON, supra note 1, at 42- 
54. 

FN94. Id. at 51 (quoting The Fourth Hague Convention). 

FN95. Colonel Taylor had previously been assigned to process information for the United States from intelligence that 
had been gathered by the British. Id. at 16. Taylor would soon be promoted to the rank of Brigadier General and 
serve as associate trial counsel to Justice Jackson at the Trial of the Major War Criminals. 1 IMT, supra note 5, at 1. 

FN96. See Taylor, An Approach to the Preparation of the Prosecution of Axis Criminality, reprinted in B. SMITH, 
supra note 20, at 209-12. 

FN97. Id. at 210. 

FN98. See American Memorandum Presented at San Francisco (Apr. 30, 1945), reprinted in R. JACKSON, supra note 
l,at 34-35. 






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FN99. See B. SMITH, supra note 20, at 210-11. 

FNIOO. Id. at211. 

FNlOl.Id. 

FN102. Id. at212. 

PN 103. London Agreement of August 8, 1945 [hereinafter The Agreement], reprinted in 1 IMT, supra note 5, at 8; 
Charter of the International Military Tribunal [hereinafter The Nuremberg Charter], reprinted in 1 IMT, supra note 5, 
at 10 (The Treaty of London includes both the Agrement by the Government of the United States of America, the 
Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern 
Ireland, and the Government of the Union of Soviet Socialist Republics, for the Prosecution and Punishment of the 
Major War Criminals of the European Axis and the Charter of the International Military Tribunal.); see also R. 
JACKSON, supra note 1, at 420 (The Agreement); id. at 422 (The Nuremberg Charter). 

FN104. The Nuremberg Charter, supra note 103, at 16 (art. 24(g)) ("[t]he Prosecution and the Defense shall 
interrogate and may cross-examine any witnesses and any defendant who gives testimony"' reflecting Anglo-American 
procedure); id. at 16 (art. 24(j)) ("[e]ach Defendant may make a Statement to the Tribunal"' reflecting the Continental 
practice); R. JACKSON, supra note 1, at 428. 

FN105. See supra notes 56-66 and accompanying text. Though Jackson modified the Bernays Plan so that the 
conspiracy charges were not as paramount as they once were, they still represented a major part of the plan Jackson 
embraced. 

FN106. R. CONOT, supra note 5, at 21-23; R. JACKSON, supra note 1, at vii. 

FN107. See, e.g., supra note 59 and accompanying text. 

FN108. Included in the defmition of Crimes Against Peace in The Nuremberg Charter is, "[P]articipation in a Common 
Plan or Conspiracy for the accomplishment of any of the foregoing."' The Nuremberg Charter, supra note 103, at 11 
(art. 6(a)). Article 6 concludes, "Leaders, Organizers, instigators, and accomplices participating in the formulation or 
execution of a Common Plan or Conspiracy to commit any of the foregoing crimes are responsible for all acts 
performed by any persons in execution of such plan."' Id. 

FN109. See supra notes 72-73 and accompanying text; infra note 210. 

FNllO. See infra notes 210-31 and accompanying text. 

FNlll. The Nuremberg Charter, supra note 103, at 11. 

FN112. Minutes of Conference Session (July 23, 1945), reprinted in R. JACKSON, supra note 1, at 328; Redraft of 
Defmition of "Crimes,"' Submitted by Soviet Delegation, (July 25, 1945), reprinted in R. JACKSON, supra note 1, at 
373. 

FN113. See generally W. SHIRER, supra note 8, at 685-705 (discussing the Ribbentrop-Molotov pact, which 
represented the agreement between the Germans and the Russians to partition Poland and divide the rest of eastern 
Europe into a Russian and a German sphere of influence). 

FN114. The Nuremberg Charter, supra note 103, at 11 (art. 6). 



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FN115. Id. (art. 6(b), (c)) (amended by the Protocol of Oct. 6, 1945). 

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FN116. The Nuremberg Charter, supra note 103, at 12 (art. 7). 



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FN117. Id. atl2(art. 8). 

FN118. Id. atl2(arts. 9, 10). 

FN119. Id. atl2(arts. 9, 10, 11). 

FN120. R. CONOT, supra note 5, at 19. 

FN121. By agreeing to name Berlin as the permanent seat of the Tribunal and specifying Nuremberg as the site of the 
first trial, the Soviets were mollified. The Nuremberg Charter, supra note 103, at 15 (art. 22); R. CONOT, supra note 
5, at 19, 21. 

FN122. R. CONOT, supra note 5, at 26-28. 

FN123. R. JACKSON, supra note 1, at 433. 

FN124. Id. 

FN125. See 1 IMT, supra note 5, at 24 (Minutes of the Opening Session of the Tribunal); id. at 27 (The Indictment). 

FN126. Id. at 25. 

FN127. See supra note 45 and accompanying text. 

FN128. See Memorandum from Lord Chancellor Simon to J. Rosenman (Apr. 16, 1945), reprinted in B. SMITH, 
supra note 20, at 150; Simon, The Argument for Summary Process Against Hitler & Co., reprinted in B. SMITH, 
supra note 20, at 155. 

FN129. Id. at 49-53, 87. 

FN130. See supra notes 128-29. 

FN131. See infra notes 192-96, 198-204, 252-56 and accompanying text. 

FN132. 1 IMT, supra note 5, at 29. 

FN133. Id. at42. 

FN134. 3 id. at 142-45. 

FN135. A. NEAVE, ON TRIAL AT NUREMBERG 247 (1978); see also R. CONOT, supra note 5, at 148-49 
(describing the film of concentration camp conditions and its effect on courtroom observers). 

FN136. A. NEAVE, supra note 135, at 247. 

Neave, who had studied in Germany, had been captured by the Wehrmacht during the fighting in France in 1940, 
but two years later had escaped firom Colditz prison, and was one of the relatively few men who succeeded in 
making his way back to England. He later was elected to Parliament and became a key adviser to Prime Minister 
Margaret Thatcher. He was killed in 1980 by a bomb planted in his car by the Irish Republican Army. 






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R. CONOT, supra note 5. at 78 n. *. 

FN137. 9 IMT, supra note 5, at 538. 

FN138. 22id. at535. 

FN139. 1 id. at 285-86 (von Ribbentrop found guilty of deceitfül and illegal planning of aggression); id. at 333-34 (von 
Neurath found guilty of the same charges). 

FN140. 1 id. at 249; 9 id. at 545; 12 id. at 100; 13 id. at 170-79; 16 id. at 65; L. DAWIDOWICZ, supra note 7, at 
139. 



* 



FN141. See 3 IMT, supra note 5, at 415-601. 

FN142. 4 NAZI CONSPIRACY, supra note 5, at 883-918 (several excerpts from the diary). 

FN143. Id. 

FN144. 12 IMT, supra note 5, at 8, 33, 36, 38-39. 

FN145. Id. at8-ll. 

FN146. Id. atll. 

FN147. 1 id. at 296-98. 

FN148. 10 id. at 615-16; 22 id. at 537; 4 NAZI CONSPIRACY, supra note 5, at 59, 61-62. 

FN149. 15 IMT, supra note 5, at 410. 

FN150. 22 id. at 534-35. 

FN151. 4 id. at333; 15 id. at410; 22 id. at21. 

FN152. 4 id. at 316-17, 333, 477; 22 id. at 287. 

FN153. 3 NAZI CONSPIRACY, supra note 5, at 597-99. 

FN154. Id. at 598. 

FN155. Id. at 86; 15 IMT, supra note 5, at 551 (Defendant, Jodl, acknowledges that 35,000 Jews were killed at 
Kiev.); 21 id. at 4 (According to the Russian prosecutor, 195,000 residents of Kiev were murdered, including 100,000 
at Babi Yar.). 

FN156. L. DAWIDOWICZ, supra note 7, at 139-40. 

FN157. In pre-war Germany, the Nazis established concentration camps as sites to detain political prisoners in 
"protective custody,"' a phrase which meant the detainees had not committed any crimes, but were being detained to 
prevent them from doing so. Jews were also detained in concentration camps during this period. R. HILBERG, THE 
DESTRUCTION OF THE EUROPEAN JEWS 863-65 (1985). In 1941, concrete plans were made to institute the so 
called Tmal Solution "'-the extermination of all of the Jews in Europe. L. DAWIDOWICZ, supra note 7, at 129-30, 
135-36; R. HILBERG, supra, at 863-989. 






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FN158. See, e.g.. R. HELBERG, supra note 157, at 1201-20 (1985) (most reputable studies utilizing various methods 
of calculation agree that there were between 5 and 6 million Jewish victims); 8 IMT, supra note 5, at 330 (340,000 
men, women, and children were exterminated at Helmno, and an estimated 781,000 victims were murdered at 
Treblinka); 22 id. at 496 (six million Jews were murdered by the Nazis, four million of these were in extermination 
institutions); see also L. DAWIDOWICZ, supra note 7, at 402-03 (reporting the estimated Jewish population 
annihilated in each country); 3 IMT, supra note 5, at 556 (discussing the killing of Jews in the Warsaw Ghetto). 

FN159. See, e.g., R. HILBERG, supra note 157, at 970; 6 IMT, supra note 5, at 214, 216, 244. 

FN160. See, e.g., 3 IMT, supra note 5, at 462; 6 id. at 33; see also R. HILBERG, supra note 157, at 917-36 
(discussing how the SS used the Jews in concentration camps to fill the labor shortage in Europe); 1 IMT, supra note 
5, at 246 (concentration camp Commanders were ordered to work the prisoners to the limits of their physical power); 3 
id. at 461 (purpose of concentration camps changed from custody of prisoners to economic utilization of labor). 

FN161. R. HILBERG, supra note 157, at 910; 6 IMT, supra note 5, at 296; 7 id. at 578. 

FN162. See R. HILBERG supra note 157, at 904-05; 12 IMT, supra note 5, at 257. 

FN163. R. HILBERG, supra note 157, at 973-74. 

FN164. L. DAWIDOWICZ, supra note 7, at 139; 13 IMT, supra note 5, at 170-79. 

FN165. L. DAWIDOWICZ, supra note 7, at 147; R. HILBERG, supra note 157, at 947-61, 976, 983; 13 IMT, supra 
note 5, at 170-79 (the victim*s clothing was not sent to the Reichsbank along with their valuables, but was distributed to 
the general German population by German relief agencies); 12 id. at 100-02; 13 id. at 170-79; 16 id. at 65. 

FN166. 22 IMT, supra note 5, at 551. 

FN167. The Nuremberg Charter, supra note 103, at 12 (art. 7). 

FN168. Id. at 12 (arts. 7, 8). 

FN169. R. CONOT, supra note 5, at 455. 

FN170. The Nuremberg Charter, supra note 103, at 12 (arts. 9, 10); 1 IMT, supra note 5, at 28. 

FN171. R. CONOT, supra note 5, at 455-57. 

FN172. Id. 

FN173. 8 IMT, supra note 5, at 434-35 (To avoid injustice, the prosecution was prepared to allow accused members of 
a guilty Organization to plead ignorance of the criminal aims of the Organization as a defense in subsequent trials.). 

FN174. 22 IMT, supra note 5, at 410. 

FN175. R. CONOT, supra note 5, at 482. 

FN176. Id. 






FN177. Although Parker was an altemate, this did not prevent him from participating in the deliberations. All of the 
alternates were seated at the bench throughout the trial and ftilly participated in all deliberations. However, they did 
not vote on sentencing. See R. CONOT, supra note 5, at 85. 



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FN178. Id. at483. 

FN179. Id. 

FN180. Id. 

FN181. Rudolf Hess was the exception. He was the vice-chancellor of the Reich. On his own initiative, he flew a 
Messerschmitt 110 fighter plane to Scotland in 1941 to negotiate a peace treaty with Great Britain. The British captured 
him and held him prisoner until the end of the war. W. SHIRER, supra note 8, at 1094-99. Hess has been portrayed in 
many accounts as extremely paranoid and probably insane. See, e.g., R. CONOT, supra note 5, at 46-47; A. NE AVE, 
supra note 135, at 315-16; A. TUSA & J. TUSA, supra note 20, at 161-63; R. WEST, A TRAIN OF POWDER 5 
(1955). The Tribunal decided that Hess was fit to stand trial only after ordering a thorough Psychiatric examination and 
hearing evidence concerning his capacity to stand trial. A. TUSA & J. TUSA, supra note 20, at 161-63. 

FN182. R. CONOT, supra note 5, at 484-85. 

FN183. Id. 

FN184. Id. 

FN185. Id. 

FN186. 1 IMT, supra note 5, at 267-68. 

FN187. Id. 

FN188. Id. at 261-62. 

FN189. Id. at 273. 

FN190. Id. at 256. 

FN191. Id. at 365-67. The United States conducted 185 additional prosecutions. A number of successor trials were 
also conducted in lands liberated from Germany. However, public interest waned by 1950 and half of the SS leaders 
were never tried. R. CONOT, supra note 5, at 518. While the United States charged 3 1/2 million Germans with Nazi 
crimes, they tried less üian 1 million of them and sentenced less than 10,000 to prison. By 1949, only 300 Nazi 
criminals remained in prison. Id. (The cold war and McCarthyism contributed to the American govemment's lack of 
interest in fiirther prosecutions. Many people were more concerned with battling the Russians than with prosecuting 
Nazis.) 

FN192. See The Bemays Plan, supra note 24, at 36; supra notes 60-63, 95-102 and accompanying text. 

FN193. 1 IMT, supra note 5, at 187-218. 

FN194. Id. at 216-20. 

FN195. Id. at 219, 221-22. 

FN196. See infra notes 198-209 and accompanying text. 

FN197. See infra notes 304-481 and accompanying text. 



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FN198. Following the Trial of the Major War Criminals, the United States, under the auspices of Allied Control 
Council Law No. 10 as provided in the Charter, held 12 subsequent trials at Nuremberg. The transcripts and decisions 
of these cases are reproduced in 1-12 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY 
TRIBUNALS (1946-49) (1949-53). 

FN199. The Nuremberg Charter, supra note 103, at 14 (art. 16(a)-(e)). 

FN200. Id. at 14 (art. 16(a)). 

FN201. Id. (art. 16(a), (c)). 

FN202. Id. at 16 (art. 24(j)). 

FN203. Id. at 14 (art. 16(d)). 

FN204. Id. (art. 16(a)-(e)). 

FN205. 9 IMT, supra note 5, at 662-67. 

FN206. Id. at 673. 

FN207. See, e.g., Haensel, The Nuremberg Trial Revisited, 13 DE PAUL L.REV. 248, 258 (1964); Pannenbecker, 
The Nuremberg War-Crimes Trial, 14 DE PAUL L.REV. 348, 350, 356 (1965). 

FN208. Pannenbacker, supra note 207, at 350. 

FN209. Id. at 356. 

FN210. 2 T. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 311 (7th ed.l923); L. OPPENHEIM, 
INTERNATIONAL LAW 144-45 (6th ed.l944); 2 J. WESTLAKE, INTERNATIONAL LAW 4 (2d ed.l913); 2 H. 
WHEATON, ELEMENTS OF INTERNATIONAL LAW 368, 373-74 (8th ed. 1986). 

FN211. R. JACKSON, supra note 1, at 42. 

FN212. Hugo Grotius (1583-1645) was a Dutch scholar and diplomat. Id. at 5. 

FN213. H. GROTIUS, THE RIGHTS OF WAR AND PEACE (DE JURE BELLI ET PACIS) 36, 267-73, 314-22 
(1623) (A.C. Campbell trans.1901). 

FN214. M. DE VATTEL, THE LAW OF NATIONS 209 (J. Chitty trans.1883). 
FN215. R. JACKSON, supra note 1, at 52. 

FN216. See infra notes 342-62 and accompanying text. (This doctrine, along with its companions of nationalism and 
militarism, supported policies of aggressive colonial expansion in the nineteenth Century. Following World War II and 
the discrediting of these doctrines at Nuremberg, colonial policies feil into disfavor.). 

FN217. See infra notes 342-62 and accompanying text. 

FN218. 1 IMT, supra note 5, at 216. 

FN219. Id. at 217-18; 3 id. at 186-87. 



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FN220. 1 id. at 218-20. 



FN221.Id. at217. 



FN222. Id. 



FN223. E.g., id. at 36-37. Hitler and von Ribbentrop negotiated for peace even though they had already made a final 
decision to invade, had drawn up specific battle plans, and had ordered troops poised and ready. They negotiated in an 
attempt only to secure a peacefiil acquiescence or to disguise their aggressive intentions. Id. 

FN224. Memorandum for the Judge Advocate General (Dec. 1944), reprinted in B. SMITH, supra note 20, at 78, 81. 

FN225. W. LA FAVE & A. SCOTT, CRIMINAL LAW 64 (2d ed. 1986). 

FN226. 11 F.Cas. 1099 (C.C.D.Pa.l793) (No. 6,360). 

FN227. Id. atll04. 

FN228. W. LA FAVE & A. SCOTT, supra note 225, at 74. 

FN229. Id. at 74 n. 87 (quoting Robert Jackson). 

FN230. R. JACKSON, supra note 1, at 37. 

FN231. 1 IMT, supra note 5, at 221. The Allies also argued that they had given fair notice to the defendants by 
previously waming the Nazi perpetrators of their intention to punish them for the crimes they were committing. See 
supra notes 15-16 and accompanying text. 

FN232. Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804) (naval ship captain illegally seized another ship believing 
he was executing the Orders of his superior). 

FN233. 54 U.S. (13 How.) 115, 137 (1851). 

FN234. See T. TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY 45-46 (Bantam ed.l971); 
see also H.R.EXEC.DOC. NO. 1381, 40th Cong., 2d Sess. 8 (1868); A. ROACH, THE PRISONER OF WAR AND 
HOW TREATED (1865). 

FN235. T. TAYLOR, supra note 234, at 45. 

FN236. Id. 

FN237. Id. 

FN238. Id. 

FN239. Id. at 46. 

FN240. United States v. Calley, 48 C.M.R. 19 (1973) (quoting W. WINTHROP, MILITARY LAW 296-97 (2d 
ed. 1920)). 

FN241. T. TAYLOR, supra note 234, at 47 (quoting Article 47 of the German Military Renal Code of 1872). 



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FN242. A. TUSA & J. TUSA, supra note 20. at 18. 

FN243. Id. at 19. 

FN244. Id. 

FN245. Henfield's Gase, 11 F.Cas. 1099 (CCD. Pa 1793) (No. 6,360). 

FN246. Id. 

FN247. Id. at 1104. 



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FN248. Underhill v. Hernandez, 168 U.S. 250, 252 (1897). 

FN249. The crime of conspiracy was controversial because it was a novel concept in international law. See supra notes 
74, 175-81 and accompanying text. The Tribunal, and especially the Continental judges, feh uncomfortable applying it. 
Therefore, although it was designed to have a broad application, the judges actually applied the conspiracy Charge the 
most narrowly of all the charges. See supra note 180 and accompanying text. This was followed in the American 
successor trials under Control Council Law No. 10 as well. Taylor, supra note 10, at 345; see also supra note 74 and 
accompanying text (the conspiracy doctrine was only recognized in the Anglo-American legal System). 

FN250. Memorandum from the Assistant Attorney General (Herbert Wechsler) to the Attorney General (Francis 
Biddle) (Dec. 29, 1944), reprinted in B. SMITH, supra note 20, at 84-90. 

FN251. See supra notes 6-12 and accompanying text. As Sir Hartley Shawcross said in his opening Statement on behalf 
of the British prosecution of Count Two: 

If murder, rapine, and robbery are indictable under the ordinary municipal laws of our countries, shall those who 
differ from the common criminal only by the extent and systematic nature of their offenses escape accusation? . . . 
can it really be said on behalf of these defendants that the offense of these aggressive wars, which plunged millions 
of people to their death, which . . . brought about the torture and extermination of countless thousands of innocent 
civilians . . . which has brought the world to the brink of ruin . . . will it seriously be said by these defendants that 
such a war is only an offense, . . . but not a crime justiciable by any tribunal? . . . if this be an innovation, it is an 
innovation which we are prepared to defend and to justify, but it is not an innovation which creates a new crime. 

3 IMT, supra note 5, at 92, 104, 106. 

FN252. See supra note 102 and accompanying text. 

FN253. Taylor, An approach to the Prosecution of Axis Criminality (June 1945), reprinted in B. SMITH, supra note 
20, at 209-12. 

FN254. R. CONOT, supra note 5, at 491. 

FN255. See supra note 1 and accompanying text. 

FN256. 5 IMT, supra note 5, at 426. 






FN257. See infra notes 258-303 and accompanying text. 

FN258. Herbert Weschler, a United States Assistant Attorney General who helped formulate American policy 
regarding the Trial of the Nazi War Criminals and an aide to Francis Biddle at Nuremberg, advances a response to the 



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allegations of "'victor's justice."' He argues that the claim is no different than claiming a govemment has no right to 
prosecute an individual for the crime of treason. If die traitor succeeds, die State does not have coercive power over die 
traitor, and dius could not punish die individual. Similarly, if die Nazis had won die war, die Allies would not have had 
coercive power over diem, and would not have been able to punish diem. However, failure makes die traitor 
susceptible to punishment. The Nazis' susceptibility to punishment was likewise contingent on their failure to win the 
war, but diis does not make dieir punishment any more unjust. Therefore, it was not unjust to punish die Nazis. 

However, Wechsler acknowledges die injustice of not prosecuting die Allies for war crimes which diey committed. 
Aldiough it cannot reasonably be argued diat die Allies committed crimes on a scale diat compared to diose of die 
Nazis, die Allies did commit certain atrocities diat were not prosecuted. Wechsler, who is troubled by diis fact, 
believes diat we are consequendy obliged to build a just world in die ftiture widi strong international institutions diat 
will embody die Nuremberg principles. H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW 
138-57 (1961). 

FN259. At diis point it is appropriate to discuss die 12 successor trials held at Nuremberg. The four powers who 
convened die Tribunal at Nuremberg were die same four powers who shared occupation duties in Germany after die 
war. Taylor, supra note 10, at 254. They administered occupied Germany by a Control Council which represented die 
four powers. Id. at 272. The Council passed Control Council Law No. 10, which audiorized each of die four powers to 
hold furdier trials according to die law and procedure contained in die Nuremberg Charter widi slight modifications. 
Id. at 273-74. The United States subsequendy held anodier twelve trials at die Palace of Justice in Nuremberg, which 
was widiin die zone occupied by die United States. Id. at 255. These trials also involved multiple defendants, but each 
trial pertained to die same general set of facts. Id. at 278-79. For instance, one trial consisted exclusively of judges 
who had served die Nazi regime. Anodier proceeding tried industrialists and fmanciers, and anodier prosecuted 
members of die SS and Police. Id. at 279. These trials tended to reiterate die principles of die first trial, but, in some 
instances, principles were furdier fleshed out and sometimes modified as a result of diese proceedings. The principles 
which I discuss in Section V are diose of die International Military Tribunal as well as diese American successor trials. 
See Taylor, supra note 10. 

FN260. See Frowein, Jus Cogens, in ENCYCLOPEDL\ OF PUBLIC INTERNATIONAL LAW, installment 7 at 327 
(1984). 

FN261. E.g., The Vienna Convention on die Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332 [hereinafter The 
Vienna Convention]; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED 
STATES §§ 102 comment k, 331(2)(b), comment e (1987) [hereinafter THE RESTATEMENT]. 

FN262. The Vienna Convention, supra note 261, at art. 53. 

FN263. THE RESTATEMENT § 702 comment n, reporter's note 11. 

FN264. See generally Sohn, The New International Law: Protection of die Rights of Individuais Radier dian States, 32 
AM.U.L.REV. 1 (1982) (tracing die concerns of international law widi die rights of die individual from Nuremberg 
dirough 1982). 

FN265. THE RESTATEMENT, supra note 261, pt. m, at 144-45 (Introductory Note). 

FN266. Casto, The Federal Courts' Protective Jurisdiction Over Torts Committed in Violation of die Laws of Nations, 
18 CONN.L.REV. 467, 480-81 (1986). 

FN267. See The Nuremberg Charter, supra note 103. at 11 (art. 6). 

FN268. See Ex Parte Quirin, 317 U.S. 1 (1942) (a trial of German spies by die United States). 



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FN269. The Nuremberg Charter, supra note 103, at 12 (art. 7). 



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FN270. See infra notes 376-82 and accompanying text. 

FN271. 1 IMT, supra note 5, at 27. 

FN272. R. CONOT, supra note 5, at 76-77; A. TUSA & J. TUSA, supra note 20, at 138-40. 

FN273. United States v. Flick, in 6 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY 
TRIBUNALS 1192 (1952) (commonly known as The Flick Gase); 1 IMT, supra note 5, at 223. 

FN274. United States v. Altstoetter, in 3 TRL\LS OF WAR GRIMINALS BEFORE THE NUREMBERG MILITARY 
TRIBUNALS 972-73, 984 (1951) (commonly known as The Justice Gase). 

FN275. Due to the events of Nuremberg, several other specific precepts have found their way into the body of 
international law. There is no need to provide an exhaustive list; suffice it to say that Nuremberg was fertile ground 
from which a number of humanitarian principles grew. Later in this Note, I will introduce some of these additional 
principles as they relate to specific subtopics. Some of the other principles are: 

- the oath of loyalty, as a shield for misconduct, has no credence; 

- a head of State has no immunity regarding the commission of crimes against peace and crimes against humanity; 

- a government may not pass an evil law and then rely on it as a justification for evil behavior; 

- racial politics is discredited and persecution against minorities is outlawed; 

- organizations which are part of a common criminal plan may be declared illegal (however, the consequences for 
the individual members are ambiguous); 

- fraud in diplomacy is a crime. 

FN276. See L. GOODRIGH, E. HAMBRO & A. SIMONS, GHARTER OF THE UNITED NATIONS 2, 3 (3d 
ed. 1969); supra notes 16-19 and accompanying text. 

FN277. B. SMITH, supra note 20, at 139, 140. 

FN278. U.N. GHARTER art. 1, para. 3; 1946-1947 U.N.Y.B. 831. 

FN279. The Nuremberg Gharter, supra note 103, at 11 (art. 6(c)) (defmition of Grimes Against Humanity). 

FN280. U.N. GHARTER art. 2, para. 4; 1946-1947 U.N.Y.B. 831. 

FN281. 1946-1947 U.N.Y.B. 254. 

FN282. The Universal Declaration of Human Rights, G.A.Res. 217 (III)A (Dec. 10, 1978), reprinted in 1948-1949 
U.N.Y.B. 535. 

FN283. Id. 






FN284. Gonvention on the Prevention of die Grime of Genocide, G.A.Res. 260 (III) A, B, G (Dec. 9, 1948), reprinted 
in 1948-1949 U.N.Y.B. 959-60; International Govenant on Givil and Political Rights, G.A.Res. 2200A, 21 U.N. 



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GAOR Supp. (No. 16) (1496th plen.mtg.) at 52-58, U.N.Doc. A/6316 (1966); The International Covenant on 
Economic, Social, and Cultural Rights, G.A.Res. 2200A, 21 U.N. GAOR Supp. (No. 16) (1496th plen.mtg.) at 49-52. 
U.N.Doc. A/6316 (1966); Covenant on the Elimination of All Forms of Racial Discrimination, opened for signature 
Mar. 7, 1966, 660 U.N.T.S. 212 (entered into force Jan. 4, 1969). 

FN285. See infra notes 286-303 and accompanying text. 

FN286. The Statute lists the sources in notice as to what sources it will draw from when adjudicating a conflict. See 
1946-1947 U.N.Y.B. 843, 847. 

FN287. Id. 

FN288. See e.g., The Paquete Habana, 175 U.S. 677 (1900). 

FN289. 18 U.S. (5 Wheat.) 153 (1820). 

FN290. Id. at 160-61. 

FN291. Nov. 4, 1950, 213 U.N.T.S. 222. 

FN292. O.A.S. Official Records, OEA/Ser.K/XVI/1.1, Doc. 65 Rev. 1, Corr. 1 (Jan. 7, 1970), reprinted in 9 INT'L 
LEGAL MATERL\LS 99 (1970). 

FN293. See Walsh, The European Court of Human Rights, 2 CONN.J. INT'L L. 271, 283-84 (1987). 

FN294. Buergenthal, Human Rights in the Americas: View from the Inter-American Court, 2 CONN.J. INT'L L. 303, 
308 (1987). 

FN295. Id. at 307. 

FN296. Grundgesetz [GG] Art. 25 (W.Ger.). 

FN297. Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 
VA.L.REV. 1071, 1151-52 (1985). 

FN298. G.A.Res. 39 U.N.GAOR.Supp. (no. 51) at 197, U.N.Doc. A/39/51 (1985). Although the United States signed 
the treaty in April of 1988, it still awaits Senate ratification. L.A. Times, May 5, 1988, § 2, at 9, col. 1; L.A. Daily J., 
Feb. 20, 1990, at 6, col.l. 

FN299. Hague Convention on Land Warfare of 1907. 

FN300. Geneva Convention of 1929. 

FN301. Geneva Convention of 1949. 

FN302. Geneva Convention of 1949 (Protocols I and II). 

FN303. Many commentators agree with this conclusion. E.g., I. BROWNLIE, INTERNATIONAL LAW AND THE 
USE OF FORCE BY STATES (1963); Boyle, The Relevance of International Law to the "Paradox"' of Nuclear 
Deterrence, 80 NW.U.L.REV. 1407. 1416 (1986); see also Lobel, supra note 298, at 1143 (listing examples of 
international treaties which criminalize State conduct). 






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FN304. See infra notes 318, 327, 338-47 and accompanying text. 

FN305. See e.g., infra notes 348-53, 401-81 and accompanying text. 

FN306. See Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 
STAN.L.REV. 843 (1978); Lobel, supra note 297, at 1076-97; see also J. ELY, DEMOCRACY AND DISTRUST 34- 
41 (1980) (arguing that the Bill of Rights presumes that basic ftindamental rights exist a la natural law in addition to 
those specifically enumerated); L. TRTOE, AMERICAN CONSTITUTIONAL LAW 569-70 (1978) (standing for die 
same proposition); Henkin, Rights: American and Human, 79 COLUM.L.REV. 405, 409 (1979) (standing for the same 
proposition). But see Berger, The Ninth Amendment, 66 CORNELL L.REV. 1 (1980) (arguing that no such 
ftindamental rights exist); Bork, The Impossibility of Finding Weifare Rights in the Constitution, 1979 WASH.U.L.Q. 
695, 696-97 (also pronouncing that no fundamental rights exist). 

FN307. See infra notes 312-18 and accompanying text. 

FN308. E.g., B. BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 188 (1967); 
Lobel, supra note 297, at 1079. 

FN309. "The law of Nature Stands as an eternal ruie to all men, legislators as well as others."' J. LOCKE, TWO 
TREATISES OF CIVIL GOVERNMENT 185 (Everyman's Library ed.l962). 

FN310. 77 Eng.Rep. 377 (C.P.1607). 

FN311. Id. at 282-83. 

FN312. The Gase of die Postnati, 2 HowelFs State Trials 559, 670 (Ex.Ch.l608) (Lord Ellesmere), quoted in Lobel, 
supra note 298, at 1082; see also Heathfield v. Chilton, 98 Eng.Rep. 50, 50 (K.B.1767) (Judge Mansfield) ("[T]he law 
of nations . . . is [a] part of die common law of England. And [an] Act of Parliament [cannot] alter die law of 
nations."'). 

That die common law includes international law is clear from many early American decisions as well: "[t]he Statute 
law of England interposes to aid and enforce die law of nations as a part of die common law, by inflicting an 
adequate punishment for offenses against diat universal law . . . ."' United States v. Smidi, 18 U.S. (5 Wheat.) 153, 
163 n. a (1820) quoting 4 W. BLACKSTONE, COMMENTARIES ON THE LA WS OF ENGLAND 73 (1966) 
(emphasis deleted)). 

FN313. United States v. Coolidge, 25 F.Cas. 619, 619 (C.C.D.Mass.l813) (No. 14,857). 
FN314. Id. 

FN315. W. LA FAVE & A. SCOTT, supra note 225, at 68; see supra note 312 and accompanying text; infra note 318 
and accompanying text. 

FN316. Lobel, supra note 247, at 1082. 

FN317. 18 U.S. (5 Wheat.) 153 (1820). 

FN318. Id. at 163. 



4^^. 

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FN319. See infra notes 325-41 and accompanying text. 

FN320. For a ftiller development of diis argument, see Lobel, supra note 297, at 1084-90. 

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FN322. See generally Lobel, supra note 297, at 1094 (ftirther infomiation on debates in Virginia and other Southern 
States). 

FN323. E.g., THE FEDERALIST NO. 64, at 437-38 (J.Jay) (J. Cooke ed.l961); id. No. 83, at 568 (A. Hamilton). 
FN324. See supra notes 306-23 and accompanying text. 
FN325. U.S. CONST. art. VI, cl. 2. 



® 



FN326. U.S. CONST. art. VI, cl. 2. 

FN327. Amaya v. Stanolind Oil & Gas Co., 331 U.S. 808, reh'g denied, 331 U.S. 867 (1947); Z. & F. Assets 
Realization Corp. v. Hüll, 114 F.2d 464 (D.C.Cir.l940), affd, 311 U.S. 470 (1941); Holguin v. Elephant Butte 
Irrigation Dist., 91 N.M. 398, 575 P.2d 88 (1977). 

FN328. U.S. CONST. art. n, § 2, cl. 2. 

FN329. Weinberger v. Rossi, 456 U.S. 25 (1982). 

FN330. U.S. CONST. art. IE, § 2, cl. 1. 

FN331. British Caledonian Airways, Ltd. v. Bond, 665 F.2d 1153, 1160 (D.C.Cir.l981); see Kolovrat v. Oregon, 366 
U.S. 187, 194 (1961) ("Courts interpret treaties for themselves . . . r), 

FN332. Id. 

FN333. See infra note 345 and accompanying text. 

FN334. Sometimes executive agreements are just as binding as treaties ratified by the Senate. THE RESTATEMENT, 
supra note 261, § 303(2)-(4). In many instances, arguing that a treaty is not binding for the sole reason that it was not 
ratified by the Senate will not be convincing because "[a] State may not invoke a violation of its internal law to vitiate 
its consent to be bound [to a treaty] unless the violation was manifest and concemed a rule of ftindamental 
importance."' Id. at § 311(3). 

This means that a nation may still be bound by its agreements with foreign nations even if the agreements were not 
made in accordance with the nation's domestic law, unless the defect was obvious to the other party. Specifically, 

-all States may be presumed to know that die President of the United States cannot make a treaty without the 
consent of the Senate .... The President has authority, however, to make many international agreements pursuant 
to treaty or Congressional authorization . . . or on his own authority . . . and since the circumstances in which 
Senate consent is essential are uncertain, improper use of an executive agreement in Heu of a treaty would 
ordinarily not be a 'manifest* violation. "DD' 

Id. comment c. In these situations, the executive agreement should have the same binding power as a lawfully 
enacted treaty would. Moreover, executive agreements made pursuant to a prior treaty or congressional 
authorization are held to be self-executing if the treaty or legislation authorizing the agreement Supports that 
Interpretation. Accordingly, such agreements will immediately supersede prior legislation in the same manner tiiat a 
treaty does. United States v. Belmont, 301 U.S. 324, 331 (1937). 

On the other band, the United States Supreme Court has affirmed that executive agreements which are made solely on 



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the authority of the President without a prior treaty or congressional legislation to authorize them will be binding, but 
will not supersede prior relevant legislation. United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir.1953), 
afTd, 348 U.S. 296 (1955); see also South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 634 
(Ct.C1.1964), cert. denied, 379 U.S. 964 (1965) (holding that the President has expansive power in this regard unless 
restricted by Congress). 

FN335. Centre for Independence of Judges and Lawyers Inc. v. Mabey, 19 Bankr. 635 (D. Utah 1982). 

FN336. U.S. CONST. art. I, § 8, cl. 10. 

FN337. See In re Yamashita, 327 U.S. 1 (1946). 

FN338. See supra notes 306-24 and accompanying text. 

FN339. 175 U.S. 677 (1900). 

FN340. Id. at 700; (citing Hilton v. Guyot, 159 U.S. 113, 163 (1895)); see also The Nereide, 13 U.S. (9 Cranch) 388, 
423 (1815) ("the court is bound by the law of nations which is a part of the law of the land"'). 

FN341. See, e.g., Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110, reh'g denied, 305 U.S. 
668 (1938). In fact, international law, or the law of nations as it was then known, had been accepted as part of federal 
common law since the founding of the republic, and in England before that. See supra notes 306-24 and accompanying 
text. 

FN342. See infra notes 355-56 and accompanying text; supra notes 339-40 and accompanying text. 
FN343. 19 U.S. (6 Wheat.) 1 (1821). 
FN344. Id. at75. 

FN345. However, the viewpoint that legislation enacted after a treaty is Controlling over any treaty provision in conflict 
with it has prevailed in the courts. See infra notes 348-53 and accompanying text. The force of this view, however, is 
tempered by the holding that treaties likewise control over prior legislation. Reid v. Covert, 354 U.S. 1 (1957); 
Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871). 

FN346. See supra notes 306-18 and accompanying text. 

FN347. See, e.g., United States v. Rodgers, 150 U.S. 249, 281 (1893); The Antelope, 23 U.S. (10 Wheat.) 66, 69, 
90, 102 (1825); The LTnvincible, 14 U.S. (1 Wheat.) 238, 245, 247 (1816); The Schooner Exchange v. MTaddon, 11 
U.S. (7 Cranch) 116, 133 (1812). 

FN348. 23 F.Cas. 784 (C.C.D.Mass.l855) (No. 13,799), afTd on other grounds, 67 U.S. (2 Black) 481 (1862). The 
case concerned a conflict between a Tariff Act enacted in 1842 and an 1832 treaty with Russia barring higher duties on 
Russian imports than on similar goods imported from other countries. The Tariff Act stipulated a specific rate for 
Indian hemp and a higher rate for all other hemp. Id. at 784-86. 

FN349. Id. at785. 

FN350. Id. at 786. 

FN351. Lobel, supra note 297, at 1105-06 nn. 178-80. 






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FN352. Professor Lobel traces the entrenchment of absolute sovereignty in decisions of the federal judiciary foUowing 
Taylor. Id. at 1104-10. 

FN353. E.g., The Chinese Exclusion Gase, 130 U.S. 581 (1889); Whitney v. Robertson, 124 U.S. 190 (1888); Diggs 
V. Shultz, 470 F.2d 461 (D.C.Cir.l972), cert. denied, 411 U.S. 931 (1973). 

FN354. See United States v. Hudson & Goodwin, 11 U.S. (7 Granch) 32 (1812) (lower courts do not have common 
law Jurisdiction in libel suits against the federal government because no federal Statute made libel a crime). But cf. W. 
LA FAVE & A. SGOTT, supra note 225, § 2.1 n. 17 (as an original proposition, Hudson & Goodwin was probably 
wrongly decided based on the State of the law at the time it was decided). 

FN355. 78 U.S. (11 Wall.) 268 (1870). 

FN356. Id. at 285, 305. 

FN357. Id. at 316 (Fields, J., dissenting) ("There is a limit to the means of destruction which government, in the 
prosecution of war, may use . . . imposed by the law of nations, and [the law of nations] is no less binding upon 
Gongress than if the limitation were written in the Constitution. *"). 

FN358. 1 Op. Att'y Gen. 566, 570 (1822). 

FN359. 11 Op. Att'y Gen. 297, 299-301 (1865). 

FN360. Also, The Paquete Habana, decided in 1900 (discussed supra at text accompanying notes 339-41) 
unequivocally holds that international law is binding in American courts. The Supreme Gourt also held in Hinderlider 
V. La Plata River & Gherry Greek Ditch Go., 304 U.S. 92, 110 (1938), that customary international law can create 
federal common law. 

FN361. Gasto, supra note 266, at 480-81. 

FN362. THE RESTATEMENT, supra note 261, pt. Vn, at 144 (Introductory Note). 

FN363. See supra notes 252-57, 259-75, 306-24 and accompanying text. 

FN364. See supra notes 306-24 and accompanying text. 

FN365. See supra notes 260-62 and accompanying text. 

FN366. See supra text accompanying note 270; infra notes 376-82 and accompanying text. 

FN367. This is akin to our domestic practice of implying fundamental values as a part of our Constitution, 
demonstrated in Rochin v. California, 342 U.S. 165, 172 (1952), where Justice Frankfurter used the "shocks the 
conscience"' Standard and drew upon fundamental values inherent in Anglo-American jurisprudence to discover what 
the Constitution prescribed. This same Standard was more recently employed by Justice O'Gonnor in Moran v. 
Burbine, 475 U.S. 412, 433 (1986). See also Whitley v. Albers, 475 U.S. 312, 327 (1986) (Justice O'Gonnor wrote 
the majority opinion). 

FN368. Vienna Convention on the Law of Treaties, May 23, 1969, T.S. No. 18232, 1155 U.N.T.S. 332 [hereinafter 
Vienna Gonventton]. 

FN369. Id. art. 53. 



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FN370. Id. 



FN371.Id. art. 64. 



FN372. THE RESTATEMENT, supra note 261, §§ 102 comment k, reporter's note 6, 331(2)(b) comments e, f. 

FN373. Id. § 102 comment k. 

FN374. Id. § 702 comment n. 

FN375. Id. § 102 reporter's note 6. 

FN376. Randall, Universal Jurisdiction Under International Law, 66 TEX L.REV. 785, 791 n. 28 (1988). 

FN377. E.g., THE RESTATEMENT, supra note 261, § 404. 

FN378. See, e.g., United States v. Smith, 18 U.S. (5 Wheat.) 153, 161-62 (1820). 

FN379. Dole v. New England Mut. Marine Ins. Co., 7 F.Cas. 837 (C.C.D.Mass.l864) (No. 3,966). 

FN380. THE RESTATEMENT, supra note 261, § 404 reporter's note 1. 

FN381.Id. §404. 

FN382. In re Extradition of Demjanjuk, 612 F.Supp. 544, 556 (1985) (Nuremberg is specifically referenced to support 
universal Jurisdiction); id. at 557 (Nuremberg is cited for its defmition of War Crimes); id. at 558, 561 (Nuremberg is 
referenced to establish that the United States regards War Crimes as subject to criminal prosecution); id. at 567 (ftirther 
specific reference to Nuremberg). 

FN383. See, e.g., infra notes 401-81 and accompanying text. 

FN384. 28 U.S.C. § 1350 (1982) (based on former 28 U.S.C. § 41(17) (1911) and the First Judiciary Act of 1789, eh. 
20, § 9(b), 1 Stat. 73, 77). "The district courts shall have original Jurisdiction of any civil action by an alien for a tort 
only, committed in violation of the law of nations or a treaty of the United States.*" Id. The original wording of the 
First Judiciary Act, eh. 20, § 9(b), stated that: "[The district courts] shall also have cognizance, concurrent with the 
courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only 
in violation of the law of nations or a treaty of the United States."' Judiciary Act of 1789, eh. 20, § 9(b), 1 Stat. 73, 
77. 

FN385. 630 F.2d 876 (2d Cir.1980). 

FN386. Id. at 878. 

FN387. Id. at 879. 

FN388. Id. at 878. 

FN389. See supra notes 365-72 and accompanying text. 

FN390. See supra notes 306-24 and accompanying text. 

FN391. 18 U.S. (5 Wheat.) 153 (1820). 



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FN393. 175 U.S. 677 (1900). 

FN394. Filartiga, 630 F.2d at 880-81; The Paquete Habana. 175 U.S. at 700. Filartiga ftirther relies on the 
jurisdictional Statute of the International Court as evidence of the vitality of this interpretation. See supra notes 286-87 
and accompanying text. 

FN395. Filartiga, 630 F.2d at 881-85. The U.N. Charter, supra note 278. Universal Declaration of Human Rights, 
supra note 282, the International Covenant on Civil and Political Rights, supra note 284, the American Convention on 
Human Rights, supra note 292, and other international instruments are among the Instruments to which Judge Kaufman 
referred. 

FN396. Filartiga, 630 F.2d at 882. 

FN397. Id. at 884-85. The court does not explicitly State that the Act of State doctrine is null and void in such 
situations, but does explicitly assert that international law encompasses violations of fundamental rights by a State 
against its own nationals. This is a welcome recognition that one of the chief failings of international law, prior to 
Nuremberg, was its inability to reach crimes perpetrated by a (de facto) government against its own nationals. The 
court does, in fact, express doubt that the alleged offense can properly be characterized as an Act of State since it 
violates the laws of Paraguay and has not been ratified by the Paraguayan government. Id. at 889. 

FN398. Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir.1980). 

FN399. Id. at 886; see supra notes 338-41 and accompanying text. 

FN400. Filartiga, 630 F.2d at 890. 

FN401. 517 F.Supp. 542 (1981), afFd, 726 F.2d 774 (D.C.Cir.l984), cert. denied, 470 U.S. 1003 (1985). 

FN402. Tel-Oren v. Libyan Arab Republic. 726 F.2d 774, 776 (D.C.Cir.l984) (Edwards, J., concurring), cert. 
denied, 470 U.S. 1003 (1985); Hanoch Tel-Oren, 517 F.Supp. at 545. 558. 

FN403. Hanoch Tel-Oren. 517 F.Supp. at 546, 548, 549, 551. 

FN404. Id. at 549. 

FN405. 28 U.S.C. § 1350 (1982); see supra note 384. 

FN406. Tel-Oren, 726 F.2d at 810 (Bork, J., concurring). 

FN407. Id. at799. 

FN408. Id. at801, 804, 811. 

FN409. See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana. 472 U.S. 237, 249 (1985) (quoting Colautti v. 
Franklin, 439 U.S. 379, 392 (1979)); Rosado v. Wyman, 397 U.S. 397, 415 (1970) ("[CJourts should construe all 
legislative enactments to give them some meaning.*"). 

FN410. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 801, 810-11 (D.C.Cir.l984) (Bork, J., concurring), cert. 
denied, 470 U.S. 1003 (1985). 






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FN411. Id. at 810-11. 

FN412. Id. at 808. 

FN413. Id. at801,812. 

FN414. Id. at812. 

FN415. Id. 

FN416. Id. 

FN417. See supra notes 306-41 and accompanying text. 

FN418. 21 J. CONTINENTAL CONGRESS 1136 (1781) (first resolve). 

FN419. Id. at 1136-37 (third resolve). 

FN420. Id. at 1137 (fourth resolve). 

FN421. 4 W. BLACKSTONE, COMMENTARIES ON THE LA WS OF ENGLAND 66-73 (1966). 

FN422. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 813-15 (D.C.Cir.l984), cert. denied, 470 U.S. 1003 
(1985). 

FN423. Id. at 815. 

FN424. 21 J. CONTINENTAL CONGRESS, supra note 417, at 1137 (penultimate resolve). 

FN425. A Bill to Establish the Judicial Courts of the United States (undated) [hereinafter Senate Draft], reprinted in 
EARLY AMERICAN IMPRINTS NO. 45657 (Readex microprint Corp.) 

FN426. Senate Draft, supra note 424, at 4, quoted in Casto, supra note 266, at 497-98. 

FN427. See, e.g., Judiciary Act of 1789, eh. 20, §11,1 Stat. 73, 78 (1789). 

FN428. Id. § 11 (original Jurisdiction); id. § 12 (removal Jurisdiction). 

FN429. See J. PETERSON, PROVINCE OF FREEDOM 31 (1969); A. SIBTHORPE, THE HISTORY OF SIERRA 
LEONE 11-12 (1980); Casto, supra note 266, at 502-03. 

FN430. 1 Op. Att'y Gen. 57, 58 (1795). 

FN431.Id. 

FN432. Id. at 59. The problem with criminal prosecution apparently lay in obtaining evidence from so distant a locale 
that would be sufficient to meet criminal trial Standards. Id. "[T]he difficulty of obtaining redress [in a civil suit] would 
not be so great as in a criminal prosection, where viva voce testimony alone can be received as legal proof."* Id. 

FN433. See supra notes 306-41 and accompanying text. 

FN434. See supra notes 315-18 and accompanying text. 






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FN435. See supra note 354 and accompanying text. 

FN436. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 817-18 (D.C.Cir.l984) (Bork, J. concurring), cert. 
denied, 470 U.S. 1003 (1985). 

FN437. Id. at 817. 

FN438. THE RESTATEMENT, supra note 261, at 5 (Introduction to Volume I) ("Relations between nations are not 
anarchic; they are governed by law.*"). 

FN439. Tel-Oren, 726 F.2d at 817-19. 

FN440. "I am guided chiefly by Separation of powers principles, which caution courts to avoid potential interference 
with the political branches' conduct of foreign relations."* Id. at 799; see also id. at 801, 804-05, 808, 811 (reiterating 
that Separation of powers counsels against judicial interference in foreign relations). 

FN441. Underhill v. Hernandez, 168 U.S. 250 (1897). 

FN442. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682 (1976); Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d. 
Cir.), cert. denied, 434 U.S. 984 (1977). 

FN443. Infi Ass'n of Machinists & Aerospace Workers v. OPEC, 649 F.2d 1354 (9th Cir.1981), cert. denied, 454 
U.S. 1163 (1982). 

FN444. Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); Timberlane Lumber Co. v. Bank 
of America, Nat'l Trust &. Sav. Ass'n, 549 F.2d 597 (9th Cir. 1976). 

FN445. See supra notes 247-61 and accompanying text. 

FN446. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 

FN447. THE RESTATEMENT, supra note 261, at 5 (Introduction to Volume I). 

FN448. 273 U.S. 536 (1927). 

FN449. Id. at 540 (citation omitted). 

FN450. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 824-25 (D.C.Cir.l984), cert. denied, 470 U.S. 1003 
(1985). 

FN451. Id. at776. 

FN452. Id. at 788, 792. 

FN453. Id. at793. 

FN454. 1 IMT, supra note 5, at 223; United States v. Flick, in 6 TRIALS OF WAR CRIMINALS BEFORE THE 
NUREMBERG MILITARY TRIBUNALS 1192 (1952) (commonly known as The Flick Case). 

FN455. The Nuremberg Charter, supra note 103, at 12 (art. 7). 

FN456. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980). 






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FN457. United States v. Klintock, 18 U.S. (5 Wheat.) 144, 152 (1820); In re Extradition of Demjanjuk, 612 F.Supp. 
544, 556 (N.D. Ohio 1985). 

FN458. Klintock, 18 U.S. at 152. 

FN459. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 807 (D.C.Cir.l984), cert. denied, 470 U.S. 1003 (1985). 

FN460. 1 IMT, supra note 5, at 11 (citing the Charter of the International Military Tribunal, art. 6(b)). 

FN461. United States v. List, in 11 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY 
TRIBUNALS 757 (1950) (also known as The Hostage Gase). 

FN462. Id. at 1249-51. 

FN463. Id. at 1250. 

FN464. Id. at 1254-55. 

FN465. 6 U.S.T. 3516, T.LA.S. No. 3365, 75 U.N.T.S. 287. 

FN466. 75 U.N.T.S. 288-90 (art. 3). 

FN467. Id. at 290. 

FN468. See 1 IMT, supra note 5, at 223. 

FN469. The Nuremberg Gharter, supra note 103, at 12 (art. 7). 

FN470. Geneva Conventions of August 12, 1949 (Protocols I and II), reprinted in 16 INT'L LEGAL MATERIALS 
1391 (1977). 

FN471.Id. art. l(3)-(4). 

FN472. Id. art. 51(2). 

FN473. Id. art. 75. 

FN474. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 806 (D.G.Gir.l984), cert. denied, 470 U.S. 1003 (1985). 

FN475. Goldwater v. Carter, 617 F.2d 697, 707-08 & n. 24 (D.C.Cir.), vacated on other grounds, 444 U.S. 996 
(1979); see Dames & Moore v. Regan, 453 U.S. 654, 683 (1981) (quoting Ozanic v. United States, 188 F.2d 228, 231 
(2d Cir.1951)); United States v. Pink, 315 U.S. 203, 241 (1942). 

FN476o See supra note 384. 

FN477. THE RESTATEMENT, supra note 261, § 404. 

FN478. Id. § 404, comment a. 

FN479. Id. § 404 reporter's note 1. 

FN480. Id. § 404 comment a (emphasis added). 






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FN481. Id. § 404 comment b. In fairness to the Tel-Oren judges, it should be noted that the current version of the 
Restatement was not adopted until 1986 and was not published until 1987. This ante-dates the decision of the case by 
one and two years respectively. However, in the author's opinion, this is not a significant mitigating factor because the 
major flaws in their decisions stem from their general lack of appreciation for the role of international law in domestic 
Courts, and not from lack of additional evaluations of terrorism over the course of one year. 

FN482. Tel-Oren v. Libyan Arabic Republic, 726 F.2d 774, 793 n. 23 (D.C.Cir.l984), cert. denied, 470 U.S. 1003 
(1985). 

FN483. 54 Haw. 450, 509 P.2d 1095 (1973). 

FN484. Id. at 1098. 

FN485. Id. at 1106-09. 

FN486. Id. at 1105-09. 

FN487. 415 F.2d 1308 (6th Cir.1969), cert. denied, 397 U.S. 997 (1970). 

FN488. Id. at 1310-12. 

FN489. Id. at 1316. The judge refers to the reprint of The Judgment in The Nuremberg Trials, 6 F.R.D. 69, 76. (This 
is a convenient source because it is readily available in many legal libraries.) 

FN490. Id. at 1316. 

FN491. 297 F.Supp. 902 (D.Mass. 1969), appeal dismissed, 399 U.S. 267 (1970). 

FN492. Id. at 905. 

FN493. Sisson, 399 U.S. at 277. 

FN494. See also United States v. Leavy, 422 F.2d 1155 (9th Cir.), cert. denied, 397 U.S. 1076 (1970) (In an appeal 
involving the denial of conscientious objector Status, the judge holds that "claims based on ... the Treaty of London 
[and] the Charters [sie] of Nuremberg . . . are either premature, without merit, or foreclosed to us."' Id. at 1157-58). 

FN495. 369 F.2d 323 (2nd Cir.1966), cert. denied, 386 U.S. 972, reh'g denied, 386 U.S. 1042 (1967). 

FN496. Mitchell, 386 U.S. at 972 (Douglas, J., dissenting). 

FN497. See supra note 103 and accompanying text. 

FN498. Mitchell, 386 U.S. at 972 (Douglas, J., dissenting). 

FN499. Id. at 973-74; see also Mora v. McNamara, cert. denied, 389 U.S. 934 (1967) (Stewart & Douglas, J.J., 
dissenting), reh*g denied, 389 U.S. 1025 (1967). In this case three privates filed suit to block their shipment to 
Vietnam. The District Court dismissed their case and the court of appeals affirmed the dismissal. This petition for 
certiorari was denied eight months after the Mitchell denial. Justice Stewart agrees with Justice Douglas' opinion in tiie 
former case that the applicability of international law as expressed at Nuremberg is germane and should be squarely 
faced by granting certiorari and hearing oral arguments. Mora, 389 U.S. at 934-35 (Stewart & Douglas, J.J., 
dissenting). 



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FN500. 162 CaI.App.3d Supp. 1, 208 Cal.Rptr. 719 (Cal.App. Dep*t Super.Ct.l984). 
FN501.Id. at4. 
FN502. Id. at6-8. 
FN503. Id. at6. 
FN504. Id. 



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FN505. See, e.g., United States v. Patz, 584 F.2d 927 (9th Cir.1978). (Protestors scaled the fence and entered the 
premises of the Naval Submarine Base at Bangor, Washington for the stated purpose of having a picnic and discussing 
with base personnel "their objections to construction of the Trident nuclear submarine at the facility.*" Id. at 928-29. 
The defendants "argued that their D . . . actions were mandated by the principles of the Nuremberg judgment. *" Id. at 
928. The court did not find it necessary to reach this issue because they concluded that the actions committed by the 
defendants were not in violation of the Statute under which they were prosecuted. Id. at 928. Although this is a happier 
resuh for the defendants than in most cases where protestors rely on the Nuremberg precedent, it is consistent with the 
other decisions in that it does not reject the validity of Nuremberg, but it finds a way to decide the case without relying 
on Nuremberg.). Cf. United States v. Kabat, 797 F.2d 580 (8th Cir.), cert. denied, 481 U.S. 1030 (1987) (The 
defendants argue that even if they admitted entering a mihtary installation and intentionally damaging property, their 
actions were defensible under the Nuremberg precedent. Id. at 590. The judge rejected the argument that Nuremberg 
requires a Citizen to violate domestic law by acting affirmatively. Rather, he believed that Nuremberg demands only 
that a person reftise to personally participate in international illegalities. Id. at 590.); see also United States v 
Montgomery, 772 F.2d 733, 735 (1 Ith Cir. 1985): 

Early on the morning of Easter Sunday 1984, [die defendants, who are] opposed to the production and spread of 
nuclear weapons, cut through a fence surrounding the Martin-Marietta Aerospace Corporation's defense plant in 
Orlando, Florida. Entering a building within the Compound, they hammered and poured blood onto both nuclear 
and conventional missile launchers ... and remained on the premises singing and praying until they were taken 
into custody. 

After rejecting the defendants' arguments that voir dire in the trial court was defective, id. at 736, and that their 
actions were justified by the defense of necessity, id. at 736-37, the judge addressed their claim based on the 
Nuremberg Trials. As usually happens when confronted with this defense, the court rejected it. The judge did go 
into some depth in evaluating the precedent. He cited both The Flick Case and The Justice Case in evaluating 
whether or not international law requires a Citizen to take affirmative action to prevent government sanctioned 
actions which are contrary to international law. Id. at 737. He concluded that the defense is only available when an 
individual is asked to participate in illegality, in which case they have a duty to reftise, but is not available where, 
as in Ulis case, the defendants were not being required by domestic law to disobey international law. Id. at 737-38.' 
Implicit in the judge's opinion is a recognition of the binding effect the Nuremberg precedent has on domestic 
Courts. His analysis of the applicability of Nuremberg to the case before him is also well reasoned, though perhaps 
not as in depth as it might be. What the protesters are really asking the judge to do is extend the principles of 
Nuremberg to include their actions within its scope. Argument on this issue would be wholly appropriate for the 
court to entertain. The responsibility for initiating this argument rests on die defendants. If they are more interested 
in gaining Publicity for their cause rather than seriously addressing die issues of law involved, üiey are as 
responsible, or perhaps more responsible than die court for not advancing die quality of discussion in court of diese 
principles and for extending üieir applicability. 



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FN506. In re Extradition of Demjanjuk, 612 F.Supp. 544, 556 (1985). 

FN507. Id. at 567. But cf. Kulle v. INS, 825 F.2d 1188 (7di Cir.1987), cert. denied. 484 U.S. 1042 (1988) (upholding 
deportation of Nazi War Criminal on basis of Statute). "The legal principles established at Nuremberg have contributed 



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much to certain spheres of law and to the definition of ' persecution/ But they have no immediate bearing on a 
deportation proceeding controlled by a statutory provision which, for all intents and purposes, utilizes the term 
'assisted' in persecution quite liberally."' Id. at 1193. 

FN508. Artukovic v. Boyle, 140 F.Supp. 245 (1956), affd, 247 F.2d 198 (9th Cir.1957), vacated, 355 U.S. 393 
(1958). 

FN509. Quinn v. Robinson, 783 F.2d 776 (9th Cir.), cert. denied, 479 U.S. 882 (1986). 
FN510. Artukovic v. Rison, 784 F.2d 1354 (1986). 
FN511. 599 F.Supp. 270 (S.D.N.Y.1984). 
FN512. Id. at272. 

FN513. Id. at 277; see also Eain v. Wilkes, 641 F.2d 504 (7th Cir.1981), cert. denied, 454 U.S. 894 (1982) (A 
suspected terrorist was retumed to Israel because "the indiscriminate bombing of a civilian populace is not recognized 
as a protected political act even when the larger 'political' objective of the person who sets off the bomb may be to 
eliminate the civilian population of a country."* Id. at 521.). 

FN514. Id. at 274. 275. 
FN515. Id. at274. 
FN516. Id. at275. 
FN517. 483 U.S. 669 (1987). 

FN518. Id. at 708-10 (O'Connor, J., concurring in part and dissenting in part). 
FN519. Id. at710. 

FN520. Id. at 686 (Brennan, J. concurring in part and dissenting in part). 
FN521. R. JACKSON, supra note 1, at 432, 439. 
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1. 49 Bus. Law. 505 February, 1994 HOW ACCURATE ARE ESTIMATES OF 
AGGREGATE DAMAGES IN SECURITIES FRAUD GASES? Kenneth R. Cone James 
E. Laurence [FNa] 4 9 BUSLAW 505 

2. The Prosecution and Defense of Shareholder Litigation Against Directors 
and Officers USE OF MODERN FINANCE THEORY IN SECURITIES FRAUD GASES 
INVOLVING ACTIVELY TRADED SECURITIES May 28, 1992 Daniel R. Fischel 
II [FNal] C735 ALI-ABA 169 

3. 105 Harv. L. Rev. 503 SHOULD THE LAW PROHIBIT "MANIPULATION" IN 
FINANCIAL MARKETS? December, 1991 Daniel R. Fischel [FN*] David J. 
Ross [FN**] 105 HVLR 503 

4. 89 Colum. L. Rev. 1416 Contractual Freedom in Corporate Law THE 
CORPORATE CONTRACT November, 1989 Frank H, Easterbrook [FN*] 
Daniel R. Fischel [FN**] 89 CLMLR 1416 



5. 99 Yale L.J. 131 THE ECONOMICS OF LENDER LIABILITY 
Daniel R. Fischel [FNd] 99 YLJ 131 



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6. 74 Cornell L. Rev. 907 Symposium on the Regulation of Secondary 
Trading Markets: Program Trading, Volatility, Portfolio Insurance, and 
the Role of Specialists and Market Makers EFFICIENT CAPITAL MARKETS, 
THE CRASH, AND THE FRAUD ON THE MARKET THEORY July, 1989 Daniel R. 
Fischel [FNp] 74 CNLLR 907 

7. 98 Yale L.J. 127 Comment TRANS UNION RECONS IDERED November, 1988 
Jonathan R. Macey [FNp] Geoffrey P. Miller [FNpp] 98 YLJ 127 

8. 55 U. Chi. L. Rev. 1105 ERISA'S FUNDAMENTAL CONTRADICTION: THE 
EXCLUSIVE BENEFIT RULE Fall, 1988 Daniel Fischel [FNp] John H. 
Langbein [FNpp] 55 UCHILR 1105 

9. Practising Law Institute Litigation and Administrative Practice Course 
Handbook Series Litigation PLI Order No. H4-5042 April 1, 1988 
USE OF MODERN FINANCE THEORY IN SECURITIES FRAUD CASES INVOLVING 
ACTIVELY TRADED SECURITIES Daniel R. Fischel 345 PLI/Lit 3 55 



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82 Nw. U. L. Rev. 293 WHY ARE PEOPLE NEGLIGENT? TECHNOLOGY, 
NONDURABLE PRECAUTIONS, AND THE MEDICAL MALPRACTICE EXPLOSION 
1988 Mark F. Grady [FNa] 82 NWULR 293 



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97 Yale L.J. 232 THE VOTING PROHIBITION IN BOND WORKOUTS December, 
1987 Mark J. Roe [FNa] 97 YLJ 232 



12. 16 Hofstra L. Rev. 131 PROMISSORY ESTOPPEL DAMAGES Fall, 1987 Mary 
E. Becker [FNa] 16 HOFLR 131 

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Practising Law Institute Corporate Law and Practice Course Handbook 
Series PLI Order No, B4-6795 June 1, 1987 LIMITED LIABILITY AND 
THE CORPORATION Frank H. Easterbrook [FNdl] Daniel R. Fischel [FNddl] 
563 PLI /Corp 67 

73 Va. L. Rev. 701 PROPERTY RIGHTS IN ASSETS AND RESISTANCE TO TENDER 
OFFERS May, 1987 David D. Haddock Jonathan R. Macey Fred S. 
McChesney [FNa] 73 VALR 701 



50-SPG Law Sc Contemp. Probs. 173 A WORLD WITHOUT BANKRUPTCY 
1987 Douglas G. Baird [FNa] 50-SPG LCPR 173 



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16. 15 Hofstra L. Rev. 443 BEYOND RELIANCE: PROMISSORY ESTOPPEL, CONTRACT 
FORMALITIES, AND MISREPRESENTATIONS Spring, 1987 Randy E. Barnett 

[FNa] Mary E. Becker [FNaa] 15 HOFLR 443 

17. 73 Va. L. Rev. 3 01 THE REGULATION OF BANKS AND BANK HOLDING COMPANIES 
[FNp] March, 1987 Daniel R. Fischel [FNa] Andrew M. Rosenfield 
[FNaa] Robert S. Stillman [FNaaa] 73 VALR 301 

18. 65 Tex. L. Rev. 469 TOWARD AN INTEREST- GROUP THEORY OF DELAWARE 
CORPORATE LAW February, 1987 Jonathan R. Macey [FNa] Geoffrey P. 
Miller [FNaa] 65 TXLR 469 

19. 54 U. Chi. L. Rev. 119 ORGANIZED EXCHANGES AND THE REGULATION OF DUAL 
CLASS COMMON STOCK Winter, 1987 Daniel R. Fischel [FNp] 

54 UCHILR 119 

20. 52 Brook. L. Rev. 1051 The Abraham L. Pomerantz Lecture : The 
Regulation of Accountant-- Commentary THE REGULATION OF ACCOUNTING: 
SOME ECONOMIC ISSUES 1987 Daniel R. Fischel [FNa] 52 BKNLR 1051 

21. 12 Del. J. Corp. L. 107 MODES OF DISCOURSE IN THE CORPORATE LAW 
LITERATURE: A REPLY TO PROFESSOR EISENBERG 1987 Barry D. Baysinger 

[FNa] Henry N. Butler [FNaa] 12 DEJCL 107 



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53 Brook. L, Rev. 1 Symposium: Striking the Right Balance: Federal 
and State Regulation of Financial Institutions THE FUTURE OF THE DUAL 
BANKING SYSTEM 1987 Geoffrey P. Miller [FNa] 53 BKNLR 1 

53 U. Chi. L. Rev. 1129 LEGAL INTERFERENCE WITH PRIVATE PREFERENCES 
Fall, 1986 Cass R. Sunstein [FNp] 53 UCHILR 1129 



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53 U. Chi. L. Rev. 891 

MARKETS Summer, 1986 

[FNpp] 53 UCHILR 891 



COMPARABLE WORTH AND DISCRIMINATION IN LABOR 
Daniel R. Fischel [FNp] Edward P. Lazear 



53 U. Chi. L. Rev. 
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950 COMPARABLE WORTH: A REJOINDER Summer, 1986 

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26. 99 Harv. L. Rev. 1808 MEDIATION WITH A MUGGER: THE SHORTAGE OF 
ADJUDICATIVE SERVICES AND THE NEED FOR A TWO-TIER TRIAL SYSTEM IN CIVIL 
CASES June, 1986 Albert W. Alschuler [FNa] 99 HVLR 1808 

27. Practising Law Institute Corporate Law and Practice Course Handbook 
Series PLI Order No. B4-6750 May 1, 1986 LIMITED LIABILITY AND THE 
CORPORATION Frank H. Easterbrook Daniel R. Fischel 520 PLI/Corp 65 

28. 54 Geo. Wash. L. Rev. 15 9 LAW AND THE THEORY OF FINANCE: SOME 
INTERSECTIONS January/March, 1986 Richard A. Posner [FNa] 
54 GWLR 159 

29. 38 Stan. L. Rev. 271 CLOSE CORPORATIONS AND AGENCY COSTS January, 
1986 Frank H. Easterbrook [FNa] Daniel R. Fischel [FNaa] 38 STNLR 
271 

30. 80 Nw. U. L. Rev. 777 UNPROFITABLE MERGERS: TOWARD A MARKET-BASED 
LEGAL RESPONSE Winter, 1986 George W. Dent, Jr. [FNa] 80 NWULR 777 

31. 71 Cornell L. Rev. 261 Symposium: Liability Rules and the Derivative 
Suit in Corporate Law THE ROLE OF LIABILITY RULES AND THE DERIVATIVE 
SUIT IN CORPORATE LAW: A THEORETICAL AND EMPIRICAL ANALYSIS January, 
1986 Daniel R. Fischel [FNp] Michael Bradley [FNpp] 71 CNLLR 261 

32. 95 Yale L.J. 13 A THEORETICAL ANALYSIS OF CORPORATE GREENMAIL 
November, 1985 Jonathan R. Macey [FNp] Fred S. McChesney [FNpp] 
95 YLJ 13 

33. 60 N.Y.U. L. Rev. 761 EFFICIENT MARKETS, COSTLY INFORMATION, AND 
SECURITIES RESEARCH November, 1985 Jeffrey N. Gordon [FNa] Lewis 
A. Kernhäuser [FNaa] 60 NYULR 761 

34. 40 Bus. Law. 1437 Institute: Institute on Dynamics of Corporate 
Control THE BUSINESS JUDGMENT RULE AND THE TRANS UNION CASE August, 
1985 Daniel R. Fischel [FNa] 40 BUSLAW 1437 



35. 



Practising Law Institute 
Series PLI Order No. B4 
IN SECURITIES FRAUD CASES 



Corporate Law and Practice Course HandbooJc 
6723 August 1, 1985 THE USE OF ECONOMICS 
Daniel R. Fischel 492 PLI/Corp 455 



36. 



52 U. Chi. L. Rev. 611 OPTIMAL DAMAGES IN SECURITIES CASES 
1985 Fran]<: H. Easterbrook [FNa] Daniel R. Fischel [FNaa] 
52 UCHILR 611 



Summer, 



37. 73 Calif . L. Rev. 261 THE LIMITS OF EXPANDED CHOICE: AN ANALYSIS OF 
THE INTERACTIONS BETWEEN EXPRESS AND IMPLIED CONTRACT TERMS March, 1985 
Charles J. Goetz [FNp] Robert E. Scott [FNpp] 73 CALR 261 

38. 52 U. Chi. L. Rev. 8 9 LIMITED LIABILITY AND THE CORPORATION Winter, 
1985 Fran]<: H. Easterbroolc [FNa] Daniel R. Fischel [FNaa] 

52 UCHILR 89 

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39. 98 Harv. L. Rev. 4 The Supreme Court, 1983 Term FOREWORD: THE COURT 
AND THE ECONOMIC SYSTEM November, 1984 Frank H. Easterbrook [FNa] 

98 HVLR 4 

40. 84 Colum. L. Rev. 1689 NAKED PREFERENCES AND THE CONSTITUTION 
November, 1984 Cass R. Sustein [FNal] 84 CLMLR 1689 

41. 51 U. Chi. L. Rev. 1041 Symposium: The Conceptual Foundations of Labor 
Law RIGHTS, MINIMAL TERMS, AND SOLIDARITY: A COMMENT Fall, 1984 
Cass R. Sunstein [FNa] 51 UCHILR 1041 

42. 51 U. Chi. L. Rev. 1061 Symposium: The Conceptual Foundations of Labor 
Law LABOR MARKETS AND LABOR LAW COMPARED WITH CAPITAL MARKETS AND 
CORPORATE LAW Fall, 1984 Daniel R. Fischel [FNa] 51 UCHILR 1061 

43. 13 Hofstra L. Rev. 127 Symposium on Insider Trading INSIDER TRADING 
AND INVESTMENT ANALYSTS : AN ECONOMIC ANALYSIS OF DIRKS v. SECURITIES AND 
EXCHANGE COMMISSION Fall, 1984 Daniel R. Fischel [FNa] 13 HOFLR 127 

44. 70 Va. L. Rev. 549 THE MECHANISMS OF MARKET EFFICIENCY May, 1984 
Ronald J. Gilson Reinier H. Kraakman [FNa] 70 VALR 549 

45. 70 Va. L. Rev. 669 MANDATORY DISCLOSURE AND THE PROTECTION OF INVESTORS 
May, 1984 Frank H. Easterbrook [FNa] Daniel R. Fischel [FNaa] 

70 VALR 669 

46. 35 Stan. L. Rev. 857 THE REGULATION OF INSIDER TRADING May, 1983 
Dennis W. Carlton [FNa] Daniel R. Fischel [FNaa] 35 STNLR 857 

47. 50 U. Chi. L. Rev. 533 STATUTES' DOMAINS Spring, 1983 Frank H. 
Easterbrook [FNa] 50 UCHILR 533 

48. 35 Stan. L. Rev. 1 AUCTIONS AND SUNK COSTS IN TENDER OFFERS 
November, 1982 Frank H. Easterbrook [FNa] Daniel R. Fischel [FNaa] 
35 STNLR 1 



49. 91 Yale L.J. 698 CORPORATE CONTROL TRANSACTIONS March, 1982 
H. Easterbrook [FNdl] Daniel R. Fischel [FNddl] 91 YLJ 698 



Frank 



50. 76 Nw. U. L. Rev. 913 THE "RACE TO THE BOTTOM" REVISITED: REFLECTIONS 
ON RECENT DEVELOPMENTS IN DELAWARE' S CORPORATION LAW February, 1982 
Daniel R. Fischel [FNa] 76 NWULR 913 



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Word & f m ac.e 




'T^r 



The War and the Law 



48 



WHEN IT 
Started, I 
was Stand- 
ing on a 
ticket line, behind my 
mother, in the giant rib 
cage that was Leipzig's 
main railroad Station. 
Suddenly, from a hun- 
dred Speakers atop the 
station's girders, Adolf 
Hitler was screaming 
blood and thunder: Ger- 
many is on the march! It 
must avenge this das- 
tardly attack! — by Po- 
land's pathetic infantry. 
Although that speech 
niade me an "enemy 
ahen/' in a place where 
being Jewish was bad 
enoueh, I don't re- 
member much eise 
about Sept. 1, 1939, ex- 
cept the satisfaction 
my mother took when- 
ever in later years she re- 
called the mumbled com- 
ment of the stunned Ger- 
man man in line behind us. 
''I knew when I saw the 
synagogues burn," he said, 
"I knew then that we woiild 
some day pay for it." 

What I remember all too 
well IS my simultaneous 
pleasure and despair when 
rhey did finally pay for ir. I 
was aniong the lucky few 
who escaped from Europe's 
cauldron. When the war 
ended, I could celebrate the 
ruin of Germany and relish 
the execution of the top Na- 
zis. But having now been 
thoroughly steeped in 
American jurisprudence, I 
could never endorse the pre- 
tense that by starting a war, 
like men in every genera- 
tion, and murderine civil 



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Misjudgment at Nuremberg, In the dock in 
1 946, from left: Hennann Göring, Rudolf 
Hess, Joachim von Ribbentrop and 
Wdhelm Keitel 



ians, as even the ancient 
Greeks had done, the Nazis 
had violated some kind of 
"law" and were now subject 
to trial and sentence by a 
hurriedly conjured "court." 
There in a Nuremberg 
dock sat the porcine Her- 
mann Göring and 21 other 
German warlords before 
four Aliied "judges" pre- 
tending to weigh the de- 
fenses that a pickup team of 
German lawyers could mus- 
ter against the massive evi- 
dence of Nazi barbarities and 
aggressions. There was no 
doubt about that gang's guilt 
before God and the victors' 
duty to avenge the Nazis' 
victims. But the winners 
were producing a false image 
of justice, a theater of the 
absurd, as if the peoples of 
the World had created a gov- 



ernment and passed laws 
against war and wartime acts 
of cruelty. 

Now I realize that a half 
Century of history has failed 
to relieve my adolescent con- 
cerns. There has been no end 
of war and barbarism; Nu- 
remberg deterred nothing. 
And in their trustration, 
good people contmue to pre- 
tend that the "cnmes" of war 
can be punished )udicial- 
!y. New tnbunals are be- 
ing summoned to in- 
voke a nonexistent law 
against the few barbar- 
lans of Bosnia and 
Rwanda that mieht be 
captured by a society 
lackmg a police. 

Don't misunderstand: 
the sins of the Nazis 
and their contemporary' 
successors are unforgiv- 
able and deserve to be 
avenged. But in an anar- 
chic World where there 
is no authority to define 
the crimes of nations or 
individuals who lead 
them, those deeds are 
not unlawfiü. No one 
has been authorized to 
write such laws or to 
appoint judges and 
prosecutors and to 
raise the taxes to pay 
jailers and execution- 
In the evolution of hu- 
man institutions, these are 
major missing links. 

THE LEADING NAZIS WERE 
tried in Nuremberg for 
''crimes against peace" — wag- 
ing a war of aggression; for 
"war crimes" — abusing pns- 
oners and enemy civilians, and 
for "crimes against humanity" 
— inflicting genocidal horrors 
upon millions of Jews and 
other undesirables. The in- 
dictments were grounded in a 
postwar agreement among Al- 
iied diplomats who realized 
that they were invoking a rct- 
roacuve jurisprudence that 
would surely be unconstitu-^ 
tional in an American coun. 
They justified their creativity 
by invoking international Con- 
ventions and protocols. But 
since none of these prescribed 



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Aggressors walk free if 

they win the wars they Start. 

Atrocities are customarily cited 

only against losers. 



any enforcement mechanisms, 
there was much straining to 
cite the "common law" of war 
and to buttress it with literary 
and reiigious allusions. Didn*t 
the Old Testament recognize 
"war crimes" by forbidding 
the destruction of fruit-bear- 
ing trees in enemy territory? 
Didn't Homer imply "rules of 
war" governing the enslave- 
ment of conquered peoples 
and the burial of enemy dead? 

Indeed, the fastidious fram- 
ers of the Nuremberg rules 
claimed no right to punish 
non-war crimes — those 
commiued either before Sep- 
tember 1939 or after V-E Day. 
Though they proclaimed all 
nations subject to the same 
rules in the future, they never 
addressed the problem of who 
could punish atrocities com- 
mitted in peacetime or in un- 
declared wars. They could 
thus escape the paradox that 
one of the Nuremberg judges 
was hanging Na2:is for con- 
duct that both before and af- 
ter the war was rewarded in 
his own country with Orders 
of Stalin. 

The extermination, depor- 
tation and torture of entire 
classes of people has not, even 
in this Century, been a unique- 
ly German or Japanese policy. 
Only the total defeat of those 
two peoples rendered their 
leaders indictable for the "su- 
preme international crime" of 
aggression. The evidence of 
their guilt was overwhelming. 
But the legality of their pros- 
ecution Struck even their 
prosecutors as shaky. 

AS WE CAN SEE IN 
the case of Bosnia 
or Rwanda, not 
even outraged na- 
tions elsewhere are disposed 
to go to war in the service of 
justice. So the chances are 
slim that anyone will ever 
catch up with the major per- 
petrators of crimes against 



humanity In those coun- 
tries.The tribunals that have 
been convened for them 
trace their authority to reso- 
lutions of the United Na- 
tions — a league of nations 
formed to protect, not to 
penetrate, the "sovereignty" 
of its members. If it were 
otherwise, many of the 
members, from Argentina 
to Zaire, would be haled 
into courts for their crimes 
against humanity. 

It is deplorable that a great 
many such crimes go un- 
punished. But even more re- 
grettable is the pretense, 
over these past 50 years, that 
the world*s nations and their 
leaders are moving to sub- 
ject themselves to a regime 
of supranational law. The 
ugly truth is that interna- 
tional crime pays. Aggres- 
sors walk free if they win 
the wars they Start. Atroci- 
ties are customarily cited 
only against losers. The civi- 
lized World cannot pros- 
ecute the most heinous 
crimes without first defeat- 
ing the perpetrators. It can't 
defeat them without an 
army. It can't raise an army 
without levying taxes. And 
it can't collect taxes without 
a Parliament or Internation- 
al Revenue Service. 

We are no closer to such a 
regime than we were at the 
end of World War II, when 
E. B. White offered this pre- 
scient warning in The New 
Yorker: "These so-called 
war trials . . . will be ex- 
tremely valuable as prece- 
dents if they are presented 
as a preview of the justice 
that may some day exist, not 
as an example of the justice 
that we have on hand. . . . 
Nobody, not even victors, 
should forget that when a 
man hangs from a tree it 
doesn't spell justice unless 
he helped write the law that 
hanged him."« 



UNITED 
NATIONS 



S 




Secuiity Council 



Distr. 

GENERAL 

S/1994/674 
27 May 1994 

ORIGINAL! ENGLISH 



LETTER DATBD 24 MAY 1994 FRON THE SECRETARY -GENERAL 
TO THE PRESIDENT OP THE SECURITY COUNCIL 



By its resolut ion 780 (1992) of 6 Octob«r 1992, th« S«curity Council 
requastad wm to ••tablish a Comnission of Exports to •xamin« and analys« 
Information gath^r^d with a view to providing th« S«cr«tary-Gan«ral with ita 
conclusiona on th« •vid^nc« of grava braachea of tha Ganava Convantiona and 
othar violationa of intarnational humanitarian law coimittad in tha territory of 
tha formar Yugoalavia. On 26 Octobar 1992 I appointad a fiva-mambar Cocimiaaion, 
chairad by Profaaaor Prita Kalahovan and, following tha lattar'a reaignation, by 
Profaaaor Charif Baaaiouni. My raport on tha aatabliahnant of tha, Coromiaaion of 
Exparta waa aubmittad to tha Council on 14 Octobar 1992 (S/24657). 

Tha Conmiaaion comnancad ita activitiaa in Novambar 1992 and concludad ita 
work in April 1994. During thia period it haa hald 12 aaaaiona and conducted a 
aariaa of atudiaa and on-aita invaatigationa, uaing for that purpoaa offara of 
aaaiatanca fron Govarninanta and non-govarmnantal organizationa. Tha Coiraniaaion 
alao aatabliahad a databaaa daaignad to provida a comprahanaiva racord of all 
raportad grava braachaa of tha Ganava Convantiona and othar violationa of 
intarnational humanitarian law. Tha two intarim raporta of tha Commiaaion, 
daacribing tha atatua of ita work and ita praliminary concluaiona wara forwardad 
to tha Sacurity Council in my lettara of 9 Pabruary 1993 (S/25274) and 
5 Octobar 1993 (S/26545). 

Tha final raport of tha Commiaaion includaa a aurvay of tha Commiaaion* a 
work ainca ita incaption, ita mandata, atructura and mathoda of work, ita viawa 
on aalactad lagal iaauaa of particular aignificanca in tha contaxt of tha formar 
Yugoalavia, a ganaral atudy on tha military atructura of tha ''warring factiona" 
and tha atratagiaa and tactica employad by tham, and aubatantiva findinga on 
allagad crimaa of "athnic claanaing", ganocida and othar maaaiva violationa of 
elamantary dictataa of humanity, rapa and aaxual aaaault and daatruction of 
cultural proparty committad in varloua parta of Boania and Harzagovina. 

On tha baaia of tha information gatharad, axaminad and analyaad, tha 
Commiaaion haa concludad that grava braachaa of tha Ganava Convantiona and othar 
violationa of intarnational humanitarian law hava baan committad in tha 
territory of tha formar Yugoalavia on a larga acala, and wara particularly 
brutal and farocioua in thair axecution. Tha practica of ao-callad '*ethnic 



94-20060 (E) 



100694 13/06/94 



/... 



s/1994/674 
English 
Page 2 



cleansing" and rape and sexual assault, in particular, have been carried out b> 
8ome of the partiee eo eystematically that they strongly appear to be the 
product of a policy, which may also be inferred from the consistent failure to 
prevent the commission of such crimes and to prosecute and punish their 
perpetrators. 

The final report includes several annexes containing reports of 
investigations and studies, which as a whole constitute an integral part of the 
report. In his letter to me of 6 May 1994, the Chairman of the Commission 
requested that the annexes be published, although for cost purposes and given 
their volume (approximately 3,000 pages) it was suggested that they be published 
in English only and funded from the remaining surplus in the Trust Fund of the 
Commission of Experte. 

I have examined the final report carefully, and I fully concur with the 
conclusions reached by the Commission. I, therefore, consider that the 
Commission has discharged its mandate entrusted to it by the Security Council in 
its resolution 780 (1992), and I am confident that the material collected and 
analysed by the Commission will greatly facilitate the task of the International 
Tribunal for the Prosecution of Persons Responsible for Serious Violations of 
International Humanitarian Law Committed in the Territory of the Former 
Yugoslavia since 1991 in carry ing out its mandate. üpon my instructions, the 
database and all of the information gathered by the Coiiinission in the course of 
its work have been forwarded to the Office of the Prosecutor of the 
International Tribunal. 

In accordance with paragraph 4 of Security Council resolution 780 (1992), I 
hereby transmit to the Council the final report of the Coimnission of Experts 
established pursuant to Security Council resolution 780 (1992). The annexes 
will be forwarded to members of the Council as soon as they become available. 



(liflned) Boutros BOUTROS-GHALI 



/... 



#> 



s/1994/674 
Engliah 
Page 3 



f 



i<« 



« 

FINAL REPORT OF THE COMMISSION OF EXPERTS ESTABLISHED 
PÜRSÜANT TO SECÜRITY COUNCIL RESOLUTION 780 (1992) 



CONTENTS 



Paraoraphe Page 



I. MANDATE, STRUCTÜRE AND METHODS OF WORK 1 - 40 

A. Mandat« i - 4 

B. Composition 5 - 7 

C. Internal working methoda 8 - n 

D. Funding of the work of the Conmiaaion 12 - 17 

E. Coordination and Cooperation with other bodies and 
Organization« 13 

F. Inveetigation methode employed by the Comroiseion • 19-26 

1. Collection and analysis of Information 20-22 

2 . Investigative missions 23 - 24 

3. Information gathering on behalf of the 
Comnieeion by certain Government s 25 

4. Confidentiality of Information 26 

Q. Plan of work of the Commiaeion 27 - 30 

H. Conclueion of the vrork of the Commiaeion 31-33 

I • Acknowledgements 34 - 37 

J. Natur« of the report 38 - 40 

II. APPLICABLE LAW 41 - 109 

A. International/non-international character of the 

conf lict 42 - 44 

B. Grave breaches of the Genevm Convention» of 1949 

and Protocols I and II 45 - 51 

C. Cuatomary international law of armed conf lict .... 52-54 



7 
7 
8 
8 



9 
9 

10 
10 



10 

11 
11 
11 

12 
12 
13 



13 



13 
15 



/... 



T. 



s/1994/674 
English 
Page 4 



CONTENTS (continu«d) 

Paragraph« PAq? 

D. Comroand responsibility 55 -* 60 16 

B • Sup«r ior Orders 61 - 62 18 

?• Reprisais 63 - 66 18 

G. Interference with humanitarian aid convoys 67-71 19 

H. Crimes against humanity 72 - 86 20 

1. Armed conflict 75 - 76 21 

2 . Protected persons 77-80 21 

3. Acts constituting crimes against humanity •••• 81-83 22 

4. Widespread and systematic nature of the acte • 84-86 23 
I . Genocide 87 '- 101 24 

1. The extent of destruction of a group ••.. 93-94 25 

2 • The groups protected 95 - 96 25 

3. Intent 97 26 

4. Acts constituting the crime of genocide 98 26 

5 • Punishable acte 99 26 

6, Culpebility 100 27 

7. The Statute of the International Tribunal for 
the Prosecution of Persons Responsible for 
Serious Violations of International 
Humanitarian Law Committed in the Territory of 

the Former Yugoslavia since 1991 •• 101 27 

J. Legal aspects of rape and other sexual asseults • • 102 - 109 27 

III. GENERAL STUDIES 110 - 150 29 

A. The military structure of the warring factions and 

the atrategies and tactics they employ 110 - 128 29 

B. -Ethnic cleansing- 129 - 150 33 






/... 



s/1994/674 
Engliah 
Page 5 



CONTENTS (continu#d) 



Paragraph« £^afi 



IV. SUBSTANTIVS riNDINGS • 151-305 

A. Th« Study of Qpitina Prijedor, a di«trict in 
north-%«r««t«rn Bosnia: all#9«d genocid« and 
massive violations of ths elementary dictatss of 

humanity "^ ' ^" 

1. Gensral dsscription 151 - 154 

2. Ssrbs take po%^r on 30 April 1992 155-158 

3. iiunsdiats consequsnces of ths Ssrbs taking 

power 159-162 

4. The major Serbian railitary Operations in the 

district ^" • ^^"^ 

5. Concentration camps and deportation 168 - 173 

6. The strategy of destruction 174 - 175 

7. The general lack of protection for non-Serbs . 176 

8. Responsibility 177-181 

9 . Conclusions ^®2 

B« The bettle and siege of Sarajevo 183 - 194 

1. Structure and location of forces in and around 

the City 184-186 

2. Location and nature of the artillery 187 

3. Frequency of shelling 188 

4. Systematic shelling of specific targets 189-190 

5. Patterns of random shelling 1^1 

6. Link between shelling activity and political 

events 1^2 - 194 

C. Sarajevo investigation 1^5 - 209 

D. Medak Pocket investigation 210 - 215 



37 



37 
37 
38 



39 



39 
40 
41 
42 
42 
43 
43 



44 
44 
45 
45 
45 



45 
46 
49 



/. 



s/1994/674 
English 
Pag« 6 



OONTSNTS ( cont inu«d ) 



V. 



B. D«tMtion f acilitlM 216 - 231 

1 • Bosnien GovttrnflMnt camp« 227 

2. Bosnian*Croat, Croatian D«fttnc« Council, 

Croatian 6ov«rniiMnt and Croatian Amy camp« • • 228 

3. "Boanian Smrb Rapublic" campa 229 • 231 

F* Rap« and oth«r forma of aaxual aaaault 232 - 253 

1. Rap« and aaxual aaaault atudys tha 

Commiaaion'a databaaa 236 * 237 

2 • Pilot atudy on rapa , 238 - 240 

3. Rapa and othar forma of aaxual aaaault t 

intarviawing victima and witnaaaaa 241 - 253 

G. Maaa gravaa 254 • 264 

H. Invaatigation of grava aitaa at OvCara naar 

Vukovar (UNPA, Sactor Eaat, Croatia) 265 - 276 

Z. Invaatigation of grava aitaa naar Pakraöka Pol Jana 

(UNPA, Sactor Waat, Croatia) 277 - 284 

J. Daatruction of cultural proparty 285 - 297 

K. Dubrovnik invaatigation 298 - 301 

L. Radiological invaatigation (UNPA, Sactor Waat) ... 302 - 305 

GENBRAL CONCLUSIONS AND RBCOMMENDATION8 306 - 321 



Sl 
52 



52 
53 
55 



56 
57 



57 
61 



62 



65 
66 
69 
70 
70 



/... 



.« I 



s/1994/674 
English 
Page 7 



r* 



Z. MANDATE, STRUCTURE AND METHODS OF WORK 

A. Mandaf 

1. On 6 Octob«r 1992 th« Security Council adopted reeolution 780. (1992). by 
which it requested the Secretary-General to eetablish a Coamiesion of Experte to 
exanine and analyee, inter alia . Information eubnitted pureuant to Security 
Council reeolutione 771 (1992) of 13 Auguat 1992 and 780 (1992) of 

6 October 1992, with a view to providing the Secretary-General with ita 
conclueiona on the evidence of grave breachee of the Geneva Conventione and 
other violatione of international humanitarian law coamitted in the territory of 
the former Yugoelavia. 

2. Furthermore, in its reeolution 787 (1992) of 16 November 1992, the Security 
Council requeeted the Commiesion, inter alia . to puraue actively ita 
inveetigatione on thie matter, in particular the practica of "ethnic cleansing". 

3« Having conaidered the recomroendationa in the Interim report of the 
Commiaaion of Experte (S/25274, annex I (hereinafter firat Interim report)), the 
Security Council decided in ita reeolution g08 fl993) of 22 February 1993 that 
an international tribunal ahould be eatabliahed for the proaecution of peraona 
reeponaible for eerioua violatione of international humanitarian law committed 
in the territory of the former Yugoalavia aince laSI. On 25-MAy_ia9J, the 
Council, by ita reeolution 827 (1993), acting under Chapter VII of the Charter 
of the United Nationa, adopted the atatute of the International Tribunal for the 
Proeecution of Peraone Reeponaible for Serioue Violatione of International 
Humanitarian Law Committed in the Territory of the Former Yugoalavia aince 1991 
contained in the report of the Secretary-General (S/25704, annex). To thia 
effect, the Council requeeted the Commiaaion, pending the appointment of the 
Proaecutor of the International Tribunal, to continue on an urgent baaia the 
collection of Information relating to ita mandate. 

4. The Commiaaion took note of referencea made to it by different Organa and 
bodiea of the United Nationa ayatem. Specifically, it took note of General 
Aaaembly reeolution 47/147 of 18 December 1992, in which the Aaeembly reaffirroed 
that all peraona who perpetrate or authorize crimea againat humanity or other 
grave breachee of international humanitarian law are individually reeponaible 
for thoae breachee and that the international Community would exert every effort 
to bring them to juetice, and called upon all partiee to provide all pertinent 
Information to the Commiaaion. 



B. Compoaition 

5. Purauant to paragraph 3 of reeolution 780 (1992), the Secretary-General 
aubmitted on 14 October 1992 a report to the Security Council (S/24657), in 
which he aet out the manner in which he intended to implement the reeolution. 
On 26 October 1992, the Secretary-General announced the appointment of the 
Chairman and four membere of the Commiaaion. 

6. Aa of 26 October 1992, the Commiaaion, whoae membera aerve in their 
peraonal capacity, conaiated of Mr. Frita Kalahoven (Netherlande) aa Chairman, 



/... 



1 



s/1994/674 
English 
Pag« 8 



Mr. M. Ch«if Ba««iouni (Egypt), Mr. William J. Fenrick (Canada), 
Mr! Ktea M'bay« (S«n«gal) and Mr. Tor)c«l Opaahl (Norway). 

7 On 19 Octob«r 1993, owing to th« raaignation of Mr. Kalshov^n for medical 
r«asona and th« untim^ly d«ath of Mr. Opaahl, th« Commiasion waa reorganized. 
Suba«qu«ntly, th« Sacr«tary-G«n«ral appoint«d Mr. Baaaiouni as Chairman and 
MS. Christin« Clsiren (Nstherlands) and Ms. Hanne Sophie Greve (Norway) as new 
members . 

C. Internal workino methods 

8. Internal working methods of the Coninission were defined in its rules of 
procedure adopted in January 1993 (S/25274, annex I, appendix). 

9. The Coimnission has held 12 sessions, at which it discussed a number of 
Substantive, methodological and organizational problems related to its 
mandate. 1/ At its final Session, the Commission unanimously adopted the 
present report. 

10. Pursuant to rule 10, paragraph 1, of its rules of procedure, the Commission 
appointed rapporteurs for several general and specific questions. Thus, 

Mr. Bassiouni was appointed Rapporteur for the Gathering and Analysis of Facta; 
Mr! Fenrick, Rapporteur for On-site Investigations as well as Rapporteur on 
Issues of Law; and Ms. Greve, Rapporteur on the Prijedor Project. Mr. M'baye 
and Ms. Cleiren were assigned to study and report on the destruction of cultural 
property and on legal aspects of sexual assault, respectively. 

11. Pursuant to rule 10, paragraph 2, of the rules of procedure, the Commission 
submitted two interim reports to the Secretary-General, which were approved by 
the Commission at its third and seventh sessions respectively (S/25274, annex I, 
and S/26545, annex (hereinafter second interim report)). 



D. Fundina o f the work of the Commission 

12. The resources to finance the work of the Commission were provided in part 
from the regulär budget of the United Nations (Office of Legal Affairs) and the 
Trust Fund for the Comnission of Experte established on 26 March 1993 pursuant 
to Security Council resolut ion 780 (1992). 

13. While the Secretary-General had indicated that he would endeavour to meet 
the expenses of the Coimnission as far as possible through existing resources, 
the Coimnission was provided with additional funding for a period of 9 months, 
from 1 December 1992 to 31 August 1993. This funding covered the compensation 
and travel of the members, as well as the travel and subsistence of staff 
members assigned from the Office of Legal Affairs. The additional funding also 
provided for general temporary assistance and permitted the recruitment of two 



14. At the end of August 1993, after the expiration of the initial budget 
period, the Coimnission was informed that funds would be allocated to cover its 

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activities until 31 December 1993 from •xiating reaourcaa, nam^ly, th« budget of 
th« Offic* of Legal Af faire. 

15 At the beginning of 1994, the Coiiwiieeion wae informed that there would be 
no'allocation to cover the activitiee of the Comniieeion from the regulär budget 
and that only three Profeeeional poete could be provided by the Office of Legal 
Af faire. All the other expendituree, including inveetigative mieeione and 
rerauneration, travel and eubeietence of the Secretariat etaff, ae well ae 
rewuneration of two secretaries and an adminietrative aeeietant, would be 
provided from the Truet Fund. 

16. A8 stated above, the Secretary-General establiehed on 26 March 1993 a Trust 
Fund to aeeiet the Coraniseion in ite work. On 24 May 1993, he requeeted 
Government» to coneider contributing to the Commieeion in terms of financial 
resources or personnel. The total amount of contributione to the Trust Fund was 
$1,320,631. The contributione to the Trust Fund, however, did not become 
effective before July/August 1993. Commission investigations were funded by the 
Trust Fund. 

17. The Coitinission's database was financed exclusively through funds provided 
by DePaul University's International Human Rights Law Institute. That financing 
amounted to over $1 million as at 30 April 1994. 2/ 



E. Coordination and cooi 
^nd oraanizations 



Xh 9th 



18. The Coiwnission has endeavoured from the very beginning of its work to 
establish Cooperation and coordination of its efforts with other United Nations 
bodies and intergovernmental and non-governmental organixations concerned with 
the Situation in the territory of the former Yugoslavia. It has noted in 
particular the call of the Commission on Human Rights, contained in its 
resolution 1992/S-2/1 of 1 December 1992, for the dosest possible coordination 
with the Special Rapporteur of the Commission, Mr. Tadeusz Mazowiecki. 



F. Investioa t lon method« emoloved bv the CommiSfion 
19. The Comnission employed three methods of investigationt 

(a) Collection and analysis of Information sent to or requeeted by the 
Commission; 

(b) Undertaking of inveetigative roissions in the territory of the former 
yugoslavia or in other countries in order to obtain additional Information, take 
testimony and, as far as possible, verify facta; 

(c) Information gathering on behalf of the Commission by certain 
Governments in different countries. 



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1. CQllaction and analvia of inforraation 

20. Pursuant to th« r«qu«ats contain#d in Security Council resolut iona 

771 (1992) and 780 (1992) and through other aourcas, the Comniasion raceivad 
Ovar 65,000 pagaa of documantation, aa wall aa printad and vidao Information, 
containing allagationa of grava braachaa of tha Ganava Convantiona and othar 
violationa of intarnational humanitarian law coonittad in tha territory of tha 
former Yugoalavia (aee annex I.A). In addition, tha Commiaaion haa aolicited 
documentation and aupplemental Information from varioua aourcea relating to tha 
aituation in tha territory of the former Yugoalavia. The analyaia of thia large 
volume of allagationa tenda to confirm the reported large-acale victimization, 
although the Commiaaion haa not alwaya baen able to verify all the Information 
contained in theae reporta. 

21. From December 1992, the Commiaaion aet up a databaae deaigned to provide a 
comprehenaive, conaiatent and manageabla racord of all reported alleged grave 
breachea of the Geneva Conventiona and othar violationa of international 
humanitarian law being committed in the territory of the former Yugoalavia. The 
inputting of Information into the databaae waa effected in the International 
Human Righta Law Inatitute of DePaul Univeraity (Chicago, United Stataa of 
America) under the auperviaion of the Rapporteur for the Gathering and Analyaia 
of Pacta, who waa alao the Preaident of the Inatitute and the Chairman of the 
Commiaaion. The Information waa received from aeveral Government a, which made 
official aubmiaaiona, aa well aa from intergovernmental and non-govarnmental 
bodiea. In addition, it included Information received from United Nationa 
bodiea. The databaae alao contained Information from open aourcea and media 



22. The databaae haa baen tranaferred to the Office of the Proaecutor of the 
International Tribunal for the Proaecution of Persona Raaponaibla for Serioua 
Violationa of International Humanitarian Law Committed in the Territory of the 
Former Yugoalavia aince 1991. 

2. Invaatiaativa miaaiona 

23. The other inveatigation method employed by the Commiaaion was to conduct 
inveatigative miaaiona in the territory of the former Yugoalavia and in other 
countriea that had received refugeea from the former Yugoalavia, in order to 
obtain additional Information and to verify facta. 

24. The Commiaaion haa undertakan 32 miasions with the aim of either preparing 
for inveatigationa or conducting tham (aee annex I.B). In all caaea, miaaiona 
wäre uaed to obtain additional Information pertaining to the Commiaaion 'a 
mandate. 



3. 



tharino on behalf of th< 
in Government s 



25. Several Governmenta aaaiatad the Commiaaion in gathering evidence, 
particularly in their reapective countriea. They are: Auatria, Germany, the 
NetherlanL. , Norway and the United States of America. 



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4. 

26. Th« CoamLmmLon r«c«iv«d « nuadMr 6t confid^ntial doexuMnts, ••p«cially 
t«stifiioni«s of victiJBS or of witn^u«« to grav« br«ach«8 of international 
humanitarian law. In ord«r to maintain th« confid«ntiality of th« Information 
obtain«d, th« Conniaaion workad out a numb«r of ««curity proc«dur*a and took 
moam practical iMaaurea to ansur« th«B. 



G. Plan of yyork of tha Commiaaion 

27. Th« Comiaaion, in ita firat intarim raport (8/25274, annax I, paraa. 65 
and 66), adopted a plan of work, which includadt 



(b 

(i 

(ii 

(iii 



(tv 



Updating of ita databaa«; 

Conducting aalactiva in-dapth invaatigationa in tha following 

Maaa killing and daatruction of propartyi 

Traatmant of priaonara and dataina«a; 

Syatamatic aaxual aaaaulta; 

"Sthnic claanaing". 



28. Thia plan of yiork waa andoraad by th« 8«cratary-Ganaral in hia lattar datad 
9 Fabruary 1993 addraaa^d to th« Praaid^nt of tha 8acurity Council (ibid.). 



29. 8ubaaquantly, th« Commiaaion addad to ita ap«cific projacta 
atudy on Prij^dor. 



a ap^cial caa« 



'I 1 



30. Owing to p«raonn«l and timm conatrainta, aa vwill aa limitad financial 
raaourcaa, th« Cooniaaion waa compallad to adopt a aalactiva approach in ita 
work. It waa not practicabla to invaatigata axhauativaly or oth^rwia« attampt 
to varify «vary allagmtion of a violation of intarnational humanitarian law 
comiittad in tha tarritory of tha formar Yugoalavia. In ita choica and mathod 
of conducting raaaarch projacta or invaatigationa, tha Commiaaion andaavourad, 
at all timaa, to ba both impartial and balancad. 



la Commiaaion 



/. 



31. In ita raaolution 827 (1993), tha Sacurity Council notad that panding tha 
appointmant of tha Proaacutor for tha Intarnational Tribunal for tha formar 
Yugoalavia, tha Commiaaion ahould continua on an urgant baaia tha collaction of 
Information ralating to ita mandata. 1/ 

32. On 14 Dacambar 1993, tha Commiaaion waa informad that in tha light of tha 
aatabliahmant of tha Intarnational Tribunal and tha appointmant of ita 
Proaacutor, tha Cooniaaion ahould final isa ita raport and complata tha tranafar 
of ita filaa, documanta and databaaa to tha Tribunal by 30 April 1994. 



K 



S/1994/674 
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33. As part of th« conclusion of its work, th« Coonission ha« prsparad for th« 
transition with th« Tribunal. By a lattar datad 2 March 1994, tha than Daputy 
to tha Undar-Sacratary-Ganaral in charga of tha Off ica of Lagal Af faira 
raquaatad tha Cooniaaion to tranafar all information at ita diapoaal to tha 
Proaacutor'a Off ica. Tha tranafar of Coamiasion docvunantation, filaa and 
aquipmant waa cooiplatad by tha tima tha prasant raport waa aubmittad to tha 
Sacratary-Ganaral • 

Z. AcknowladQatnanta 

34. Tha Coamiaaion wishaa to acknowladga with gratituda tha support it racaivad 
from tha following Govarnmantas Auatria, Boania and Harzagovina, Canada, 
Croatia, Czach Rapublic, Danmark, Finland, Franca, Garmany, Hungary, Icaland, 
Liachtanatain, Micronaaia (Padaratad Stataa of), Morocco, Natharlanda, 

Naw Zaaiand, Norway, Slovania, Swadan, Switzarland, Turkay, Unitad Kingdom of 
Graat Br itain and Northarn Iraland, Unitad Stataa of Amarica and Yugoslavia. 

35. Thia Support was in tha natura of financial contributions to tha Trust 
Fund, ±/ contributad paraonnal, officially submittad raports, assistanca in 
taking taatimony and ganaral support of tha Coamiaaion 's invaatigationa, 
particularly by tha Govarnmanta of Croatia, Boania and Harzagovina, Slovania and 
tha Fadaral Rapublic of Yugoalavia. 

36. Tha CoKxniaaion also wishaa to acknowliKiga tha logiatical and administrativa 
support of tha Unitad Nationa Protaction Forca (UNPROFOR). 

37. Laatly, tha Coomission gratafully acknowladgaa tha contributiona of many 
non-govarnmantal organizations, not all of which can ba apacifically rafarrad to 
in thia raport (aaa annax I.C for a complata list), but tvro daaarva particular 
roantion: Phyaiciana for Human Rights and Human Righta Watch Halsinki. 

J. t^^t^ygf 9g thf gfWrt 

38. Tha Commiaaion's mandata ia uniqua in tha hiatory of tha Unitad Nationa. 
It ia alao aignificantly broad. 

39. Tha praaant raport raflacta only part of tha axtanaiva %^ork and analyaia 
dona by tha Coamiaaion undar difficult and raatrictiva circumatancaa. Tha mora 
complata racord of ita %#ork and findinga ia containad in tha annaxaa, which tha 
Commission conaidara to ba an intagral part of tha raport« 

40. Tha Coamiaaion axpacta that tha Sacratary*Ganaral will publiah tha annaxaa 
so that tha praaant raport will ba complata. £/ 



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II. APPLICABLE LAW 

41. The CoimniBsion ha« cho««n to commant on ael«ct«d l«gal i««u«« b«cau«« of 
th«ir particular «ignificanc« for und«r«tanding th« l«gal cont«xt related to 
violation« of international humanitarian law conmitted in the territory of the 
former Yugoalavia. The Cornini««ion'« mandate i« to provide the Secretary-General 
with it« conclu«ion« on the evidence of «uch violation« and not to provide an 
analyais of the legal i««ue«. It will be for the International Tribunal to roake 
legal finding« in connection with particular ca«e«« 



A. Internat ional/non- internati onal character of the conflict 

42. Claasification of the variou« conflict« in the former Yugo«lavia a« 
international or non-international depend« on important factual and legal 
i««ue«. If a conflict i« cla««ified a« international, then the grave breaches 
of the Geneva Convention«, i/ including Additional Protocol I, 2/ apply a« well 
a« violation« of the law« and cuatom« of war. The treaty and cuetomary law 
applicable to international armed conflict« i« well-e«tabli«hed. The treaty law 
deeigned for internal armed conflict« i« in common article 3 of the Geneva 
Convention«, Additional Protocol II of 1977, 3/ and article 19 of the 1954 Hague 
Convention for the Protection of Cultural Property in the Event of Armed 
Conflict. 9/ Theee legal «ource« do not u«e the terms "grave breache«" or '*war 
crime«" • Further, the content of cu«tomary law applicable to internal armed 
conflict i« debatable. A« a reault, in general, unle«« the partie« to an 
internal armed conflict agree otherwise, the only offence« committed in internal 
armed conflict for which univeraal juriadiction exi«t« are "crime« againat 
humanity" and genocide, which apply irreapective of the conflict»' 

cla8«if ication. 

43. To date, the major conflict« in the territory of the former Yugo«lavia have 
occurred in Croatia and in Bo«nia and Herzegovina. Determining when the«e 
conflict« are internal and when they are international i« a difficult ta«k 
becauae the legally relevant facta are not yet generally agreed upon. Thi« task 
i« one which mu«t be performed by the International Tribunal. 

44. However, a« indicated in paragraph 45 of it« fir«t Interim report, the 
Commi««ion i« of the opinion that the character and complexity of the armed 
conflict« concerned, combined with the web of agreement« on humanitarian law 
that the partie« have concluded among themaelve«, ju«tifie« the Commi««ion*« 
approach in applying the law applicable in international armed conflict« to the 
entirety of the armed conflict« in the territory of the former Yugoelavia. 



B. Grave breache« of the Gen eva Convention« of 1949 and 
Protocol« I and II 

45. "Grave breache«" are «pecified major violation« of international 
humanitarian law which may be punished by any State on the ba«i« of univer«al 
juriadiction. Grave breache« are listed in article 50 of the Fir«t Geneva 
Convention (wounded and «ick), article 51 of the Second Geneva Convention 
(maritime), article 130 of the Third Geneva Convention (prieoner« of war), and 



/... 



s/1994/674 
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articl« 147 of the Fourth Geneva Convention ( civil ians) of 1949. Grave breachee 
are also lieted in articles 11, paragraph 4, and 85 of Additional Protocol I of 
1977. The "grave breachee" provisions of the Geneva Conventions and Protocol I 
are only relevant during an international armed conflict. Common article 3 of 
the four Geneva Conventions and Additional Protocol II of 1977 are both 
applicable during internal armed conflicts, but neither of these documenta makes 
any reference to grave breaches. 

46. Under all four Conventions, grave breaches prohibit, inter alia , wilful 
killing, torture, rape or inhuman treatment of protected persona, including 
biological experiments, wilfully causing great suffering or serious injury to 
body or health, and extensive destruction and appropriation of property, not 
justified by military necessity and carried out unlawfully and wantonly. 

47. In the case of prisoners of war, it is also a grave breach to compel a 
prisoner of war to serve in the forces of the hostile power or to deprive him of 
his rights to a fair and regulär trial. In the case of civilians in the hands 
of the adverse party, it is also a grave breach to: 



(a) Unlawfully deport or transfer a protected person; 

(b) Unlawfully confine a protected person; 

(c) Compel a protected person to serve in the forces of a hostile power; 

(d) Wilfully deprive a protected person of the rights of fair and regulär 
trial prescribed; 

(e) Take hostages. 

48. Article 11 of Additional Protocol I makes a number of medical practices 
grave breaches of the Protocol. 

49. Under article 85, paragraph 3, of Additional Protocol I, the following acti 
constitute grave breaches if committed wilfully, in violation of the relevant 
provisions of the Protocol, and causing death or serious injury to body or 
health: 



"(a) Making the civilian population or individual civilians the 
object of attack; 

"(b) Launching an indiacriminate attack affecting the civilian 
population or civilian objects in the knowledge that such attack will cau 
excessive loss of life, injury to civilians or damage to civilian 
objects . • . ; 

-(c) Launching an attack against works or installationa containing 
dangerous forces in the knowledge that such attack will cause excessive 
loss of life, injury to civilians or damage to civilian objects ...; 

"(d) Making non-defended localities and demilitarized zones the 
object of attack; 



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"(•) Making a parson th« objact of attack in tha knowladga that he is 
hora de combat i 

**(f) The perfidious uee ••• of the dietinctive emblem of the red 
crose, red crescent or red lion and sun or of other protective eigne 
recognized by the Conventione or thie Protocol." 

50. Additional Protocol I also providee, in article 85, paragraph 4 that 
certain acte are grave breachee when comnitted wilfully and in violation of the 
Conventione or Protocol, namelyx 

"(a) The tranefer by an Occupying Power of parte of its own civilian 
Population into occupied territory it occupiee or the deportation or 
tranefer of all or parte of the population of that territory within or out 
of thie territory • • . ; 

"(b) Unjuetifiable delay in the repatriation of prieonere of war or 
civiliane; 

"(c) Practicee of apartheid and other inhuman and degrading practices 
involving outragee upon personal dignity, based on racial discrimination; 

""(d) Making the clearly-recognized hietoric monumenta, works of art 
or placee of worship which constitute the cultural or spiritual heritage of 
peoplee and to which special protection has been given by special 
arrangement , ••• the object of attack, causing ae a reeult extensive 
deetruction thereof, where there is no evidence of [prior use of such 
objecte in support of the adverse party'e military effort], and when such 
(placee] are not located in the ixnmediate proximity of military objectives; 



""(e) Depriving any person protected by the Conventions [or the 
Protocol] of fair and regulär trial.** 

51. It muet be noted that the Statute of the International Tribunal refers to 
grave breachee of the Geneva Conventione of 1949 in article 2 and to violatione 
of the lawe or cuetome of war in article 3. It doee not refer explicitly to 
grave breachee of Additional Protocol I. Many of the grave breachee of 
Additional Protocol I aleo constitute violations of the lawe and cuetome of war 



C. Custoraarv international law of armed conflict 

52. It ie neceeeary to distinguish between customary international law 
applicable to international armed conflict and to internal armed conflict« The 
treaty-baeed law applicable to internal armed conflicte ie relatively recent and 
ie contained in common article 3 of the Geneva Conventione, Additional 
Protocol II, and article 19 of the 1954 Hague Convention on Cultural Property. 
It ie unlikely that there is any body of customary international law applicable 
to internal armed conflict which does not find its root in theee treaty 
provieione* It ie probable that common article 3 would be viewed ae a Statement 
of cuetomary international law, but unlikely that the other inetrumente would be 
eo viewed. In particular, there doee not appear to be a customary international 



•&. 



s/1994/674 
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l«w applicabl« to internal arnwd conflict« which includaa tha concapt o£ war 
crifflaa. 

53. Tha body of cuatomary intarnational law applicabla to international armed 
conflicta includea tha concept of war crimaa, and a wida ranga of proviaiona 
alao atated in Hague Convention IV of 1907, the Geneva Conventiona of 1949 and 
to aome extent, the proviaiona of Additional Protocol I. ' 

54. It muat be obaerved that tha violationa of the lawa or cuatoma of war 
referred to in article 3 of the etatute of the International Tribunal are 
offencea when comraitted in international, but not in internal armed conflicts 



D. Conmand regponalbtni-Y 

55. The Comraiaaion addreaaed the matter of comnand raaponaibility in 
paragrapha 51 through 53 of ita firat Interim report aa followa: 

"51. A peraon who givea the order to comrait a war crime or crime against 
humanity ia equally guilty of the offence with the peraon actually 
coramitting it. Thia principle, expreaaed already in the Geneva Conventiona 
of 1949, appliea to both the military auperiora, whether of regulär or 
irregulär armed forcee, and to civilian authoritiea. 

"52. Supertora are moreover individually reapoi^aible for a war crime or 
crime againat humanity committed by a aubordinate if they knew, or had 
Information which ahould have enabled thera to conclude, in the 
circumatancaa at the time, that the aubordinate waa comraitting or waa going 
to comrait auch an act and they did not take all feaaible meaaurea within 
their power to prevent or repreaa the act. 

"53. Military comroandera are under a special Obligation, with reapect to 
membera of the armed forcea under their command or other persona under 
their control, to prevent and, where naceaaary, to suppraaa auch acta and 
to report them to competent authoritiea." 

56. The Comraiaaion notea with aatiafaction that article 7 of the atatute of the 
International Tribunal uaea an aaaentially aimilar formulation. 

57. The doctrine of command reaponsibility is directed primarily at military 
Commander« becauae auch persona have a personal Obligation to ensure the 
maintenance of diacipline among troope under their command. Moat legal cases in 
which the doctrine of comraand reaponsibility haa been conaidered have involved 
military or paramilitary accuaed. Political laadera and public officiala have 
alao been held liable under thia doctrine in certain circumatancaa. 

58. It ia the view of the Commission that the mental alement necesaary when the 
Commander haa not given the offending order ia (a) actual knowledge, (b) such 
aerioua peraonal dereliction on the part of the coimnander aa to conatituta 
wilful and wanton diaregard of the poaaibl« conaequencea, or (c) an Imputation 
of constructive knowledge, that ia, deapite pleaa to the contrary, the 
Commander, under the facta and circumatancaa of the particular caae, muat have 



s/1994/674 
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.«». 



known of th« ottmncmm charged and acquiesced therein. To dat«rmin« wh«ther or 
not a comnander muat hav# knovm about th« acta of his subordinataa, one might 
conaidar a numbar of indicaa, including: 

(a) Tha numbar of illagal acta; 

(b) Tha typ« of illagal acta; 

(c) Tha acopa of illagal acta; 

(d) Tha tima during which tha illagal acta occurred; 
(a) Tha numbar and typ« of troopa involvad; 

(f) Tha logiatica involvad, if any; 

(g) Tha gaographical location of tha acta; 
(h) Tha widaapraad occurrenca of tha acta; 
(i) Tha tactical tempo of operationa; 

(j) Tha modua operandi of aiinilar illegal acta; 

(k) The officera and ataff involvad; 

(1) The location of the contnander at tha time. 

59. The military Commander ia not abaolutaly reaponaible for all offencea 
committed by hia aubordinataa • laolated offencea may be committed of which he 
haa no knowledge or control whataoever. Aa a fundamental aapect of command, 
however, a Commander doea have a duty to control hia troopa and to take all 
practicable meaaurea to anaure that they comply with the law. The argumenta 
that a Commander haa a weak peraonality or that the troopa aaaigned to him are 
uncontrollable are invalid* In particular, a military Commander who is assigned 
command and control over armed combatant groupa who have engaged in war crimea 
in the paat ahould refrain from employing auch groupa in combat, until they 
clearly demonatrate their Intention and capability to comply with the law in the 
future. Thua, a Commander haa a duty to do averything reaaonable and 
practicable to prevent violationa of the law. Failure to carry out auch a duty 
carriea with it reaponaibility. 

60. Laatly, a military Commander haa the duty to puniah or diacipline thoae 
under hia command whom he knowa or haa reaaonable grounda to know committed a 
violation. 



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B. SuDTior ordar« 



61. In Paragraph 54 of ita firat Interim 
following atatemant; 



raport, tha Convniaaion mada tha 



-54. A subordinate who haa carried out an order of a auperior or acted 
undar governxnant inatructiona and tharaby haa cominitted a war crime or a 
crime againat humanity, may raiae the ao-callad defence of auperior ordera, 
claiming that he cannot be held criminally liabla for an act he waa ordered 
to comroit. The Coimnisaion notea that the applicable treatiea unfortunately 
^^^ «ilent on the matter. The Comraiaaion'a Interpretation of the customary 
international law, particularly aa atated in the Nuremberg principlea, is 
that the fact that a peraon acted purauant to an order of hia Government or 
of a auperior doea not relieve him from reaponaibility under international 
law, provided a moral choice waa in fact available to him. - 

62. The Commiaaion notea with aatiafaction that article 7, paragraph 4, of the 
atatute of the International Tribunal adopta an eaaentially aimilar approach on 
thia aubject. 



F. Repriaala 

63. A repriaal muat be diatinguished from a aimple act of retaliation or 
vengeance. An unlawful act committed under the guiae of retaliation or 
vengeance remaina unlawful, and the claim of retaliation or vengeance ia no 
defence. 

64. A repriaal ia an otherwiae illegal act reaorted to after the adverae party 
haa himaelf indulged in illegal acta and refuaed to deaiat therefrom after being 
called upon to do ao. The purpoae of a repriaal ia to compel the adverse party 
to terminate ita illegal activity. It muat be proportionate to the original 
wrongdoing and muat be terminated aa aoon aa the original wrongdoer ceaaea hia 
illegal actione. The proportional ity ia not atrict, for if the repriaal ia to 
be effective, it will often be greater than the original wrongdoing. 
Nevertheleaa, there muat be a reaaonable relationahip between the original wrong 
and the repriaal meaaure. 

65. However, repriaala againat the following categoriea of peraona and objecta 
are apecifically prohibited: 

(a) The wounded, aick, personnel, buildinga or equipment protected by the 
Firat Geneva Convention (art. 46); 

(b) The wounded, aick and ahipwrecked peraona, the peraonnel, the veaaela 
and equipment protected by the Second Geneva Convention (art. 47); 

(c) Priaonera of war (Third Geneva Convention, art. 13 and Additional 
Protocol I, art. 44); 



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(d) Civilians in the hands of a party to the conflict of which they 
not national«, including inhabitants of occupied territory (Fourth Geneva 
Convention, art. 33 and Additional Protocol I, art. 73); 

(e) Civilians (Additional Protocol I, art. 51, para. 6); 

(f) Civilian objects (Additional Protocol I, art. 52, para. 1); 

(g) Cultural objects and placea of worship (Additional Protocol I, 
art. 53 (c)); 



(h) Objects indispensable to the survival of the civilian population 
(Additional Protocol I, art. 54, para. 4); 

(i) The natural environment (Additional Protocol I, art. 55, para. 2); 

(j) Works and installations containing dangerous forces (Additional 
Protocol I, art. 56, para. 4). 

66. There is no ban on reprisals contained in coromon article 3 and Additional 
Protocol II applicable to internal armed conflict. In international armed 
conflicts to which the four Geneva Conventions and Additional Protocol I apply, 
lawful reprisals as defined above must be directed exclusively against 
combatants or other military objectives subject to the limitations contained in 
the Geneva Conventions, Protocol I and customary international law of armed 
conflicts. In international armed conflicts where Additional Protocol I does 
not apply, reprisals may be directed against a much wider category of persons 
and objects, but subject to the limitations of customary international law of 
armed conflicts. 



G. Interference with humanitarian aid convovs 

67. Interference with humanitarian aid convoys is a practice which has been all 
too prevalent in the various conflicts in the former Yugoslavia. 

68. The Commission is of the view that, when and where the law relating to 
international armed conflicts applies, the provisions of article 54 of 
Additional Protocol I are also applicable. This article states in part: 

**1. Starvation of civilians as a method of warf are is prohibited. 

**2. It is prohibited to attack, destroy, remove or render useless objects 
indispensable to the survival of the civilian population, such as 
foodstuffs, agricultural areas for the production of foodstuffs, crops, 
livestock, drinking water installations and supplies and Irrigation works, 
for the specific purpose of denying them for their sustenance value to the 
civilian population or to the adverse Party, whatever the motive, whether 
in Order to starve out civilians, to cause them to move away or for any 
other motive. •• 



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69. Th« US« of starvation aa a method of war, regardless of the modalities 
used, ia alao contrary to tha customary law applicable in international armed 
conflicts. 

70. The Commission also consider« article 70, paragraphs 2 to 4, of Additional 
Protocol I to apply: 

-2. The parties to the conflict and each High Contracting Party shall 
allow and facilitate rapid and unimpeded passage of all relief 
consignments, equipment and personnel provided in accordance with this 
Section, even if such aasistance is destined for the civilian population of 
the adverse party. 

"3. The parties to the conflict and each High Contracting Party which 
allow the passage of relief consignments, equipment and personnel in 
accordance with paragraph 2: 

-(a) Shall have the right to prescribe the technical arrangements, 
including search, under which such passage is permitted; 

-(b) May make such permission conditional on the distribution of this 
assistance being made under the local supervision of a Protecting Power; 

-(c) Shall, in no way whatsoever, divert relief consignments from the 
purpose for which they are intended nor delay their forwarding, except in 
cases of urgent necessity in the interest of the civilian population 
concerned. 

-4. The parties to the conflict shall protect relief consignments and 
facilitate their rapid distribution.** 

71. The Commission deplores any acta taken to interfere with humanitarian aid 
convoys, as the safe and expeditious passage of these convoys is essential to 
the well-being of the civilian population. 

H. Crimes a cainat humanitv 

72. Article 5 of the Statute of the International Tribunal affirms the 
competence of the International Tribunal to prosecute persons committing -crimes 
against humanity", which are defined as specified acta "committed in armed 
conflict, whether international er internal in character, and directed against 
any civilian population,- such as national, political, ethnic, racial or 
religious groups. 

73. The definition of -crimes against humanity- in article 5 of the Statute 
codifies accepted principles of international law applicable eroa omnea , Aa 
ascertained by the International Military Tribunal at Nuremberg, there are 
-elementary dictates of humanity- to be recognized under all circumstances. The 
General Assembly in its resolution 95 (I) of 11 December 1946 affirmed the 
principles of international law recognized by the Charter of the Nuremberg 
Tribunal and the judgement of the Tribunal. 10 / 



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74. The NurMiberg application of -crime« againet humanity- wa« a reaponse to 
tha shortcoming in international law that many crime« committed during the 
Second World War could not technically be regarded aa war crime« ?t^gtgt9 ?^"ffM 
on account of one or several element«, which were of a different natura. It 
wa«, therefore, conceived to redre«« crime« of an equally «eriou« character and 
on a va«t «cale, organized and «yatematic, and moat ruthlo««ly carried out. 



1. Armed conflict 

75. Crime« againat humanity apply to all context«. They are not, thorefore, 
confined to «ituation« of international armed conflict, but also apply to all 
armed conflict« including internal one« - civil war« and inaurrection - and 
whatever caau« mixtu« may ariae in between internal and international armed 
conflict. Thu«, it include« all armed conflict«, whether they are of an 
international or non-international character. However, not every act committed 
by force of arm« i« an armed conflict; a genuine armed conflict ha« to be 
di«tingui«hed from a mere act of banditry or an unorganized and «hort-lived 
inaurrection. Crime« againat humanity are al«o no longer dependent on their 
linkage to crime« againat peace or war crime«. 

76. Article« 2 and 3 of the atatute of the International Tribunal for the 
Proaecution of Pereon« Reeponsible for Seriou« Violationa of International 
Humanitär ian Law Coimnitted in the Territory of the Former Yugoalavia aince 1991 
addrea« grave breachea of the Geneva Conventiona of 1949 and violationa of the 
lawa and cuatoma of war. Article 5, which concerna crimea againat humanity, 
contain« minirouro proviaiona which muat be reapected, a fortiori, whether or not 
article« 2 or 3 are applicable to a specific conflict. 



2. Protected oereon« 

77. Article 5 of the «tatute of the International Tribunal protecta "any 
civilian population", which undoubtedly includea the whole of the population« of 
the area afflicted by the armed conflict, without any adverse distinction baaed, 
in particular, on race, nationality, religion or political opinion. Refugeea 
are not different from other civil iana, and aa auch are protected within the 
meaning of "civilian population-. "Civilian population" ia uaed in this context 
in contradiatinction to combatanta or membera of armed forcea. 

78. It seema obvioua that article 5 appliea firat and foremoat to civiliana, 
meaning peopl# who are not combatanta. Thia, however, should not lead to any 
quick concluaiona concerning people who at one particular point in time did bear 
arme. One practical example: in the former Yugoalavia, large-acale arbitrary 
killinga were one of the hallmarka of attacka by a given group. Information 
about auch arbitrary killinga wa« then uaed by the aame group to inatill fear 
and demand total subjugation of the other group in other areaa aa well. Many of 
the moat barbaroua onalaughta on villagea atarted with heavy artillery 
bombardmenta followed by the villagea being atormed by infantry in tandem, while 
paramilitary groupa aought the inhabitanta in each and every houae. A head of 
family who under auch circumatancea triea to protect hia family gun-in-hand doea 
not thereby loae hia atatua aa a civilian. Maybe the same ia the caae for the 



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8ole policeroan or local defence guard doing the aam«, even if they joined hands 
to try to pr#vent the cataclysm. Information of the overall circurostancea is 
relevant for the Interpretation of the Provision in a spirit consistent with ita 
purpoee. Under such circumstances, the distinction between improvised self- 
defence and actual military defence may be subtle, but none the less important. 
This is no less so when the legitimste authorities in the area - as part and 
parcel of an overall plan of destruction - had previously been given an 
Ultimatum to arm all the local defence guards* 

79. The International Military Tribunal at Nuremberg stated the following 
concerning crimes against humanity and the Import ance of the overall 
circumstances s 

**The defendant contends that stealing the personal property of Jews 
and other concentration c£unp inmates is not a crime against humanity. But 
under the circumstances which we have here related [emphasis added], this 
plea is and must be rejected. What was done was done pursuant to a 
government policy, and the thefts were part of a program of extermination 
and were one of its objectives. It would be a stränge doctrine indeed, if^ 
where part of the plan and one of the objectives of murder was to obtain 
the property of the victim, even to the extent of using the hair from his 
head and the gold of his mouth, he who knowingly took part in disposing of 
the loot must be exonerated and held not guilty as a participant in the 
murder plan. Without doubt all auch acta are crimes against humanity and 
he who participates or plays a consenting part therein is guilty of a crime 
against humanity." 11 / 

80. It is significant to note that Protocol II to the Geneva Conventions of 
1949 Relating to the Protection of Victime of Non-International Armed Conflicts 
addresses "fundamental guarantees" in article 4 and includes in the protected 
group "all persons who do not take a direct part or who have ceased to take part 
in hostilities". • 



3. Acts constitutino crimes aoainst humanity 

81. The different acte constituting crimes against humanity are enumerated in 
article 5 of the Statute of the International Tribunal for the Prosecution of 
Persons Responsible for Serious Violations of International Humanitarian Law 
Committed in the Territory of the Former Yugoslavia since 1991. Such acte are: 
"murder, extermination, enslavement, deportation, imprisonment, torture, rape, 
persecutione on political, racial and religious grounds and other inhumane 
acte". "Other inhumane acte" covers serious crimes of a natura similar to the 
other crimes cited. It is not equally obvious if the eiusdem oeneris principle 
of Interpretation will rule out a wider Interpretation. It is necessary to 
ascertain that the acte included in the concept of "crimes against humanity" 
correspond to what is already considered part of international customary law. 

82. In the context of crimes against humanity, it is relevant to observe that 
the same kind of prohibited acta listed in common article 3 (relevant to 
conflicts not of an international character) in the four Geneva Conventions of 
1949, and in Protocol II to the Geneva Conventions are mere codification of 



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.l«B«nt.rv dictat.. of humanity. Articl« 3 prohibit. -viol.nc. to U£. *nd 

n^u^;; t.S"g o? ".taS" outr.g.. upon p.r.on.1 dignity, in P«ticular 
hum!ll!4ina and d.grading tr.atm.nt, and th. pa.aing of ..nt.nc. and th. 
c'rtiJg out of i:2cution. without pr.viou. 3udg«.nt pronounc.d by • "^ «^^ 
conitiJu.nt court, affording .11 th. judicial guarant... which «• ""9nir.d 
! 2!l«In.-hi. bv civillz.d p.opl.«-. Articl. 4 ban. "viol.nc. to th. lif., 
i^iitHnf iJyii«i or mIntJ! S.ll-b.ing of p.r.on., in particular murd.r. a. 
^;i';. «u:J^Ji;ti«.nt .uch a. tortur., mutilation or any ^-^-^JZ^^Z 
^nl.IILnt; colLctiv. puni.hin.nt; taking of ho.tag..; act. of t.rrorism, 
o^t«^^ uion p.r.onal Signity, in particular humiliating and d.grad.ng 
trilt^nt^apT .nforcd Prostitution and any form of ind.c.nt assaults, 
iI"iTind tSI'.;;'. tradS in all th.ir form.; pillag., and thr.at. to commit 
■lav.ry ana tn. £orm.r Yugo.lavia sign.d Protocol II on 

"'.::. «"ISr-Ii":; It «It .«- ...y? -itKc». r...rv«io„., d.cl.r«io„. 
or objections. 

83. Crim.. again.t humanity ar. not confin.d ^° »i^^^^""- ^^-'^^^J^r or'"" 
.« ir^i-mnt. to d.Btrov. in whol. or in part, a national, .thnical, raciai or 
«lg!;« grou" « iuch, which ar. pr.condition. for g.nocid. ^rim.. again.t 
h^i-nltv ari h4w.v.r, ..riou. int.rnational violation. dir.ct.d agaxnst th. 
p^^t^ctid'^;.'«:: in'contradi-tinction to a fat. ^'•iJi^'^^'^-.^J^^J^ " ' 
.id.-.ff.ct, for .xampl., of a military op.ration dictatad by mUitary 

n.c.a.ity. 



4. w<d«.pr.ad »^r^A avate ff^^ie natur. of th. «gt? 

84 I.olat.d act. con.tituting off.nc, .uch a. «tra-judicial .x.cution. or 
oJ;.rclK,n crim.. puni.habl. und.r municipal law, do -t gua ify .. crim.. 
againat humanity by th«n..lv... Th. act. mu.t b. part o< / f^^^^ «^ ^„ , 

Sr..cution or di.crimination. In addition, th. act. mu.t b. carriad out ^n a 
^^tl^atirway or by m.an. of a ma.. action. Thu., th. numb.r of vxcta.m. and 
SrU^ritLnrrchiract.ri.ticaUy high. B.cau.. th. p.rp.trator. hav. a 
?:^n "t^n containing th. .l«n.nt. d..crib.d abov., ^^J-J "-^/^^^^^^r^f'" '' 
.am. m.an. or act. again.t th.ir victim.. It x. th. "yj«"f ^%!""" °. . 
victimization again.t th. prot.ct.d group which ^^ •"•;ii'^;„,nt.r"St It i. 
numb.r of int.rvi«»... r.port.d that som. p.r.on. had b..n cructft.d, ^uc i^ 
n^n.e...arv that all victim. of th. prot.ct.d group b. crucifi.d or that thi. 
p^rti'nrSh^. act b. r.cogniz.d in and of if.lf to b. P*f «^J^«^« 
J«ii.t hu««»tty. It i. th. ov.rall cont.xt of larg.-.cal. ^^f ^J"^^^" . 
carrild out a. part of a co«non plan or d..ign which go.. to th. .l.m.nt of 

ay.twnaticity. 

BS It «hould b. not.d that th. «n-uing up.urg. in crim.. that ^°^^*^*l^.. 
U;.ril ;r;:;idown of law and ord.r do.. not qualify a. «^;,*^;tS't„;:;::ii^; 
How.v.r. a g.n.ral br.akdown in law and ord.r may b. a pr«n.ditat.d ^"«""^"^ 
;°:!t";i;n'':ar.fully orch..trat.d to hiü. th. t-. natur. ofth.int.nd.d härm. 
Thu., it .hould not b. acc.pt.d at fac. valu. that th. P^'^P«"**»","* '"•"^^ 
unco^trolLd .l«n.nt., .-p.cially not if th... .l«n.nt. t«««; -i"^'^ 
.xclu.iv.lY group. al.o oth.rwi.. di.criminat.d again.t and p.r..cut.d. 
Snwiuinjni.rto'^manag., pro..cut. and puni.h uncontroll«! .l«n.nt. may b. 



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another indication that th««« •loment» are, in reality, but a usttful tool for 
tho impl«ii«ntation of a policy of crime againet humanity. ," 

86. Crime« againat humanity may also amount to extermination of national^ 
ethnical, racial^ religious or other groupe^ whether or not the intent thmt 
makes such crimes puniahable as genocide can be proven, They may alao, through 
inhumane acta, amount to large-scale human degradation, The scale and nature of 
such crime« become of special significance and of concern to the international 
coitwiunity because of the abhorrent character of the overall policy, the means 
employed to carry out the policy and the number of victime it produces. 



Z« Genocide 

87. The 1948 Convention on the Prevention and Punishment of the Crime of 
Genocide states that -genocide Is a crime under international law, contrary to 
the spirit and aim« of the United Nation« and condemned by the civilized world", 
and that -at all periods of history genocide has inflicted great losses on 
humanity-. 12/ 

88. The Convention was manifest ly adopted for humanitarian and civilizing 
purposes. Its objectives are to safeguard the very existence of certain human 
groups and to affirra and emphasize the most elementary princi^ples of humanity 
and morality. In view of the rights involved, the legal obligations to refrain 
from genocide are recognized as eraa omnes> 

89. When the Convention was drafted, it was already envisaged that it would 
apply not only to then existing forma of genocide, but also -to any method that 
might be evolved in the future with a view to destroying the physical existence 
of a group-. 12/ As emphasized in the preamble to the Convention, genocide has 
marred all periods of history, and it is this very tragic recognition that gives 
the concept its historical evolutionary nature. 

90. The Convention must be interpreted in good faith, in accordance with the 
ordinary meaning of its terms, in their context, and in the light of its object 
and purpose. Moreover, the text of the Convention should be interpreted in such 
a way that a reason and a meaning can be attributed to every vrord. No word or 
Provision may be disregarded or treated as super fluou«, unless this is 
absolutely necessary to give effect to the terms read as a whole. H/ 

91. Genocide is a crime under international law regardless of -whether 
committed in time of peace or in time of war" (art. I). Thus, irrespective of 
the context in which it occurs (for example, peace time, internal strife, 
international armed conflict or whatever the general overall Situation) genocide 
is a punishable international crime. 



92. The acte specified in thi 
destroy, in whole or in part, 
as such- (art. II) . 



Convention must be -committed with intent to 
i national, ethnical, racial or religious group. 



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1. Th« axf nt of deatruction of a oroup 

93. Deatruction of a group in whol« or in part do«a not m«an that th« group in 
it» entirety muot bm exterminatad. The worda "in whole or in parf were 
inserted in the text to make it clear that it ia not necesaary to aim at killing 
all the members of the group. !£/ 

94. If essentially the total leaderahip of a group ia targeted, it could also 
amount to genocide. Such leaderahip includea political and adminiatrative 
leadera, religioue leadera, academica and intellectuala, buaineaa leadera and 
othera - the totality per ae may be a atrong indication of genocide regardlesa 
of the actual numbera killed. A corroborating argument will be the fate of the 
reat of the group. The character of the attack on the leaderahip rouat be viewed 
in the context of the fate or what happened to the reat of the group. If a 
group haa ita leaderahip exterminated, and at the aame time or in the wake of 
that, haa a relatively large number of the membera of the group killed or 
Bubjected to other heinoua acta, for example deported on a large acale or forced 
to flee, the cluater of violationa ought to be conaidered in ita entirety in 
Order to Interpret the proviaiona of the Convention in a apirit conaiatent with 
ita purpoae. Similarly, the extermination of a group* a law enforcement and 
military peraonnel may be a aignificant aection of a group in that it rendera 
the group at large defenceleaa againat other aüduaea of a aimilar or other 
natura, particularly if the leaderahip ia being eliminated aa well. Thua, the 
intent to deatroy the fabric of a aociety through the extermination of ita 
leaderahip, when accompanied by other acta of elimination of a aegment of 
aociety, can alao be deemed genocide. 

2. The arouPB orotected 

95. National, ethnical, racial or religioua groupa are all protected. The 
different groupa relevant to the conflict in the former Yugoalavia - the Serbe, 
the Croata, the Mualima, the Gypaiea and othera - all have atatua aa ethnic 
groupa, and may, at leaat in part, be character ixed by religion, ethnicity and 
nationality. It ia not a condition that the victim group be a minor ity, it 
might aa well be a numerical majority. 

96. If there are aeveral or more than one victim groupa, and each group aa auch 
ia protected, it may be within the apirit and purpoae of the Convention to 
conaider all the victim groupa aa a larger entity. The caae being, for example, 
that there ia evidence that group A wanta to deatroy in whole or in part 
groupa B, C andr D, or rather everyone who doea not belong to the national, 
ethnic, racial or religioua group A. In a aenae, group A haa defined a 
pluraliatic non-A group uaing national, ethnic, racial and religioua criteria 
for the definition. It aeema relevant to analyae the fate of the non-A group 
along aimilar linea aa if the non-A group had been homogenoua. Thia ia 
important if, for example, group B and to a leaaer degree group C have provided 
the non-A group with all ita leadera. Group D, on the other hand, haa a more 
marginal role in the non-A group Community becauae of ita amall numbera or other 
reaaona. Genocide, -an odioua acourge" which the Convention intenda -to 
liberate mankind from* (preamble), would aa a legal concept be a weak or even 
uaeleaa inatrument if the overall circumatancea of mixed groupa were not 



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cov«r«d* Th« cor« of this r^asoning is that in on«-against-«v«ryon«-«ls« cas«« 
th« qu«0tion of a aignificant numbar or a aignificant ••ction of th« group must 
b« answcred with reference to all the target groups as a larg«r whol«. 

97. It is th« «l^m^nt of intent to d«stroy a d«0ignat«d group in whol« or in 
part, which mak«s crim^s of maas murder and er ine« againat humanity qualify aa 
ganocid«. To b« g«nocidtt within the nManing of th« Convention, th« crim«« 
againat a number of individuala must b« direct«d at th«ir collectivity or at 
thMB in th«ir collectiv« charact«r or capacity* Thia can b« d«ducad from tha 
worda ''as auch" atatad in articla II of tha Convantion (a«« para. 92 abova) . In 
moat countri«8, panal codaa do not ragard motivaa, rathar only intant, aa tha 
aubjactiv« or mantal conatituant alemant of a crim«. Notiva and intant may ba 
cloaely linked, but motiva ia not tnentionad in tha Convention. Tha nacaaaary 
elament of intant may ba infarrad from aufficiant facta« In cartain caaaa, 
thara will b# avidenca of actione or omiaaiona of euch a degree that the 
defendant may reaaonably be aeeumed to have been aware of the coneequencee of 
hie or her conduct, which goee to the eatabliahment of intent, but not 
neceeearily motiva. 

4. Acta conatitutino the crime of oenocide 

98. The different acta conatituting the crime of genocide are enumerated in 
article II of the Convention. Such acta are: "killing membera of a national, 
ethnical, racial or religioua group, cauaing aarioua bodily or mental harro to 
membere of the group, deliberately inflicting on the group conditiona of life 
calculated to bring about ita phyaical deatruction in whole or in part, impoaing 
meaauree intended to prevent birtha within the group and forcibly tranaferring 
children of the group to another group". Each of theee categoriee of acta can 
conatitute the crime of genocide, aa could any combination of theee acta. 



S. 



99. Article III of the Convention liata the puniahable acta aa being: 
"genocide, conapiracy to conmit genocide, direct or public incitement to conmit 
genocide, attempt to commit genocide and complicity in genocide". Thie 
enumeration indicatea how far the crime needa to have advanced before it becomes 
puniahable. For example, an attempt will auffice. Secondly, it deacribee what 
kind of involvement in actual genocide may reault in penal reaponeibility under 
the Convention. Thua, criminal reaponeibility extende to thoee involved in 
incitement, conapiracy and attempt, aa well aa individuala actually executing 
the apecific acta prohibited by the Convention. Political maaterminda or 
Propaganda people are no leea raaponaible than the individuala who perform the 
actual carnage. There are, therefore, aeveral legal baaee for criminal 
reeponaibility of individuala who angage in or are part of the varioua aapecta 
of genocide. 



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6. CMlMfeilUY 

100. It 18 •xplicitly stated in the Convention that people who have committed 
genocide shall be puniahed whether they are -conetitutionally responsible 
rulera, public officiala or private individuala" (art. IV). Public officials 
include both civilian and roilitary peraonnel and everyone who holde (or held) a 
public Office - be it legislative, administrative or judicial. To meet the aims 
of the Convention, people in the said categoriee must be treated equally 
irreepective of their de iure or de facto positions as decision-makers. As 
individuals, they are subject to prosecution like any other individual violator. 
They cannot hide behind any shield of imrounity. The legal and moral 
responeibilitiee are the same and the need to prevent genocide no less clear 
because of the poeition of the violator. 

7. The atatute of the Internation al Tribunal for the ProgecMtjpn 
n{ Pt r?Q"» Responaible for Serioua Violations of International 
Humanitar lan Law Committed in the Territory 9f %h9 foiT^eg 
YuqQglavia sin ce 1991 

101. Article 4 of the Statute of the International Tribunal affirms the 
competence of the International Tribunal to prosecute persons committing 
genocide. The definition of genocide in article 4 of the Statute is identical 
to the provisions of the Genocide Convention. 



J. Legal aspects of ra oe and other sexual assaultg 16/ 

• 

102. Rape constitutes a crime under international humanitär ian law as well as 
under the criminal laws of the various republics which constituted the former 
Yugoslavia. It is also part of the Substantive applicable law of the Statute of 
the International Tribunal where it is referred to in several articles. 12/ 

103. ünlike moet codified penal laws in the world, in international humanitarian 
law rape is not precisely defined. But on the basis of the contemporary 
criminal laws of the world's major criminal justice Systems, the Commission 
considers rape to be a crime of violence of a sexual nature against the person. 
Thie characteristic of violence of a sexual nature also applies to other forma 
of sexual aseault against women, men Ifi/ and children, 12/ when these actrvities 
are performeö under coercion or threat of force and include sexual 
mutilation. 2SL/ It should be noted that irreepective of their definition, acta 
of sexual aseault against women, men and children are prohibited by 
international humanitarian law through normative provisions prohibiting violence 
against the physical integrity and dignity of the person. Therefore, rape and 
other sexual assaults are covered in pari materia. 

104. Even though sexual assaults imply the commission of the crime by a given 
perpetrator, persons who do not perform the act but are indirectly involved in 
the commission of this crime, like decision-makers and superiors, are also 
responsible under the Genocide Convention (art. III) and general norme of 
command responeibility (see paras. 55-60). 



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105« Violations of the laws and custoros of war applicable to conflicts of an 
international character are contained in a number of international inatrumente. < 
The Hague Convention (IV) Respecting the Laws and Customs of War on Land deals 
with the question of sexual assaults in article 46: ''Family honour and rights, 
the lives of persons and private property, as well as religious convictions and 
practice, must be respected." The Fourth Geneva Convention explicitly prohibits 
rape in article 27. The Convnission deems that article 147 of the sane 
Convention on "grave breaches** includes rape and other sexual assaults as 
constituting "torture or inhumane treatment** and that they are also prohibited 
because they are among those acta '*wilfully causing great suffering or serious 
in Jury to body or health**. Furthermore, Protocol I to the Geneva Conventions 
contains in article 76 an express prohibition of rape and other sexual assaults. 
In addition, such practices which are based on racial discrimination also 
constitute ** grave breaches" under article 85, paragraph 4 of Protocol I, which 
holds that "inhuman and degrading practices involving outrage upon personal 
dignity, based on racial discrimination" are prohibited. It is also considered 
that article 27 of the Fourth Geneva Convention constitutes part of customary 
international law, thus also establishing a basis for universal Jurisdiction. 
Furthermore, it should be noted with respect to Protocol I, that the provisions 
of article 85, when violated on the basis of racial discrimination, also 
constitute a violation of customary international law. Under all of these 
provisions, a Single act of rape or sexual assault constitutes a war crime. As 
a "grave breach", this type of violation falls under universal Jurisdiction. 
The perpetrator, however, must be a person who is linked to one of the parties 
to the conflict and the victim must be linked to another party to the conflict 
or be a Citizen of a neutral State. It is also held that article 76 of 
Protocol I is applicable to victims who are not protected by other provisions of 
the four Geneva Conventions* 

106. With respect to provisions applicable to conflicts of a non-international 
character, common article 3 to the four Geneva Conventions applies, as does 
article 4, paragraph 2 of Protocol II. Both of these provisions include a 
Prohibition against rape and other sexual assaults in so far as they constitute 
wilful injury to the person. A Single act is enough to constitute such a 
violation when the perpetrator is linked to one of the parties to the conflict 
and the victim is linked to another party to the conflict or is a Citizen of a 
neutral State. Under Protocol II, such prohibited acta constitute a violation 
when the conflict takes place "in the territory of a High Contracting Party 
between ite armed forces and dissident forces or other organized groups which, 
under responsible command, exercise such control over a part of its territory as 
to enable the» to carry out sustained and concerted military Operations and to 
implement this Protocol" (art. 1, para. 1). 



107. Two other sources of international humanitär ian law apply to the 
Prohibition of sexual assault and rape irrespective of the natura and 
characterization of the conflict. They are the conventional and customary law 
of "crimes against humanity" and the Genocide Convention. With respect to 
crimes against humanity, sexual assaults and rape fall within the meaning of 
other inhumane acta. However, the prohibited conduct must be part of an overall 
policy of persecution based on ethnic or religious grounds against a civilian 
Population. Under the Genocide Convention, sexual assault and rape are included 
within the meaning of article II of the Convention, provided that the prohibited 



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conduct is cocmitted as part of an "intent to destroy, in whol« or in part, a 
national, ethnical, racial or religious group". Und#r both crimea against 
humanity and th« G#nocide Convention, such prohibited acta ar# subject to 
universal Jurisdiction. It is also well-established that both of these sources 
of international humanitarian law are considered part of jus coaens and are, 
therefore, binding ander customary international law* 

108. The parties to this conflict are bound by the four Geneva Conventions of 
12 August 1949 and Additional Protocols I and II, both under State succession 
and by the parties' specific accession thereto. The parties are also bound by 
the Genocide Convention under State succession in so far as that Convention has 
been ratified by the former Federal Republic of Yugoslavia. The parties are 
bound by that Convention under ius cogens and customary international law. The 
parties are also bound under ius coaens and customary international law by the 
Obligations arising under crimes against humanity, as developed in conventional 
and customary international law. 

109. The Comroission concludes that there is no doubt about the prohibition of 
rape and sexual assault in the Geneva Conventions and other applicable sources 
of international humanitarian law. Purthermore, the Commission finds that the 
relevant provisions of the Statute of the International Tribunal adequately and 
correctly State the applicable law to this criaü^ 



III. GENERAL STUDIES 

A. The militarv structure of the warri na factiona 
and the atratecies and tactics thev emolov 

110. The military conflicts in the former Yugoslavia must be examined on the 
basis of their evolution, which involved different parties at various times, 
operating in separate, though frequently interrelated, theatres of Operation. 

111. The first phase involved the conflict in Slovenia. The conflict began when 
that Republic declared its independence from the former Yugoslavia on 

25 June 1991. That conflict involved the Yugoslav People's Army (JNA), Slovenia 
Territorial Defence Forces - Slovenian troops who left JNA to join the newly 
created Slovenian Army - and local Slovenian Police. This phase lasted for only 
a few weeks, in June and July 1991. 

112. The second phase of the conflict, involving Croatia, started before that 
Republic officially declared its independence on 25 July 1991. On one aide, 
that conflict involved JNA, Serb militia in Krajina and in eastern and western 
Slavonia, special forces from Serbia (with the participation of Serb expatriates 
and mercenaries) , local special forces, and Serb police and armed civilians from 
the same areas. On the other aide, the newly formed Croatian Army consisted of 
Croatian troops who left JNA, the Croatian National Guard, local militia; 
special forces consisting of expatriate Croats and mercenaries, and local 
Croatian police and armed civilians. After November 1991, JNA formally withdrew 
from Croatia, but continued to support the newly formed, self-proclaimed -Serb 
Republic of Krajina- army. Meanwhile, the newly established Republic of Croatia 
had formed its army, the Croatian Army, which, along with Croatian special 

/... 



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force. and oth.r.. continued th« armed conflict in what becam« th« Unit«d 
Nation« prot«ct«d area« (UNPAa) in Croatia. 

113 Th. third pha.« of th. conflict b.gan in Bo.nia and Harzegovina following 
Jirdlctaratron of ind.p«nd.nc. on 6 March 1992. It .imultanaou.ly involv.d 
Ü^htlni bitie^n Croatian and Bo.nian Gov.rn«.nt forc, Bo.nian Govrnm.nt and 
si?b!in fo^c«! and Croatian and Serbian forc... Th. Croatian Defence Council 
forcil in th. Bo-nian and H.rx.govina ar. .upport.d by th. Croat.an Arn,y, local 
Croattaip^Uc., volunt..r civilian. and -sp.cial forc." U»'« t^« "l^^^^";: "^"^ 
of Jh. cr^tian Party of Right. (HOS) (naffl.d affr th. form.r üsta.hi. of th. 
sLonS Sortd Jar, who al.o ?o«ght again.t th. s.rb. in th. Krajina «" ' O^»^« 
croatian arn..d civilian forc. op.rat. .ss.ntially in local ar.as. At first, 
thnitnian Gov.rnm.nt and JNA oppo«.d each oth.r. This la.t.d from April to 
Jun. 1992, during which tun. th. JNA troop. from S«rbia and Montenegro 
"officially- withdrew from Bo.nia and Herxegovina, l.aving behind JNA Serbian 
troop. from Bo.nia and th.ir equipm.nt. Th.y w.r. .upplement.d by "specxal 
force." from Serbia which consisted of expatriat. volunteer. and mercenariea, 
Bosnian-Serb militia and police, and Serb volunt..r.. 

114 At th. .arly stag.« of th. conflict, mo.t of th. combatants, including 
thos. in th. r.gular army, did not w.ar distinctiv. uniform«, ««^l«™« °^ 
insignias of rank. A. a r.ault, officer« fr..ly mov.d from army to militia and 
from on. unit to anoth.r. To furth.r complicata matt.r«, at the early «tag.« of 
the conflict between: (a) Croatia and th. F.d.ral R.public of Yugo.lavia and 
other Serb forces within Croatia, and (b) b.tw..n Bo.nia and Herzegovina at.d the 
Federal Republic of Yugoalavia and oth.r forc. within Bosnia and Herzegovina 
(in May 1992, JNA force. from th. Federal R.public of Yugoalavia officially 
withdraw from Bo.nia), th. "ord.r of battl." of almo.t all army and militia 
unit« was not cl.arly .«tablished. Th. chain of command wa« «ignif icantly 
blurrad, even to in.ider«. Consequently, the Organization« • "command and 
control" structure. w.r. «.riou.ly eroded, which reeulted in much confu.ion. 
The confusion wa« roore pronouncd in Bo.nia aroong S.rb combatant«, but s.em« to 
have be.n purpo.ely kept that way for e««entially political reaaon«. 

115 When each of th. thr.. R.public8 of Slov.nia, Croatia and Bo.nia and 
Harzegovina respectively declared their ind.p.nd.nc, ü/ th.y did not hav. a 
separate army. Previou.ly, th. Yugo.lavian Paopl.'. Army (JNA), al.o ref.rr.d 
to a. th. Yugo.lavian National Army, wa« a «ingl. unitary army for all m.mb.r8 
of th. form.r Yugo.lavla. Th. armi.. of th. "warring faction." con.i.ted mainly 
of military peraonnel and equipment of the former JNA. 

116 Each of theae republic« had local territorial defence force« (TDF) 21/ 
which were part of the total defence syatem« of th. Federal Republic of 
Yugoalavia. The republic. al.o had local polic forc. con.iating of per«onn.l 
from th.ir re.pectiv. r.public. 

117 Upon th. «ucc.iv. declaration« of indep.nd.nc. of th.«. thre. republic«, 
some of the military p.r.onn.1 of JNA (who had b..n located in each of theae 
republic«) left JNA and reconatituted th«n«.lv.. a. part of th. n.wly cr.atad 
national armi.« of slov.nia, Croatia and Bo.nia and H.rz.govina. 21/ JNA 
"officially" withdraw from Croatia in November 1991 and from the Bo.nia and 
Herzegovina between May and June 1992. Throughout thi. p.riod, JNA wa. 



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reorganised ••v«ral times by th« F#d#ral Republic of Yugoslavia. Am of 
May 1992, JNA - now callad tha Yugoalav Army - consiatad asaantially of troopa 
from tha Rapublica of Sarbia and Montenegro. Theae two Republica form the 
aucceaaor federal union to the former Yugoalavia. 

118. In addition to the regulär armiea mentioned above, there are three 
additional armiea: the Boanian-Serb Army, which operatea in Boania and 
Herzegovina; the Serbien Army of Croatia, which operatea in Croatia; and the 
Croatian Defence Council, which operatea primär ily outaide the border of the 
Republic of Croatia, and moatly in Boania and Herzegovina. The firat two were 
at one time and may atill be armed and aupported by JNA (now the Yugoalav Army) 
and the third may have been armed and aupported by the Croatian Army. 

119. The territorial defence forcea (TDFa) are known aa militia). In the caae 
of Croatia, TDFa were )cno%m aa the Croatian National Guard. The TDFa have a 
aeparate comroand atructure from the regulär army. Nevertheleaa, they join in 
the armed conflict, frequently operating with the regulär army and under regulär 
army officera' command. They alao operate independently in certain geographic 

, uaually where moat of the peraonnel in theae unita came from. 



120. In addition, two other typea of paramilitary groupa and formations are alao 
engaged in military operationa. They conaiat of: (a) what are called ''special 
forcea*", and (b) local police forcea augmented by local armed civTlians. All 
the warring f actione make uae of such forcea among their combatants, but the 
linee of authority and the atructure of command and control are confuaing, even 
to the combatanta. 



121. There are 45 reported apecial forcea, which uaually operate under the 
command of a named individual and apparently with aubatantial autonomy, except 
when they are integrated into the regulär army'a plan of action. 24 / The 
special forcea are aupplied and often trained by the reapective Governmenta that 
they aerve. Many apecial forcea answer only to aenior political officiala in 
the reapective Governmenta. Such a relationahip ia frequently baaed on 
political allegiance and ia not alwaya publicly known. However, in time, 
Information about the political sponaorahip and aupport of theae groupa will 
become available. Aa theae unita uaually operate independently and outaide the 
apparent chain of command, their order of bettle ia not known. Notwithatanding 
the atrong linke between theee unita and the reapective armiea, the regulär army 
failed to reatrain them from the commiaaion of grave breachea of the Geneva 
Conventione and other violationa of international humanitarian law. Among the 
moat notorioue of the apecial forcea are Arkan'a **Tigera'* 25 / and Seielj'a 
**White Eaglee" (alao referred to aa "Chetnika") . 2&/ Laatly, many of theae 
unita operate throughout the territory of the former Yugoalavia. Thua, the 
Serbien unita operate in Boania and Herzegovina and Croatia, and the Croatian 
unita in Boania and Herzegovina. Theae special forcea have committed some of 
the worat violationa of international humanitarian law (see paraa. 129-150, 
236-237, and 216-231 below) • 

122. Some towne and villagea formed paramilitary unita, which are not to be 
confuaed with the apecial forcea mentioned above* Theae local forcea operate in 
the areae of their towna and villagea. Occaaionally, they alao lend support to 
similar groupa and other combatants in the same ooitina (county) and 



«r 



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neiahbouring arMS. Their cofwnand and control ia local, and th« chain of 
comroand difficult to aatabliah, though charact.riatically thM« groupa, liJco the 
special forca«, have an identifiabla laader. Fraquantly, the unit or group is 
called by the leader'a name. Otherwiae. the unit or group usea a politically 
sianificant name or the name of their town, village or area. The leaderahip is 
local. mostly consisting of political figures. These units, particularly among 
Serbe in Bosnia and Herzegovina and Croats in Krajina, have, like the special 
forces, committed many violations of international humanitarian law (see 
paras. 129-150). The police, augmented by "volunteer- armed civilians, also 
participate in military activities. These forces operate within a given 
rounicipality. They are nominally under the overall control of the Ministry of 
Interior. Purthermore, the respective ministries of interior also have national 
and regional police units, which usually operate outside the boundaries of local 
municipalitiee. The relationship between national, regional and local police is 
not always clear and varies in each country, and soroetimes within the regions of 
each country- During the early stages of the conflicts in Croatia and in Bosnia 
and Herxegovina, the police, augmented by -volunteer" armed civilians, operated 
without apparent coiwnand and control from the army. Their leadership was local 
and included many political figures. These forces acted with almost complete 
autonomy in their respective areas. They also share responsibility with the 
special forces described above. 

123. The Situation consists of a multiplicity of combatant forces (for example, 
regulär armies, militias, special forces, police and armed civilians) operating 
within different structures or outside any structure. These forces sometimes 
operate under no command and control. They may be without uniforme, embleros or 
insignias. Frequently, these forces merge or combine in connection with certain 
Operations. Probably the only factor common to all of these forces is their 
receipt of military equipment, ammunition and supplies from their respective 
armies and other governmental sources. 

124. The outcome of such a structure and the strategies and tactics employed 
help to blur the chain of command and conceal responsibility. This concealment 
may well be intended by some of the parties to provide a shield of plausible 
deniability. 

125. All parties to the conflict have specifically adhered to the Geneva 
Convention« of 12 August 1949 and Additional Protocols I and II thereto. 27/ 
Furthermor«, the Federal Republic of Yugoslavia is a signatory to these 
Conventione, and all of the parties to the conflict concede that they are also 
bound by these obligations under the international law of State succession. 

126. The Federal Criminal Code of the former Yugoslavia embodied the 
international rulee of armed conflict. JNA military personnel were instructed 
accordingly. Thus, grave breaches of the Geneva Conventions and other 
violations of international humanitarian law are part of the applicable national 
laws of all warring factions* 

127. All of the combatant forces, in significantly different degrees, have 
committed grave breaches of the Geneva Conventions. 



/... 



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128. Th« grav« brMch«« of th« G«neva Convantiona and othar violationa of 
international humanitarian law occurring in thia conflict are, in part, the 
product of the military structure that reeulta in a lack of affective cocnmand 
and control. The violationa are alao the reault of the strategies and tactics 
employed by the warring f actione. 



B. " gthnic cleansina " 21/ 

129. In ita firat Interim report (S/25274), the Comroiaaion stated: 

-55. The expreaaion »ethnic cleanaing* ia relatively new. Considered in 
the context of the conflicta in the fortner Yugoslavia, 'ethnic cleansing' 
meana rendering an area ethnically homogenoua by using force or 
intimidation to remove persona of given groupa from the area. 'Ethnic 
cleanaing' ia contrary to international law. 

-56. Baaed on the many report a deacribing the policy and practicea 
conducted in the former Yugoalavia, »ethnic cleanaing* haa been carried out 
by meana of murder, torture, arbitrary arreat and detention, extra-judicial 
executiona, rape and aexual aaaaulta, confinement of civilian population in 
ghetto areaa, forcible removal, diaplacement and deportation of civilian 
population, deliberate military attacka or threata of attacka on civiliana 
and civilian areaa, and wanton deatruction of property. Thoae practicea 
conatitute crimea againat humanity and can be aaaimilated to specific war 
crimea. Purthermore, auch acta could also fall within the meaning of the 
Genocide Convention. 

-57. The Comroiaaion ia mindful of theae conaiderationa in the examination 
of reported al leget iona. " 

130. üpon examination of reported Information, apecific atudiea and 
inveatigationa, the Commiaaion confirma ita earlier view that "ethnic cleanaing- 
ia a purpoaeful policy deaigned by one ethnic or religioua group to remove by 
violent and terror-inapiring meana the civilian population of another ethnic or 
religioua group from certain geographic areaa. To a large extent, it ia carried 
out in the name of miaguided nationaliam, hiatoric grievancea and a powerful 
driving aenae of revenge. Thia purpoae appeara to be the occupation of 
territory to the excluaion of the purged group or groupa. Thia policy and the 
practicea of warring factiona are deacribed aeparately in the following 
paragrapha • 

131. With reapect to the practicea by Serbe in Boania and Herzegovina and 
Croatia, "ethnic cleanaing" ia commonly uaed aa a term to deacribe a policy 
conducted in furtherance of political doctrinea relating to "Greater Serbia". 
The policy ia put into practica by Serbe in Boania and Herzegovina and Croatia 
and their aupportera in the Federal Republic of Yugoalavia. The political 
doctrine conaiata of a coroplex mixture of hiatorical claima, grievancea and 
feara and nationaliatic aapirationa and expectationa, aa well aa religioua and 
paychological elementa. 211 The doctrine ia eaaentially baaed on ethnic and 
religioua excluaivity and the dominance of Serbe over other groupa in certain 
hiatorically claimed areaa. Theae viewa contraat with ethnic and religioua 



•I' 



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olur*li«m. Thl» doctrin« br««d« intoUr«nc« and «uspicion of oth.r ethnic and 
r«ligiou« group« and i« conduciv« to viol«nc« wh«n it ia politically 
manipulat«d, aa ha« b««n th« ca««. 

132 It «hould b« empha«ir«d that thi« policy and th« mannar in which it i« 
carriad out is eupportad only by «om« S«rb«. In addition, th« Coitimi»«ion 
•mphaaiz«« that r««pon«ibility for criminal conduct muat b« d«tertnin«d on an 
individual baai«. 23.1 

133. Th« mannar in which th« policy of "«thnic cl«an«ing- i« carried out by 
S«rb« in Boania i« conaiatent throughout a cartain gaographic area repreaanted 
bv an arc ranging from northarn Boania and covaring araaa in aaatarn and w««t«rn 
Boania adjoining th« S«rb Krajina ar«a in Croatia. H/ Th« practica of "athno-C 
claanaing- ia carriad out in «tratagic araaa linking Sarbia prop«r with 
S«rb-inhabit«d araaa in Boania and Croatia. Thia atratagic factor la 
aignificantly r«l«vant to undaratanding why th« policy haa b««n carried out in 
cartain araaa and not in othara. 22.1 

134 Th« co«rciv« meana uaed to remova the civilian population from the 
abov«-m«ntion«d atratagic areaa includa: maaa murdar, torture, rape and other 
forma of aaxual aaaault; aevera phyaical injury to civiliana; miatraatmant of 
civilian priaonar« and priaonera of war; ua« of civiliana aa human ahialda; 
daatruction of paraonal, public and cultural proparty; looting, theft and 
robb«ry of p«raonal proparty; forcad axpropriation of raal proparty; forcaful 
diaplacamant of civilian population; and attack« on hoapital«, medical paraonnal 
and locationa raarkad with th« Red Croaa/Red Creacent emblem. 

135 Many of thes« acta of violence ar« carriad out with extrem« brutality and 
eaviaary in a manner daaigned to inatil terror in the civilian population, in 
Order to cauae thera to flee and never to return. 21/ Thia ia evidenced by th« 
large number of purpoaeful and indiacriminata killinga, rape and aaxual 
aaaaulta, and other forma of torture committed againat civiliana and priaonera 
of war, both inaide and outaide detention facilitiea. Theae acta are alao 
highly publicizod by the perpetratora in order to achieve a terror-inapiring 
effect on othera and cauae them to flee. 

136. Other noteworthy practicea are wideapread daatruction of villagaa by 
avataroatically burning them to the ground and blowing up all the houaee and 
atructur«« in a givan area. Thia includea cultural and religiou« monumenta and 
ayrabol«. Th« purpoa« of thi« daatruction ia to eradicate cultural, aocial and 
religiou« tracea that identify the ethnic and religioua groupa. In the caaea 
where th« practica« deacribed abova do not occur, theae groupa are forced to 
laave under dureaa by raaaon of a well-founded fear for their peraonal aecurity. 



137 Another recurring practica La to force civilian inhabitanta to aign over 
their property aa a condition of their departure or removal to other areaa. 
Mayor« and public officiala, including the police, are frequently involved in 
thia practica. M/ 

138 Two additional factora alao indicate the exiatence of a policy of -ethnic 
cleanaing": (a) the wholeaale and surreptitioua departure of the Serbian 
population living in cartain areaa, which are to be "ethnically cleanaed", 



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b«for« th« acta dascribed above take place; 2^/ and (b) the practicas reported 
occur undar tha auparviaion of a -criaia cororoittea" r Kriani Stab > . compriaed of 
local political leadera^ police and othera, which made auch daciaiona with the 
direct or indirect involvement and support of the Boanian-Serb Army. 36 / 

139. Special forcea (aee paraa. 121-122) frequently carry out '*ethnic 
cleanaing**« Theae forcea clearly aeem to be aupported, equipped and supplied by 
the Governmenta they aerve and are allowed to operate without control by the 
authoritiea in Charge* Two particular groupa of apecial forcea that have 
committed the largeat number of reported violationa are Arkan'a Tigera and 
§eielj*8 White Eaglea (aee para. 121). 



140. The atudy of the Prijedor diatrict described in paragrapha 151 to 182 
below, reveala the extent of the policy of "ethnic cleanaing'* and the manner in 
which it waa ayatematically carried out together with the local and regional 
authoritiea. 37 / The saune patter .is and practicea deacribed in the study on the 
diatrict of Prijedor repeatedly occurred in many opatinaa ^ such as Banja-Luka^ 
Bröko, Foöa and Zvornik, about which the Commiaaion received aignificant 
Information aupporting the above concluaiona. 38 / 

141. Three additional obaervationa are noteworthy: 

(a) JNA and the Army of the so-called "Boanian Serb Republic'* 22/ have 
been involved in carrying out and facilitating the policy and practices of 
'*ethnic cleanaing** in certain p^rts of the territory; 

(b) The practicea implementing the policy, particularly in certain parts 
of Bosnia, have been carried out to a large extent by the most marginal social 
elements of that society; 

(c) The leadera of Bosnian Serbs influenced, encouraged, facilitated and 
condoned theae social elements to carry out the crimea deacribed above. The 
combination of theae factors, stimulated by misguided nationalism, fanned by 
hiatorical grievancea and fuelled by reciprocal violence and revenge, haa led to 
tragic consequencea. 

142. There is sufficient evidence to conclude that the practicea of "ethnic 
cleanaing** were not coincidental, sporadic or carried out by disorganized groupa 
or bands of civiliana who could not be controlled by the Boanian-Serb 
leadership. Indeed, the patterna of conduct, the manner in which theae acta 
were carried out, the length of time over which they took place and the areaa in 
which they occurred combine to reveal a purpoae, ayatematicity and aome planning 
and coordination from higher authoritiea. Furthermore, theae practicea are 
carried out by peraona from all segments of the Serbian population in the areas 
deacribed: members of the army, militiaa, special forces, the police and 
civiliana. Laatly, the Commiaaion notea that theae unlawful acta are often 
heralded by the perpetratora as positive, patriotic accomplishmenta. 

143. The above-mentioned factors and others indicate the existence of an element 
of auperior direction. At the very least, they indicate a purpoaeful failure by 
superiora to prevent and punish the perpetratora once their crimea become known 
to the responsible comroandera. 40 / 



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144. Lastly, it should bm not«d that there was initially a link between local 
activitiea and activitiaa of Serbe from the Federal Republic of Yugoelavia in 
Bosnia and Herzegovina and in Krajina, Croatia, and aleo involvement by JNA. 
Thie linkage exieted until 2 January 1992, the date of the ceaee-fire between 
Serbe in Krajina and JNA and the Federal Republic of Yugoelavia, and is evident 
in tnany waye. In fact, theee linke are not denied by the Federal Republic of 
Yugoelavia* Thie ie eupported by the uee of JNA in Croatia and Bosnia and 
Herzegovina before the converaion of some of theee forcee into the army of the 
eo-called -Serbien Republic of Boenia". H/ Furthermore, there is a streng 
political, diplomatic and military influence on the part of the Federal Republic 
of Yugoelavia over a wide ränge of decisions of the -Boenian Serb Republic** and 
the "Serb Republic of Krajina". 

145. Similar policies and practices of "ethnic cleaneing" have occurred in the 
Serb-Krajina area and in eastern and western Slavonia in Croatia by Serbe 
against Croats and also by Croats against Serbs, ae discussed below. 42/ The 
patterns and practicee of "ethnic cleaneing** deecribed above are the saune in 
separate theatree of Operation. This further substantiatee the existence of a 
Serbien policy. One significant instance where thie policy was carried out in 
Croatia is the deetruction of the city of Vukovar in 1991. 41/ 

146. Manifeetatione of '*ethnic cleaneing" have occurred throughout the territory 
of the former Yugoelavia, and similar practices have been committed at certain 
timee and placee by Croatian warring factions, ae discussed in paragraph 147. 

147. "Ethnic cleaneing" practices committed by Bosnien Croats with support from 
the Republic of Croatia againat Boenian Muelime in Herzegovina are politically 
related. 44/ Furthermore, Croatian forces aleo engage in theee practicee 
againet Serbe in the Krajina area and in eaatern and weetern Slavonia. The 
violence committed against Serbe in these areaa appears, however, to have the 
more defined political aim of removing them from the areas. Croats have used 
the Croatian Defence Council, police, armed civiliane and local epecial forcee 
to carry out theee acte in the areae mentioned above. They have committed grave 
breachee of the Geneva Conventione, including the deetruction of Serbien 
villagee and churchee, killing of innocent civiliane, torture and forceful 
removal of the civilian population. In the Krajina area and in eastern and 
weetern Slavonia, the cycle of violence between Serbe and Croats started in the 
early part of 1991, before the war formally began. The violence continued well 
beyond the end of that war. 45 / Similar practicee %^re also, on occaeion, 
carried out by Croate againet Muelime in Boenia and Herzegovina. 46 / But, the 
Croatian authoritiee have publicly deplored these practicee and sought to stop 
them, thereby indicating that it is not part of the Government 's policy. 

148. Bosnien Government forcee have also committed the same type of grave 
breachee of the Geneva Conventions against Serbs and Croats, but not as part of 
a policy of "ethnic cleeneing". The number of theee violations, as reported, ie 
signif icantly leee than the reported violatione allegedly committed by the other 
warring f actione. 

149. The Commieeion ie unable to determine the amount of härm and the exact 
number of violatione committed by each of the warring f actione. Nevertheleee, 



. I 



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it 18 claar that there is no factual baais for arguing that there is 
•quival^nc«" b«tw««n tha warring factions. 



a "moral 



150. It should ba notad in unaquivocal tarma, howavar, that rapriaala, 
retribution and ravenga do not conatituta a valid legal juatif Ication or axcuaa 
for coRvnitting grava breachaa of tha Ganava Convantiona and other vlolatlona of 
international humanitarian law (aaa paraa. 63-66). Tha Convniaaion emphaaizaa 
that in addition to tha individual criminal raaponaibility of perpetratora who 
coininit violationa, military and political laadara who participata in the making, 
axacution and carrying out of thia policy ara alao auacaptibla to chargea of 
ganocida and crimaa againat humanity, in addition to grava breachaa of the 
Ganeva Convantiona and other vlolatlona of international humanitarian law. 



IV. SUBSTANTIVE FINDINGS 

A. The study of Opitina Priiedor, a diatrict in north-western 

poanj,^: alleoed aenocide and maaaive violations of the 

elementarv dictatea of humanitv £7/ 

1. General deacription 

151. Qpjtina Prijedor ia a diatrict located in north-weatern Boania in an 
which ia part of the Boanian Krajina. It ia located in between the town of 
Sanaki Moat (to the south), the Boanian-Croatian border towna of Bosanski Novi 
(to the weat) and Boaanaka Dubica (to the north), and the regional capital of 
Banja Luka (to the eaat). Except for the area of Sanaki Moat, the other 
neighbouring diatrict» had Serbian majority populationa before the armed 
conflicta atarted in Boania and Herzegovina. 

152. According to the 1991 cenaua, OpStina Prijedor had a total population of 
112,470 people, of whom 44 per cent were Mualima, 42.5 percent Serbe, 

5.6 per cent Croata, 5.7 per cent "Yugoalava** and 2.2 per cent othera 
(Ukrainiana, Ruaaiana and Italiana). In early April 1992, the total population 
may have been approximately 120,000 people, augmented, inter alia . by an Inf lux 
of people who had fled the deatruction of their villagea in areaa to the weat of 
Opfttina Prijedor. 

153. Comparing the 1991 cenaua figurea with the reaulta of a population count of 
June 1993, aa publiahed in Serbian-controlled media, givea the following overall 
picture: 





47 745 


1993 


RfidüC£i2n 


N^w 


arrivals 


Serbe 


53 637 


5 892 


Mualima 


49 454 


6 124 


43 330 




— 


Croata 


6 300 


3 169 


3 131 




— 


Othera 


8 971 


2 621 


6 350 




-- 



Thua, the total number of killed and deported peraona aa of June 1993 ia 52,811 
(including limited numbera of refugeea and people miaaing). Since then, the 



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numb^r of non-Serbs in the district hav« continued to decrease. The extreme 
persecution to which non-Serbs are subjected and their almost total lack of 
protection in the district ie illustrated by the fact that ICRC and UNHCR asked 
permission from the Serbe, in March 1994, to evacuate all remaining non-Serbs 
froro OoStina Prijedor« 

154. The following factual findinge of the Coimniseion are based on 300 to 400 
Statements by surviving victims of the events in Oofttina Prijedor currently 
living in different countries, local Serbian media reports of the events and 
research into the context of the events. 



2. Serbe take power on 30 Aoril 1992 



155. According to Kozarski Viesnik . 
QpStina Prijedor, of 9 April 1993: 



a Serbian-controlled newspaper in 



'*The man [Simo DrljaSa], who the Serbian Democratic Party of the 
Op§tina Prijedor put in Charge of forming the Serbian police after half a 
year of illegal work, had done his job so well that in 13 police stations 
1,775 well-armed persons were waiting to undertake any difficult duty in 
the time which was Coming. In the night between 29 and 30 April 1992, he 
directed the takeover of power [by the Serbe], which was successfully 
achieved in only 30 minutes, without any shots fired« The assembly of the 
Srpske Opitine Priiedor ^ at the end of March last year (1992], appointed 
him Chief of the public security Station [i.e., in Charge of the secret 
police]. He was in Charge of this job during the most demanding period and 
remained in the position until January 1993. These days he has been 
appointed Vice-Minister of Internal Affairs of the Serbian Republic. He 
will commence his new function in Bijelina on Monday." 

156. More than six months prior to the power change in 1992, the Serbe started 
to build up their own administration parallel to the legitimate authorities in 
Opjtina Prijedor - what they called the Serbian Qpitina Prijedor. This 
included, inter alia ^ a pure Serbian police force with secret service functions. 
The legitimate authorities in QpStina Prijedor had been lawfully elected, and 
the Prijedor Assembly reflected the ethnic composition of the district. 

157. In early 1992, a very small Serbian paramilitary group took control of the 
television transmitter on the Kozara mountain in OpStina Prijedor, and as a 
consequence the population in the district could not receive television 
programnes from Sarajevo or Zagreb any longer, only from Beigrade and later 
Banja Luka* The television progreunmes from Beigrade insinuated that non-Serbs 
wanted war and threatened the Serbe. 



158. Prior to the power change on 30 April 1992, Serbe secret ly armed other 
Serbe in the dietrict. Many soldiere from the Yugoelav People's Army withdrew 
from Croatia to north-weetern Bosnia in early 1992. Instead of demobilizing 
thoee who returned to QpStina Prijedor, the legitimate authoritiee were 
preesured to accept redeploying them to control all inroade to and exits from 
the district together with police and the territorial defence forces (TDFs). 
The preeeure applied was an Ultimatum. The legitimate authoritiee were invited 

• 

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for a guid#d Sightseeing tour of two Croatian villagee juet north of Boeanska 
Gradiftka which had been deetroyed and left uninhabited. The meesage wae that if 
the ultimatiam wae not met, the fate of Prijedor would be the eame ae that of 
theee villagee. The Ultimatum was accepted. 



3. Immediate conseouencea of the Serbs takina power 

159* An immediate consequence of the Serbian takeover was severed communicationi 
between Qpitina Prijedor and the outside world. It became more difficult to 
travel and the telephone System was no longer fully operational. A curfew was 
introduced in Prijedor town - the main to%m in the district - and travel permits 
were required in many areas even to move among local villagee. Bus Services 
were closed dovm. 

160. In the wake of the power change, most non-Serbs were dismissed from their 
Jobs, be it as police, public officials or even manual workers. In all key 
functions such as police and local adroinistration, the empty posts were taken 
over by Serbe. 

161. Even before 30 April 1992, Serbs had started to visit the non-Serbs who 
were licensed to hold weapons and demand that they give their weapons up. This 
process was intensified after the takeover and combined with a campaign in which 
non-Serbian police and TDFs were instructed to hand over their weapons and 
non-Serbian houses and villagee were searched for arme. 

162. Also, the local media, Radio Priiedor and Kozarski Viesnik . joined in the 
anti-non-Serb Propaganda* The media slandered former non-Serbian leaders by 
criticizing everything from their alleged lack of efficiency to their private 
lives. In addition, the media claimed that dangerous Muslim extremists were in 
the area, preparing genocide against the Serbs. 



4. The major Serbian militarv Operations in the district 

163. Pollowing an incident in which less than a handful of Serbian soldiers were 
shot dead under unclear circumstances, the village of Hambarine was given an 
Ultimatum to hand over a policeman who lived where the shooting had occurred. 

As it was not met, Hambarine was subjected to several hours of artillery 
bombardment on 23 May 1992. The Shells were fired from the aerodrome Urije just 
outside Prijedor town* When the bombardment stopped, the village was stormed by 
infantry, including paramilitary units, which sought out the inhabitants in 
every home. Hambarine had a population of 2,499 in 1991. 

164. On 24 May 1992, a large-scale attack on the entire Kozarac area east of 
Prijedor town, under the Kozara Mountain, was carried out with intensive 
bombardment from all directions by artillery, tanke and small firearms. The 
bombardment laated for more than 24 hours, before the infantry and paramilitary 
groupe stormed Kozarac and nearby villagee and searched for people in every 
building* The affected area had a total population of almost 27,000 people. 



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165. On 30 May 1992, a group of leaa than 150 anii«d non-S«rba had mad^ their way 
to th# old town in Prijador to ragain control ovar tha town. Thay wara dafaatad. 
and tha old town waa razad. In tha cantral parta of Prijador town, all 
non-Sarba wara forcad to laava thair houaaa aa Sarbian roilitary, paramilitary, 
polica and civiliana advancad straat by atraat with tanka and lightar arina. The 
non-Sarba had been inatructed over tha radio to hang a white piece of cloth on 
their homea to aignal aurrander. 

166. Start ing on 20 July 1992, a larga area of pradominantly non-Serbian 
villagaa on tha laft bank of tha River Sava (tha larger Hambarina/Ljubija area) 
waa attacked in a aimilar manner to the Kozarac area. Howaver, it waa 
pradominantly infantry and paramilitary groupa that carried out tha deatruction. 
At the time of the attack, tha araaa had a population of cloae to 20,000 people, 
including people who had come for shelter after their villagea weat of 
Qpfttina Prijador had been deatroyad. 

167. Today tha former homea of almoat 47,000 people in the Kozarac and 
Hambarina/Ljubija areaa are empty and deatroyed. Some were hit by artillery 
shella, while othera were set ablaze in the initial attack. All the homea were 
later pillaged and a large number blown up, one at a time from inaide, 
deatroying eapecially the inaide and the roofa. Moat of the artillery uaed 
during theae attacka had been moved into poaition aome time before the Serbe 
took power on 30 April 1992. 



5. Concentr< 



ind dei 



168. Aa non-Serba were attacked in the villagee and Prijador tovm, hundreda, 
poaaibly thouaanda, were killed in their home areaa, frequently after 
maltreatment. The aurvivora that temporarily managed to flee or hide were 
divided. Femalea, boya under tha age of aixtaen (aometimea the age limit may 
have been lower) and elderly men (older than 60 or 65) made up one group, whila 
the other men compriaed the second group. 

169. The aecond group - the men * were taken to haatily opened concentration 
caunpa in a ceramic tile factory, Keraterm, next to Prijedor tovm and on the 
premiaea of the iron ore mine and proceaaing plant at Omaraka. Maaaacrea, 
torture and appalling living conditiona quickly depleted the number of 
detaineea. 

170. In an interview printed in Kozaraki Vieanik on 9 April 1993, Simo DrljaSa, 
preaent Deputy Miniater of Interior of the ""Serb Republic of Boania", atated 
that: 



"In the collection centrea *Omaraka', 'Keraterm' and 'Trnopolja' more 
than 6,000 informative talka wäre held. Of thia number 1,503 Mualima and 
Croata were aent to the camp *Manja6a' on the baaia of aolid documentation 
of active participation in the fighting againat the Army of Republika 
Srpaka ('Serb Republic of Boania'], and alao participation in genocide 
againat the Serbien people. Inatead of letting them get their deaerved 
puniahment, the power ful men of the world expreaaing diadain forcad ua to 
releaae them all from ManjaCa." 



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As th« "informativ« talks** or interrogations baaically took plac« in the Omarska 
and K#rat«nD camp«, it can b« concludsd that mor« than 6,000 adult males were 
taken to th^s« conc«ntration camps in th« Short p«riod thsy sxistsd (from the 
end o£ May to the beginning of August 1992). Sincs only 1,503 were moved on to 
Manjaöa camp according to Mr. Orljaöa, a limitsd number tranaferred to th« 
Trnopolje camp and almost nons rsleassd, it may bs assumsd that ths death toll 
was extremely high« Ths concsntration camp prsmisss wsrs sometimes so packed 
with paople that no mors inmates could bs cramm^d in. On at least one occasion 
this allegadly r«sultsd in an entire busload of newly captured people being 
arbitrarily executed an mass« . Som« 37 women wars datained in Omarska, while no 
women were kept over time in Keraterm. 

171. The women were normally taken to the Trnopolje camp. In Trnopolje, the 



regime was far better than in Omarska and Keraterm. 

and malnutrition was a problem for all the inmates. 

kinds of torture, and even killings, were not rare. 

women were released after a few days, as there was a lack of Space in the 

Trnopolje camp as well. 



None the less, harassment 
Rapes, beatings and other 
Some of these detained 



172. On their way to the concentration camps, some captives were detained for 
shorter periods at improvised detention facilities, such as sports halls in 
schools and Stadiums (notably in the Prijedor suburb of Tukovi and in Ljubija). 

173. As soon as the Serbe had captured the first groups of non-Serbs, the 
large-scale deportations of the women started. Some were deported straight from 
the improvised detention facilities, the majority from the Trnopolje camp. The 
majority of deportees were cramped into buses or onto military trucks and sent 
towards Travnik. These deportees had to walk almost 30 km from where the trucks 
and buses dumped them in a desolate area in the outskirts of the Vladi6 Mountain 
to reach non-Serb held areas in central Bosnia. A few were deported the safer 
way to Bosanska Gradiika. Sizeable numbers were taken by rail - many in cattle 
wagons - to Travnik. Some women were let off the trains in Doboj from where 
they were ushered ahead on foot in the direction of Tuzla. Some individuals 
perished during the transport owing to the mid-summer heat and to suffocating 
conditions both in cattle wagons and on closed military trucks, where the 
deportees were also deprived of food and water. 

6. The strate ov of destruction 

174. The Serbe took power in Oofttina Prijedor on 30 April 1992, after more than 
six months of careful planning. After this, the non-Serbs had their homes and 
communities deetroyed and their families split and were deprived of their 
employment. The majority of non-Serbs were soon captured, thousands 
incarcerated in concentration camps, and even larger numbers deported. This all 
happened after the Serbe had sealed off most exits from the area. The non-Serbs 
represented no real threat to the Serbs under these circumstances, as the 
district of Prijedor was enclosed at the time by Serbien controlled and 
dominated areas (the non-Serb majority population in the Sanski Most district 
was purged simultaneously in Prijedor). 



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175. D«0pit« th« absenc« of a r«al non-S«rbian thrsat, th« main obj«ctive of th« 
conc«ntration camp«, ••p«cially Omaraka but also K«rat«rm, •••ms to hav« ba«n to 
•liminat« th« non-Sarbian laadarahip. Political laad«ra, officiala from th« 
courta and adminiatration, acadamica and oth«r intallactuala, raligioua laadara, 
kay buainaaa paopl« and artiata - tha backbona of th« Mualim and Croatian 
comrounitiaa - wara ramov«d, apparantly with tha intantion that tha ramoval ba 
p«nnanant« Similarly, law anforcamant and military p«raonnal wara targatad for 
daatruction* Thaa« p«opla alao conatitutad a aignificant alamant of tha 
non-Sarbian group in that ita daplation rand«rad tha group at larga dafencalaaa 
againat abuaaa of any kind. Oth«r important tracaa of Mualim and Croatian 
culture and raligion, including moaquaa and Catholic churchaa, wera daatroyad. 

7. Tha oanaral lack of orotaction for non-Sarba 

176. Proro tha tima whan tha Sarba took powar in th« diatrict of Prijador, 
non-Sarba, in raality, b«cama outlawa. At timaa, non-Sarba wara inatructad to 
w^ar whita arm banda to idantify thamaalvaa. Non-Sarba wara aubjactad to crimaa 
without tha n«w Sarbian laadara attampting to radraaa th« problem. Rap«, for 
axampl«, bacama a aarioua problam for many woman who wara laft alona bacauaa 
thair huabanda had ba«n datainad. Tha impraaaion waa allowad to spread among 
Sarba that thay would ba axonaratad if thay mada lifa dif ficult for non-Sarba ao 
that tha lattar would aak permiaaion to laava tha diatrict. According to naw 
Sarbian ragulationa, thoaa laaving tha diatrict had to aign ovar thair proparty 
righta to Sarba and accapt navar to raturn, baing told that thair namaa would 
aimultanaoualy ba dalatad from tha canaua. 



8. Raaponaibilitv 

177. Whan tha Sarba took powar in tha diatrict of Prijador, thay immadiataly 
daclarad tha axiatanca of a Krizni Stab Sroaka Qpitina Priiador . Includad in 
tha mambarahip of thia criaia committea wara tha military commandara 
Colonal Vladimir Arai6 and Major Radmilo Zaljaja, and othar diatrict laadara, 
auch aa Major Slobodan Kuruaoviö; tha Chiaf of Polica, Simo Orlja^a; 

Mayor Milomir Stakiö; tha Praaidant of tha Exacut iva Board of tha Aaaambly in 
Prijador, Mi6o KovaCaviö; tha Praaidant of tha Sarbian Damocratic Party in 
Prijador, Simo Miikovi6; and tha Praaidant of tha Rad Croaa in Prijador, 
Srdjo Srdi6. 

178. Tha military daatruction of tha non-Sarbian habitationa in Poitina Prijador 
took placa whan tha araa waa undar tha command of Colonal Vladimir Ära 16 and 
Major Radmilo Zaljaja in cloaa cooparation with military aupariora, at laaat in 
tha ragional capital Banja Luka. Unita atationad outaida of Qpitina Prijador 
aaaiatad in tha military daatruction, aa did paramilitary unita whoaa attacka 
wara timad to fit with tha artillary attacka and tha manoauvraa of tha ragular 
army unita. 



179. In tha abova-mantionad intarviaw printad in 
9 April 1993, Simo Drljaöa atatad: 



on 



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'*[T]h«y [th« polic« force, including th« ««erat Services] carrisd out my 
Orders and the ordere of the CSB (the Public Security Centre] Banja Luka 
and the Minister of Interior. 



• • 



"••• the Cooperation was excellent with the Army of Republika Srpaka and 
with the officers of that army. The Cooperation was manifested in the 
Joint cleansing of the terrain of traitors^ Joint work at the Checkpoints, 
a Joint intervention group against disturbances of public order and in 
fighting terrorist groups." 

The secret police and the military police provided the concentration caxnps with 
interrogators and guards. For some of the most gruesome torture and killings of 
detainees, the assistance of paramilitary units and some locals was also called 
upon. Quasi-military intervention units were used to trace and capture the 
non-Serbian leadership. The latter units killed prisoners arbitrarily during 
transport to the Manjaöa camp and arranged mass-killings of '*deported'* prisoners 
in the Vlafti6 Mountain area. 

180. The other members of the crisis committee ran the Community in which all 
these violations occurred. They participated in the administrative 
decision-making. The gains on different levels of the systematic looting of 
non-Serbian property were shared by many local Serbe. 

181* The Commission of Experte possesses the names of hundreds of alleged 
perpetrators at different levels and in a variety of capacities. 

9. ConglMgjpni 

182. It is unquestionable that the events in Oofttina Prijedor since 

30 April 1992 qualify as crimes against humanity. Purthermore, it is likely to 
be confirmed in court under due process of law that these events constitute 
genocide. 

B. The bettl e and sieoe of Sarajevo ig/ 

183. The bettle and siege of Sarajevo began on 5 April 1992, the eve of European 
Community recognition of Bosnia and Herzegovina ae an independent State. On 
that date, thoueande of people took to the streets in spontaneous peace marches. 
The largeet body of demonstrators headed towards the Parliament building and 
other buildinge reportedly seized by Serb forces. Unidentified gunmen were then 
reported to have fired into the crowd. One protestor was confirmed dead. Since 
that date, the siege and relentless bombardment froro the hills surrounding 
Sarajevo haa taken a tremendous physical toll on the city and its inhaibitants. 



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1. Structure and location of force« in and around the citv 

184. Sinc# the beginning of th« «leg«, the firat Corps Sarajevo has served aa 
tha defanaiva forca of tha Boanian Govarnmant in and around Sarajevo. Moat 
aaaeaamenta characterize the firat Corpa Sarajevo aa auperior in infantry 
numbera aa compared to the beaieging forcea, but clearly deficient in firepower. 
The firat Corpa Sarajevo headquartera ia located at Sarajevo. The Croatian 
Defence Council and the firat Corpa forcea fought together in defence of the 
city throughout much of the aiege deapite oppoaing one another in Moatar and in 
other parte of Boania and Herzegovina. However, on 10 November 1993, the 
Croatian Defence Council Brigade waa diabanded and part of ita personnel joined 
a new Croatian brigade of the firat Corpa. 

185. The Sarajevo Romanija Corpa ia the Boanian-Serb forca of the Boanian- 
Serbian Arniy. The Corpa haa aurrounded the city aince the beginning of the 
siege. 49 / It ia the aucceaaor cf the unit of JNA that occupied the aame 
poaitiona until May 1992. The Romanija Corpa headquartera are located 
overlooking the city at Lukavica. The command atructure haa for the moat part 
remained the aame throughout the aiege. Three aucceeding Generals have 
commanded that Corp since 1992. 



186. Although the Serbian forcea aurrounding the city have super ior 
it haa been obaerved that it ia unlikely that they could effectively take 
control of the city. Thia obaervation ia baaed, in part, on the fact that the 
Boanian forcea have more combatanta. In addition, Controlling the city and ita 
numeroua buildinga and atreeta could prove an overwhelming taak for the Serb 
forcea. The Serb forcea have, therefore, concentrated their ef forte on 
weakening the city through conatant bombardment from the aurrounding hillsides. 
A poaaible explanation for the ahifting of firing aitea from the mountainoua 
areaa aurrounding Sarajevo may be that artillery personnel move from one 
emplacement to the other. Another explanation for thia phenomenon could be the 
pattern of delivery of munitiona. There were, however, no apparent munitiona 
shortagea. 



2. Location and natura of the artillerv 

187. Many reporta in the chronology deacribed ahelling aa generally coming from 
artillery, mortara and tanka located in the hilla aurrounding the city. Some 
reporta deecribed varioua Serb-held areaa and deployment of forcea. Reporta of 
the beaieging artillery and other heavy-to-medium weapona employed in the aiege 
vary fron 600 to 1,100 piecea, but no verified account ia available. Theae 
estimatee do not include tanka. Some of the weapona were in fixed emplacementa 
such aa bunkere in the wooded hilla and mountaina aurrounding Sarajevo and ita 
suburba. On account of the denae foliage, the emplacementa were hard to detect 
from the air, particularly in the aunmer. Although the bunkere were difficult 
to aee from the roada, the direction from which artillery and heavy mortar 
Shells were fired revealed their emplacement. However, it waa difficult to 
determine whether the bunkere alao had anipera with riflea or peraonnel with 
small arme. 



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3. Fr«QU«ncv of ■hallino 

188. UNPROPOR and city officials indicat« that tha daily ahalling of tha city 
rangaa from 200 to 300 impacta on a quiat day to 800 to 1,000 shall impacts on 
an activa day. Tha chronology confirma that tha city haa baan ralantlaaaly 
ahallad. On tha daya whara a total ahalling count waa documantad, Sarajevo was 
hit by an avaraga of 329 ahall impacta per day. Tha ranga of ahalling activity 
on thaaa daya variad from a low of two impacta on both 17 and 18 May 1993 to a 
high of 3,777 impacta on 22 July 1993. 

189. An axamination of tha ranga of daatruction in Sarajevo raveala a pattern of 
apecific targating. Tha following targeta wäre documented in the chronology as 
baing among tha moat frequently targated aitea in tha city: the Kosevo 
Hoapital; the Sarajevo radio and televiaion atationa; the Oalobodenje Newspaper 
building, which ia atill in Operation; the public tranaportation System; the 
Preaidency and Parliament buildings; the main city brewery; the flour mill; the 
mein bakery; the Olympic complex; the induatrial area of Alipaain Moat near the 
railway atation and main televiaion tower; the Jewiah cemetery; the Lion 
Cemetery; the city airport; the tobacco factory; the Dobrinja apartment complex; 
the central diatrict; Baacaraija (the old quarter of mosquea); the Stari Grad 
Section; New Sarajevo; the main thoroughfare on Marahal Tito Street; and the 
Shopping diatrict at Vase Miskina. 

190. The chronology confirma that certain areas of the city have also been 
systematically shelled throughout the course of the siege, particularly cultural 
and religioua atructurea and public utilitiea. The city centre, the airport and 
southwestern suburbs had consistently been the most often targated areas. The 
historic old town area had also been heavily shelled. 

5. Patterns of r andern shellina 

191. A review of the incidents in the chronology also indicates a random process 
of shelling throughout the civilian areas of the city. The shelling, which 
occurs at different timea of the day without any apparent pattern or specific 
target, has a terror-inapiring effect on the civilian population. It is 
particularly telling that deaths, injuries and daatruction have occurred in 
various parte of the city and in such well-known non-military settings as 
schools, open streets, public parke, football and athletic fields, cemeteries, 
hospitals, and even bread, water and relief lines in the city. 



6. Link between shellina activitv and oolitical events 

192. A review of the incidents in the chronology reveals a pattern of heavy 
shelling prior to and during the various peace Conferences, and other 
negotiationa, suggesting a political link to the attacks. 50 / There are also 
indications that Shell fire has increaaed or decreased in reaction to Statements 
by local and international political leaders and Governments. 51 / 



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193. On 5 February 1994, at l«aat 68 p^raona wara killad and 200 othara wara 
woundad in tha ahalling of a roarkat in tha city cantra. In raaction to that 
attack, NATO iaauad an Ultimatum on 9 Fabruary which gava Boanian Sarb and 
Bosnian forcaa 10 daya, atarting on 11 Fabruary, to withdraw thair haavy waapona 
from a daaignatad axcluaion zona or faca haavy airatrikaa. Vary littla prograaa 
waa mada with ragard to tha Ultimatum until 17 Fabruary, whan tha Ruaaian 
Föderation announcad that it waa aanding a contingant of 400 troops to tha city, 
and perauadad Boanian Sarb forcaa to comply with tha NATO Ultimatum. On 

20 February, NATO announcad that thara had baan Virtual compliance with tha 
Ultimatum and that thara waa no need for airatrikaa "at thia staga". Sinca that 
data, artillary fira haa aubatantially dacreaaad in Sarajevo. 

194. Tha cumulativa affact of tha numbar of civilian caaualtiaa, the deatruction 
of non-military atructurea, attacka upon and deatruction of protected targets, 
such aa hoapitala, cultural proparty and othar impermiaaibla targets, evidence a 
consistent and rapeated pattarn of grave braachaa of the Geneva Conventions and 
other violationa of international humanitarian law. The length of time over 
which theae violationa took place and thair recurrence clearly establish that, 
in at least a large number of incidenta, thoae ordering and carry ing out these 
actione comroitted such violationa. Command reaponaibility also clearly exists. 



C. Sarajevo inveatioation 12/ , 

195. From 20 June to 9 July 1993, the Commiaaion aent an investigative mission 
to i:arajevo, then under aiege, to undertake a law-of-war atudy of a specific 
incident in the bettle of Sarajevo and an analytical law-of-war survey of the 
battle of Sarajevo« The mission included a group of Canadian military lawyera 
and police inveatigatora. 

196. The miaaion participants met with a wide ränge of local officials, 
including the Bosnian State War Crimea Commission, city officials, medical 
officials and military officara. 

197. The objective of the incident atudy waa to analyaa in depth a specific 
incident which occurred during the siege of Sarajevo, to identify specific 
violationa of the law of war (particularly violationa in which civilian 
casualtiea have occurred) to analyaa the circumatancea of the incident and to 
assesa the feaaibility of identifying and proaecuting alleged offendera 
(particularly the military commandera). Tha raport ia baaed on Information that 
could be obtained in and around Sarajevo. 

198. No incident waa choaen prior to arrival in Sarajevo. Criteria to be 
considered in selecting an incident included: number of caaualtiaa, number of 
projectilea fired, aourcaa and, to a leaaer extent, time elapaed aince the 
incident. It waa hoped that it would be poaaible to get Information from 
Boanian, UNPROFOR and Serbian sourcea. The rationale for pref erring an incident 
in which more than one projectile waa fired waa that multiple projectilea would 
give a strenger indication of intant to commit an offence. 

199. Boanian State War Crimea Commission authoritiea wäre requeated to provide 
evidence concerning aix incidenta of thair choice, on the underatanding that 



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thos« incid^nts would b« considered, but not nacessarily choaen, for in-depth 
invAstigationr. The evidence could not b« compilad by the Commission within a 
Short p«riod of tim« and, as a rasult, an alternative approach was decided upon. 
Bosnien authorities suggested six incidents about which they believed a 
reasonable amount of information would be available. Two of these incidents, 
the shelling of a soccer game on 1 June 1993 and the shelling of a funeral in 
mid-June 1993, were selected for the possible in-depth investigation. 
Preliminary investigation indicated information on the shelling of the funeral 
would only be available from one source, as heavy rains the day after had washed 
away the evidence which UNPROFOR had intended to gather« 

200. The incident finally selected for in*depth investigation was the mortar 
shelling of a soccer game in the Dobrinja suburb of Sarajevo on 1 June 1993. 
The investigators interviewed several witnesses on the Bosnian aide, and also 
reviewed the crater analysis produced by UNPROFOR. Investigators were unable to 
interview witnesses on the Serbian aide. 

201. On the basis of the investigation it is reasonable to conclude that: 

(a) Two mortar Shells landed at the soccer tournament at approximately 
10.30 a.m. on 1 June 1993; 

(b) Thirteen persons were killed and 133 injured by the Shells; 

(c) The Shells were fired from the Serbian side, approximately 300 m south 
of Lukavica barracks> 

(d) The weather was clear and sunny with good visibility; 

(e) The area where the shelling occurred was exclusively residential; 

(f) The game site could not be seen from the Serbian aide because it was 
surrounded by apartment buildings, but the cheering could be heard at the front 
line; 

(g) No projectiles had landed in the area for several months. 

202. On the basis of the above factors, it is reasonable to conclude that a 
prima facie case exists that persons on the Serbian aide deliberately attacked 
civiliana and, therefore, committed a war crime. With the information 
available, it ia not poaaible to identify the probable off ender a at preaent. 

203. In connection with the analytical law-of-war aurvey and of the battle of 
Sarajevo, the study team viaited several incident aitea in Sarajevo. The 
ahelling and aniping precluded an in-depth aurvey of property damage. The team, 
however, met with a wide ränge of officiala of the Boanian Government and 
UNPROFOR officera and obtained documentary material from them. The team waa 
unable to meet with Serbian officiala in Pale, even though it attempted to do 
so. 



204. The report prepared by the investigation team is a non-exhaustive survey of 
law of armed conflict issues arising during the siege of Sarajevo. The team did 



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not hav« an opportunity to viait the Bosnian Serb Army forces during the 
investigation and received no allegationa of Bosnian Government misconduct 
during the siege except for allegations froro UNPROFOR sources concerning 
positioning of and firing by Bosnian Government forces. The report focuses on 
combat-related offences, unlawful targeting and the use of unlawful means and 
methods of warfare. It concluded that it is unlikely that weapons that are 
illegal per se were used during the siege, or that there was unauthorized use by 
personnel of the Bosnian Serb Army of vehicles carrying United Nations 
markings - which could be viewed as perfidious conduct. If persons were killed 
or wounded as a result of perfidious action, a grave breach of Protocol I would 
be established. Somewhat similarly, it would have to be established that named 
individuals attacked or authorized attacks on United Nations forces for these 
persons to be charged with violating the laws or customs of war, as set out in 
article 3 of the Statute of the International Tribunal, in that they would be 
committing a grave breach of article 85, paragraph 3 (a), of Protocol I by 
making the civilian population or individual civilians the object of attack. In 
the Sarajevo context, United Nations peace-keepers are non-combatants and 
entitled to be treated as civilians. The tendency of both aides to control 
food, water and electricity for Publicity purposes, the intermingling of 
military forces and the civilian population and the fact that no one appeara to 
have died during the siege from starvation, dehydration or freezing, combine to 
make difficult the establishment of a solid case that starvation is being used 
as a method of warfare. The conduct of this matter has been deplorable, but its 
criminality is debatable. 

205. Most of the war crimes committed in Sarajevo have involved attacks on 
civilian persons and objects and destruction of cultural property. An accurate 
list of persons killed and seriously injured during the siege of Sarajevo needs 
to be established. It will also have to be determined if, at the time of death, 
they were combatants or non-combatants and when, where and how they were killed 
or injured. Once this Information is available, it will be possible to 
distinguish military and civilian casualties. It may also be possible to 
determine where the projectiles causing casualties came from in such a way that 
one can establish that they were caused by a particular unit. It will also be 
possible to determine how many of the civilian casualties were caused by some 
form of sniper fire. Irrespective of the rule of proportional ity, it is 
reasonable to presume that civilian casualties caused by sniper fire are the 
result of deliberate attacks on civilians and not the result of indiscriminate 
attacks, as may be the case in Shell ing. 

206. The compilation of a chronological and quantitative survey of daunage to 
civilian objects in Sarajevo was not attempted by the study team. 53 / its 
preliminary observations follow. It is obvious that damage has been caused to 
certain religious, cultural and medical buildings. There is a streng 
possibility that there has been a deliberate attempt to target certain types of 
objects. For example, a detailed study of the shelling of the Kosevo medical 
facility or of the National Library would probably indicate these objects had 
been deliberately targeted. There is also a strong possibility that a 
deliberate effort has been made to target religious facilities. The concealment 
of Bosnian Government forces eunong civilian property may have caused the 
attraction of fire from the Bosnian Serb Army which may have resulted in 
legitimste collateral damage. There is enough apparent damage to civilian 



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objects in Sarajevo to conclude that eithar civilian objacta hava baan 
delibarataly targatad or they hava baan indiacriminataly attackad. 

207. Thara hava baan incidanta in tha paat whara aubatantial civilian casualtiea 
hava baan cauaad and aubatantial military advantaga gainad by a particular 
military action. In thoaa caaaa, ona might attampt to quantify both military 
advantaga and civilian loasea and apply the somawhat aubjactiva rula of 
proportionality. Aa a ganeral Statement, however, the rule of proportionality 
ia not relevant to the aniping activitiea of the Boanian Sarb Army forcea, and 
it ia of queationabla relevance to many of the artillery bombardmenta. The 
Boanian Sarb Army forcea are deliberataly targating the civilian population of 
Sarajevo, either as a meaaure of retaliation or to weaken their political 
resolve. Attacking the civilian population ia a war crime. 

208. It will probably be vary difficult to link particular individuala to 
specific incidenta in which civilians or civilian objacta hava been deliberataly 
attackad or subjacted to indiacriminata attacka. However, it may be leaa 
difficult to identify specific units. It may be poaaible to localize incidenta 
in such a way that it is clear that a certain unit under a particular Commander 
waa the cause of a number of incidenta. Whether or not it ia poaaible to 
develop a firm case againat individual soldiara or unit comroanding officers, it 
should be quite practicabla to develop a orima facie caae againat tha officar or 
officers responsible for the Bosnian Sarb Army forcea that hava been surrounding 
Sarajevo from the beginning of the siege. 

209. It is the view of the Commission that: 

(a) Tha study of a apecific incident in the battle of Sarajevo astablished 
with a reaaonabla degree of certainty that the civilian population had been 
deliberataly targeted, but it was not practicabla to identify the perpetratora; 

(b) The general study on the law of armed conflict and the battle of 
Sarajevo assessed a ränge of Information sourcaa and, relying on the doctrine of 
command rasponsibility, provided support for the Suggestion that it would be 
possible to develop a orima facie caae againat the Commander of the Bosnian-Serb 
forces surrounding Sarajevo for deliberataly attacking the civilian population 
(see annex VI.A). 



D. Medak Pock et investioation £1/ 

210. On 9 September 1993, Croat forcea attackad the Medak Pocket, a collect ion 
of small rural villagea and hamlets forming a finger of Serb-controlled land in 
Sector South jutting into Croat territory. The Croata quickly killed or routed 
the few Serb def ender a and overran the araa. Within aeveral daya, however, 
Croatian authoritiaa indicated a willingnasa to withdraw to their 8 September 
positions and to turn over the vacated territory to ÜNPROPOR. The withdrawal 
waa complated by 17 September. Aa United Nationa forcea entered the Pocket, 
they found every building burning or demoliahad. There were hundreda of such 
buildinga in the aeveral villagea and hamlata. Mona were habitable. Special 
sweep teama aaaeased and recorded damaga, searched for aurvivora and collectad 
bodiea. The teama included ÜNPROFOR medical officera, civil police (CIVPOL) 



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monitora «nd •oldier». V«ry «ubstantial report« wer« prepared on the Medak 
Pocket incident by UNPROPOR. To some extent, theee reporte duplicated one 
another but, coneidered together, they provided an excellent baeis for a 
subeequent inveetigation focueing on legal and foreneic issuee. 

211. The Coimnieeion eent a team coneieting of Canadian military personnel and a 
foreneic expert from Phyeiciane for Human Rights to vieit the area and the 
deetroyed villagee from 27 to 31 October 1993, and to review reporte and 
photographe provided by ÜNPROFOR and -Serb Republic of Krajina" authoritiee. 

212. Their inveetigation« concluded that, although some of the dead probably 
were murdered, no individual could at the time be identified to be directly 
responeible. Furthermore, there was no strong unambiguous pattern of criminal 
killing sufficient at the time to affix responsibility upon the Croat conunanders 
for deliberate killing of civilians. 

213. At the same time, this inveetigation reeulted in the following findinge 
concerning wanton destruction: 

(a) Unlike the evidence concerning the deathe arising from the Medak 
Pocket Operation, there wae a clear, obviou« and overwhelming pattern of wanton 
destructiion. Hundrede of homee were deetroyed; hundrede of other buildinge were 
deetroyed; moet animale were killed or taken; virtually all personal property 
wae deetroyed or taken; all vehiclea and farm equiproent were deetroyed or taken; 
hayetacke were eet on fire; and many welle were polluted. Devastation wae 
total; 

{by The timing of the deetruction wae inconeietent with any legitimate 
military conduct and not of military neceeeity. The bulk of thie deetruction 
occurred on 16 September, according to the many eyewitneeeee. The eounde of the 
exploeione, the rieing of the smoke from firee and the fact that many buildinge 
were etill on fire ae United Natione pereonnel entered the Pocket eetablieh 
thie; 

(c) The deetruction occurred well after all Serb reeietance had ended. 
There wae no Serb reeietance in the areae from which the exploeione were heard 
and the rieing emoke eeen. All effective Serb forcee had fled the area at the 
time of the bulk of the deetruction. The devaetation wae wrought in an 
unoppoeed withdrawal, not a contested advance or retreat. Even the Croat ian 
liaieon officer wae forced to uee an excuee not involving legitimate combat 
activity by the oppoeing forcee. The ecattered nature of the buildinge, with 
the brief and deeultory original Serb defence, doee not explain thie level of 
deetruction; 

(d) The wideepread deetruction by demolition and fire ie aleo generally 
inconeietent with legitimate military operatione. If buildinge are conteeted, 
then demolition chargee cannot ueually be placed ineide them. There was no 
other evidence to ehow how theee buildinge were deetroyed other than by enemy 
forcee being preeent in them; 

(e) Varioue contradictory excueee given by the Croat e for the deetruction 
euggeet the lack of any legitimate excuee for euch wideepread deetruction. 



«•« 



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214. It i0 the vi«w of th« Coamission that th« M«dak Pockat investigation report 
providtti exceptionally streng Support for tha suggastion that orima facia casas 
can be davalopad against namad Croatian sanior officara for tha wanton 
dastruction of civilian proparty* 

215. Tha report preparad for tha Coiranission and containad in annax VII as a 
reault of tha investigation includas suggestions for draft charges, synopses of 
evidence and trial plana for tha possible prosecution of named Croatian senior 
of f icers. 



E. Detention facilities !£/ 

216. Since the spring of 1992, tha warring factions to tha conflicts in the 
former Yugoslavia operated a variety of detention facilities (camps) throughout 
the former Yugoslavia. 

217. The Commission received Information concerning a total of 715 camps, most 
of which are now closed. The Commission* s Information about the exact date of 
opening and closing of these camps and the number of prisoners is 
incomplete. 56 / 

218. Of the 715 camps: 237 wäre operated by Bosnian Serbe and the former 
Republic of Yugoslavia; 89 wäre operated by the Government and army of Bosnia 
and Herzegovina; 77 were operated by Bosnian Croats, the Government of Croatia, 
the Croatian Army and the Croatian Defence Council; 4 were operated jointly by 
the Bosnian Government and Bosnian Croats; and 308 camps for which it is not 
known with certainty under whose effective control they were. 

219. The camps ränge in size from small detention centres that temporar ily house 
a few prisoners to camps that house large numbers of prisoners. The duration of 
their Operation varies from days to months. The purposes of the camps vary as 
well. 



220. Owing to the natura of the several conflicts and the military structure of 
the warring factions (see paras. 110-128 and annex III), the control of camps 
varies. At different points in time, the same camp may be controlled by the 
army, the central Government, local and political authorities, the police, 
various military groups and local armed civilians. 

221. The various groups identified above converted pre-existing structures, such 
as municipal buildings, administrative Offices, schools, sports arenas within 
the occupied areas and larger facilities on the outskirts of those areas 
(factories, warehouses, quarries and roines), into camps* Using these 
pre-existing facilities allows for quick and easy control and displacement of 
the targeted population of a controlled or conquered geographic region by one of 
the warring factions. There is no particular distinction between facilities 
holding prisoners of war and non-combatant civilians. 

222. The camps are frequently used to detain the civilian population that has 
been forcibly displaced from particular regions. Detention either precedes or 
follows armed engagements in these regions. Wholesale detention of persons from 



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anoth«r •thnic or rsligious group occurs ev^n wh«n th«r« i« nothing to suggest 
that IntttrnflMnt of civilians is n«c«saary for any valid I«gal purpoa« (••• 
paras. 129-150 and annax III). 

223. Camps are frequsntly th« report«d Sites of mass sxscutions, torture, rapes 
and othsr forma of ssxual assault« Thsy ars ths scsns of ths worst inhumane 
acta. These inhumane acte are coromitted by guards, police, special forces, and 
others who are allovred to come from the outside to perform such acta. 

224. As the following discussion indicates, the number of camps and the number 
of reported violations in camps controlled by the Government of Bosnia and 
Herzegovina and its army are by far the lesser of the warring factions, 
irrespective of the ethnic or religious background of the detainees they hold. 
The number of reported violations by the Croatian Government, the Croatian Army 
and the Croatian Defence Council is larger, particularly against Serbe in 
Krajina and in eastern and western Slavonia and against Muslims from Bosnia and 
Herzegovina in Herzegovina. The period öf time during which those caunps were 
operated in each of these contexts is relatively limited. The two warring 
factions identified above are however reported to have a much lesser number of 
violations than those committed by the Serb forcee and those working on their 
behalf, whether in Croatia or Bosnia and Herzegovina. Camps operated by Serba 
in Bosnia and Herzegovina are by far the ones where the largest numbers of 
detainees have been held and where the cruellest and largest number of 
violations occurred. 

225. The characteristics and patterns of violation in the camps differ widely 
depending on the Controlling authority, the purpose of the camp and the camp 
Commander . 

226. Following is a summary description of camps divided by warring factions in 
control. S2/ 

1. Bosnien Government camps 

227. Bosnien Government camps are reported to have been the site of cases of 
grave breaches of the Geneva Conventions. These allegations include killing and 
torture of Croatian and Serbien pr isoners. The number of reports and 
allegations are, hovrever, limited. The Comnission has not been able to detect 
any particular pattern or policy of wrongdoing. The Commission has, however, 
ascertained thet the Government of Bosnia and Herzegovina hae expressed its 
Opposition to these individual violations. 



2. Bosnian-Croat. Croatian Defence Council, Croatian 
Government and Croatian Armv camps 

228. The Bosnian-Croat and Croatian Defence Council camps were in Herzegovina. 
The Croatian Government and Croatian Army operated camps were in the Krajina 
area, in eastern and western Slavonia and in other parte of Croatia. Grave 
breaches of the Geneva Conventions have occurred in theee facilities against 
Serbe and Bosnien Muslims, including killing, torture and rape. The Commission 

/... 



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has not hmmn mblm to d«t#ct any particular patt#rn or policy in operating thesa 
camp«. Th« Conmiaaion haa Information concarning tha location and aom« 
inforroation about tha phyaical layout and command atructura of aome of thaaa 
campa. The Coimnisaion alao haa information concerning the killinga and torture 
inflicted on the interned population, aa well aa the namea of aoroe perpetratora 
and victime. The largeat number of violationa reported are in the Krajina and 
eaatern and weatern Slavonia againat Serbe and in Herzegovina by Boanian Croata 
and the Croatian Defence Council againat Boanian Mualiina. The Government of 
Croatia haa, aince lata 1993, according to information received by the 
Commiaaion, condemned theae violationa and aought to curb their occurrencea. 

3. "Boanian Serb Reoublic" camoa 

229. The Commiaaion haa information that Boanian Serba are operating campa where 
grave breachea of the Geneva Conventiona and other violationa of international 
humanitarian law, including killing, torture and rape reportedly occur on a 
large acale. Theae campa are moatly in Boania and Herzegovina and hold Boanian 
Muslima for the moat part, but alao Boanian Croata. The Boanian Serba uae campa 
to facilitate territorial and political control of a geographic region and to 
expel and eliminate other ethnic and religioua populationa from that area. The 
Commiaaion haa detailed information concerning aome of the locationa and 
phyaical layout a of aome of theae campa, including deacriptiona of the varioua 
buildinga where priaonera are detained, interrogated, tortured and killed. The 
CoRvniasion alao haa information about aome camp Commanders and military units in 
the areas and individual violatora* 

230. The following patterna have reportedly emerged from theae campa: 

(a) Campa are ultimately intended to achieve "ethnic cleansing** (see 
paraa. 129-150 and 151-182 and annex V); 

(b) Groupa of campa are eatabliahed and operated in cluatera in varioua 
geographical areaa and are frequently part of a network. Priaonera are 
frequently moved from one facility to another. Different facilities often have 
separate specific purposee like mass killing, torture, rape and exchange and 
holding of civilian pr isoners; 

(c) Detainees are aometimea tranaported from campa within a given region 
to campa in another region becauae of overcrowding, anticipated ICRC inspection, 
Visits by the media, exchange of prisoners and as a result of triage for 
unlawful purposee; 

(d) Purposeful humiliation and degradation of prisoners is a common 
feature in almoat all campa; 

(e) After a village, town or city is conqpaered, the local population is 
rounded up en masse and interned in different locationa. During the rounding-up 
proceas, members of the population are frequently tortured, raped and killed. 
Local religioua, political, civic, professional, business leaders and prominent 
Personalities are singled out for the worst abuaes. On the captors' aide, local 



/... 



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civil .«rvant«, politic«! l«.d«r. and particularly th« polic« participate or are 
involv«d in th« rounding-up process; 

(f) Prison«r« ar« forc«d to «urrand^r th«ir mon.y and valuable» to their 
captor« and, if relea««d, th«»« valuabl«« ar« not r«turn«d; 

la) In mo«t in.tanc««, captor« int.rrogat« pri«on«r« for information about 
military and .tr.t«gic information, political affiliation and Political belief. 
captor. also int.rrogat« d«tain««. conc«rning th« p«r.onal waalth and family 
connaction. o« oth«r d«t«in««.. Mo.t of th« tim«, th« «^.«.tioning i» unr«lat9d 
to military or .«curity mattar.. Almo.t alway«, int«rrogation i» accompanied by 
brutality and humiliation and, in many ca«««, by tortur« and murder; 

(h) Th« •mall«r camp« hou«« th« population tamporarily until th« captora 
divid« th« pri8on«r. into «mallar group. and tran.port th«m to larger campe or 
to eeparat« s«ction. of larg« camp«. Wh«n pri«on«r. ar« tran8port«d to larger 
campa, they ar« oft«n pacJcad tightly into bu.««, lorri«. or fr.ight and sattle 
traini and ar« aubjected to phy.ical and mental abua«. Whil« b«xng transported, 
priaoner« ar« oft.n Jcill«d at random and ar« d«n-«d food, wat«r and acceee to 
toil«t faciliti««. Wh«n th« bu««a or fr«ight car« r«ach th«ir destinattons, 
while th« priBon«r« ar« unloadad, 9«v«ral priaonar« ar« oft«n killed. Som«time8 
pr isoners are transported by car to camps by locals; 

(i) M«n b«tw««n th« ag«s of 16 (or young«r) and 60, who are considered to 
be of military age, are usually separated from older m«n, wom«n and children. 
These men are transferred to haavily guardad largar camps wh«r« killings and 
brutal tortur« ar« pr«v«lent; 

(j) At th« larg«r camps, prisonars ar« •ubj«ct«d to random beatings. Many 
prisoners are beaten under the guise of being interrogated . Beatings, more 
severe torture and killings escalate when there has been a Bosnian-Serb military 
setback and when there are Serb casualties; 

(k) Prisoners who are targeted for tortur« or death at the larger camps 
include prominent members of the Community who are wealthy, educated or 
politically influential persons in the comrounity. Guards usually have 
information identifying which prisoners fall into thes« cat«gori«s. Th«y obtarn 
that information from thair own local population, through coarcion and violence 
from other prisoners or from other detention facilities that are used solely to 
interrogat« displaced populations; 

(1) In several instances, prisoners have been forced to inflict injury on 
each other, sometimes as entertainment for the guarda. In other instances, 
prisoners are mass executed by machine-gun fire; 

(m) In most camps (particularly during the second half of 1992 and 
the first half of 1993), prisoners are killed on a daily basis. Their bodies 
ar« som«tiro«s l«ft to rot on camp grounds, dispossd of in mass graves abutting 
th« camps and thrown into rivars, ravin««, min« shafts and mining pits. The 
Commission has some Information concerning the locations of many of these mass 
graves (see paras. 253-263 and annexes X, X.A and X.B); 



/... 



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(n) WoflMn, children and mmn ov«r 60 years of ag« ar* usually separated 
from othttrs and tak«n to separat« campe. These campe are guarded and surrounded 
by fencee, but prisoners are usually allowed to walk from building to building 
within the camp Compound. Although fewer killings occur at these campe, torture 
and particularly rape are commonplace; 

(o) Rap« is prevalent in the campe (eee parae. 231-252 and annexes IX 
and IX. A). Captors have killed women who reeisted being raped, often in front 
of other prisonere. Rapee were also comroitted in the presence of other 
prisonere. Women are frequently selected at random during the night. These 
rapee are done in a way that instills terror in the women prisoner population. 
The Commission has Information indicating that girls ae young as 7 years old and 
women ae old as 65 have been raped while in captivity. 58 / The group most 
targeted for rape, however, is young women between the agee of 13 and 35. 
Mothers of young children are often raped in front of their children and are 
threatened with the death of their children if they do not submit to being 
raped. Sometimee young women are separated from older women and taken to 
separate campe where they are raped several timee a day, for many days, often by 
more than one man. Many of theee women disappear, or after they have been raped 
and brutalized to the point where they are traumatized, they are returned to the 
campe and are replaced by other young women. There have also been instances of 
sexual abuse of men as well as castration and mutilation of male sexual organs; 

(p) Prisoners in all camps are subjected to mental abuse and humiliation, 
including barrages of ethnic slurs. Prisoners are detained in unsanitary 
environments where dysentery and lice epidemica are rampant. Prisoners are 
often denied the use of tollet facilitiee. Often, male prisoners of fighting 
age are packed so tightly in the prison facilitiee that they do not have room to 
lie down or sit, or sometimee even to breathe. In addition, prisoners are 
nearly starved to death and, at best, are given one meel a day consisting of 
meagre portions of thin soup and bread. In inatancee where food is delivered to 
a camp by the ICRC, the food is not distributed to prieoners as intended. 
Instead, food is retained for the Bosnian-Serb fighting forces or is consumed by 
the camp guarde. Furthermore, medical attention is, for the most part, 
non-existent at the camps, and often sick and wounded prisoners are buried alive 
in maes gravee along with the corpses of killed prisoners. 

231. The Commission concludes that grave breachee of the Geneva Conventions and 
other violatione of international humanitarian law have been committed over a 
long period of time, on a large scale, and very frequently in the most brutal, 
inhuman and degrading manner. These violatione are ordered by or known to the 
camp commandere, the local political leadership and police. Arroy units may or 
may not be involved. However, they do not intervene to stop these violatione, 
thereby implying reeponsibility by Omission. 

F. Rape and other forme of sexual assault 59 / 

232. Throughout the various phases of the armed conflicts in the former 
Yugoslavia, there have been numeroue reports of wideepread and systematic rape 
and other forme of sexual assault. The Commission, concerned about these 



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reported crime«, undertook several mean« of reaearch and inveatigation to 
aacertain the facta. 

233. The Conwiiaaion aought particularly to examine the relationahip between 
-ethnic cleanaing- and rape and other form« of sexual aeaault. 

234 Owing to the aocial Stigma attached - even in times of peace - rape is 
among the leaat reported crimea. For thia reaaon, it ia very difficult to make 
any general aaaeaament of actual number« of rape victime. In the former 
Yugoalavia, there appears to have been very little, if any, difference between 
the ethnic groupa in the reluctance to report rape. The overall reluctance to 
report rape ia aggravated by war, especially if the perpetrators are soldiers 
and aleo where there i« a general condition of chaoa and a breakdown in law and 
Order. The victime may have little confidence in finding justice. The streng 
fear of reprisal during wartime adds to the silencing of victime. 60/ The 
perpetrators have a streng belief that they can get away with their crimes. 



235. Men are also subject to sexual assault. They are forced to rape women and 
to per form sex acta on guards or each other. They have also been subjected to 
castration, circumcision or other sexual mutilation. 



1. Rape and sexual asaaulta studv; the Coromiasion's database 61/ 

236 The reports contained in the Commission's database identify close to 800 
victime by name or number. 62/ An additional 1.673 victime are referred to, but 
not named in reporte of victims who indicate that they have witnessed or know of 
other similar victims. Additionally, there are some 500 reported cases which 
refer to an unspecified number of victims. The victime' ages, as reported, 
ränge from 5 to 81 years old, with the majority of victims below 35 years old. 
The reported caaes identify some 600 alleged perpetrators by name. In other 
cases, victims refer to a specific number of perpetrators, but do not identify 
them by name. In those cases of unidentified perpetrators, about 900 
perpetrators are referred to. Of all the reports received, about 800 contain 
general Information, identifying some perpetrators as soldiers, police, 
paramilitary, special forces, etc. The alleged perpetrators include. military 
personnel, special forcee, local police and civilians. About 80 per cent of the 
reported caeee specify that they occurred in settinge where the victims were 
held in custody. 

237. The reported casee of rape and sexual assault contained in the database 
occurred between the fall of 1991 and the end of 1993. The majority of the 
rapee occurred from April to November 1992; fewer occurred in the following five 
months. In the same time period, the number of media reports increased from a 
few in March 1992 to a high of 5 35 news stories in January 1993 and 529 in 
February 1993. This correlation could indicate that the media attention caused 
the decline. In that case, it would indicate that Commanders could control the 
alleged perpetratore if they wanted to. 63/ This could lead to the conclusion 
that there was an overriding policy advocating the use of rape as a method of 
-ethnic cleansing-, rather than a policy of omiasion, tolerating the widespread 
commission of rape. 



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2. Pilot study on rap« 

238. From 29 June to 9 July 1993, the Conunisaion sent an investigative mission, 
consisting of Canadian military personnel, to Sarajevo to undertake a pilot 
study on the rape iasue. 64/ The objective was to review available Information 
and to develop a methodology for interviewing witnesses and victims in order to 
determine how relevant evidence could be obtained for use before a tribunal. 

239. In Sarajevo, the investigative team obtained all the relevant Information 
from the database of the War Crimes Commission of Bosnia and Herzegovina. The 
database lists 126 victims, 113 incidents, 252 alleged perpetrators, 73 
witnesses and 100 documents. Of these, there were 105 rape cases. 

240. It is the view of the Commission of Exports that the pilot study of the 
rape issue was relatively generalized. Althöugh the pilot study assessed 
various Information sources, it was not practicable to gather precise 
information leading to possible prima facie cases. 



3. Rape and other forme of sexual assault: interviewing 
victims and witnesses 

t 

241. A series of interviewe was carried out by the Commission in Croatia and 

Slovenia in March 1994. 65/ Among the 146 victim-witnesses from Bosnia and 
Herzegovina who were interviewed, 31 were women victims of rape, and two were 
suspected by the Interviewer to have been victims themselves but were unwilling 
to speak of their own experience. One of the men from Bosnia and Herzegovina 
interviewed was a victim of sexual assault. This occurred in a detention 
facility. Among the women, 18 66/ were raped in their own homes, while 13 had 
been raped while in detention. Among the other men and women interviewed, there 
were 21 witnesses to additional cases of rape or sexual assaults. 67 / This 
involves a total number of 55 persons who were either the victims of or 
witnesses to rape or sexual assault. 

242. Among the 77 victim-witnesses from Croatia who were interviewed, 11 were 
women victims of rape. Six of the men from Croatia who were interviewed were 
victims of sexual assault. In the case of the men, all but one of these 
violations occurred in a detention context. However, seven of the women had 
been raped in their own homes. These women were victims of multiple and/or gang 
rapes involving up to eight soldiers. Four women were raped while in detention, 
among them was a woman who was detained in her own home for six months and raped 
almost daily. Among the other men and women interviewed from Croatia, nine were 
witnesses to additional cases of rape or sexual assault. This involves a total 
number of 27 persons who were either the victims of or witnesses to rape or 
sexual assault. 

243. All of the information gathered through the 223 interviewe, 6^/ that were 
conducted by the Commission has been made available to the Prosecutor of the 
International Tribunal. There has been insufficient time between the end of the 
interview process (31 March 1994) and the finalization of the present report 

(30 April 1994) for a detailed analysis of the cases to be conducted by the 
Commission. 62/ However, the information gathered seems to support the analysis 

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carried out on th« ba»i» of the allegation« included in th« Commission' • 
database. In th« following paragrapha, th« patterna of rap« and sexual assault 
identified through the databaee are outlined, while illuatrationa are given 
which are drawn froro among the interviewe. 

244. Five patterna Ifl/ emerge from the reported caeee, regardleee of the 
ethnicity of the perpetratore or the victime (eee aleo para. 229 for a 
deecription of rape practicee in custodial aettinge). 

245 The firet pattern involves individuala or small groups committing sexual 
assault in conjunction with looting and intimidation of the target ethnic group. 
This is before any widespread or generalized fighting breaks out in the region. 
Tensions in an area grow and members of the ethnic group Controlling the 
regional government begin to terrorize their neighbours. Two or more men break 
into a house. intimidate the residente, steal their property, beat them and 
often rape the females. Some of the reported rapes are Singular and aome 
multiple. In either case, there is often a gang atmosphere where the abuses are 
part of the same event and all the attackers participate, even if they do not 
sexually assault the victime. One of the women xnterviewed was gang-raped by 
eight soldiers in front of her six-year-old sister and her f ive-month-old 
daughter. One of the men was forced at gunpoint to rape the victim, "as she was 
an Ustasha". When she reported the crimes to local authorities, they said they 
could do nothing as "she was a Croat". 

246. The second pattern of rape involves individuals or small groups committing 
sexual assaults in conjunction with fighting in an area, often including the 
rape of women in public. When forces attack a town or village, the population 
is rounded up and divided by sex and age. Some women are raped in their homes 
as the attacking forces secure the area. Others are selected after the roundup 
and raped publicly. The population of the village is then transported to campe. 
One victim-witness interviewed saw an elderly woman and others raped in front of 
a group of 100 detained villagers. The witness was herseif threatened with rape 
and she saw a number of men from the group having their throats cut. 

247. The third pattern of rape involves individuals or groups sexually 
assault ing people in detention because they have access to the people. Once the 
population of a town or village haa been rounded up, men are either executed or 
sent off to campe, while women are generally sent off to separate campe. 
Soldiers, camp guards, paramilitariee and even civiliane may be allowed to enter 
the camp, pick out women, take them away, rape them and then either kill them or 
return them to the site. Reports frequently refer to gang rape, while beatinge 
and torture accompany most of the reported rapee. Survivors report that some 
women are taken out alone, and some are taken out in groups. Though this is the 
general pattern, there are also many allegations that women are raped in front 
of other interneee, or that other internees are forced to sexually abuse each 
other. In campe where men are detained, they are aleo subjected to sexual 
abuse! During the Commiseion's interviewing process 15 people were interviewed 
whose major allegatione related to the same detention camp. Some witnesses were 
men, and all of the women victime had been raped. The women were sometimee gang 
raped by, or in the presence of, the camp Commander. Guarde from the external 
ring of security around the camp (who apparently did not enter the camp in the 
course of their work) and soldiere who were strangere to the camp would be 



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allowed access to th« camp for rape. One of the victim-witnesaes interviewed 
saw a woman die after being in a coma for a week ae a reeuit of about 100 
Sadist ic rapes by guards. Sexual assaults were also practised against men; one 
witness saw prisoners forced to bite another prisoner*s genitale. In addition, 
10 of those interviewed had witnessed deaths by torture and seven of the group 
had survived or witnessed mass executions (there or in other camps). Another 
incident related in an interview involved prisoners lined up naked while Serb 
women from outside undressed in front of the male prisoners. If any pr isoner 
had an erection, his penis was cut off. The witness saw a named Serb woman thus 
castrate a pr isoner. Another ex-detainee told of suffering electric shocks to 
the scrotum and of seeing a father and son who shared his cell forced by guards 
to per form sex acts with each other. 

248. The fourth pattern of rape involves individuals or groups committing sexual 
assaults against women for the purpose of terrorizing and humiliating them often 
as part of the policy of "ethnic cleansing**. Survivors of some camps report 
that they believe they were detained for the purpose of rape. In those caunps, 
all of the women are raped c|uite frequently, ofterv in front of other internees, 
and usually accompanied by beatings and torture. Some captors also State that 
they are trying to impregnate the women. Pregnant women are detained until it 
is too late for them to obtain an abortion. One woman was detained by her 
neighbour (who was a soldier) near her village for six months. She was raped 
almost daily by three or four soldiers. She was told that she would give birth 
to a chetnik boy who would kill Muslims when he grew up. They repeatedly said 
their President had ordcred them to do this. One woman *s home was taken by 
Serbien neighbours and used as a detention centre for interrogations over 
several months. She was raped almost daily and beaten for several months; two 
other women were raped there too. She saw several killings and torture. 

249. The fifth pattern of rape involves detention of women in hoteis or similar 
facilities for the sole purpose of sexually entertaining soldiers, rather than 
causing a reaction in the women. These women are reportedly more often killed 
than exchanged, unlike women in other camps. One woman interviewed was detained 
in a private house with a number of other women for six months. The women were 
of mixed ethnicity. All the women were raped when soldiers returned from the 
front line every 15 days. The witness was told that the women had to do this 
because the women in another camp (which the witness named and which has been 
documented by other Information gatherers) were exhausted. 



250. Common threeds run through the cases reported whether within or outside of 
a detention context: 

(a) Rapes seem to occur in conjunction with efforts to displace the 
targeted ethnic group from the region. This may involve heightened shame and 
humiliation by raping victims in front of adult and minor family members, in 
front of other detainees or in public places, or by forcing family members to 
rape each other. Young women and virgins are targeted for rape, along with 
prominent members of the Community and educated women; 

(b) Many report s State that perpetrators said they were ordered to rape, 
or that the aim was to ensure that the victims and their families would never 
want to return to the area. Perpetrators teil female victims that they will 



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b«ar childran of th« p«rp«trator ' s ethnicity, that th«y must bacom« prägnant, 
and than hold tham in custody until it is too lata for th« victims to gat an 
abortion. Victina ara thraatanad that if thay avar tall anyona, or anyona 
discovers what haa happanad, tha parpatratora will hunt tham down and kill tham; 

(c) Larga groupa of parpatratora aubjact victima to multipla rapaa and 
saxual asaault. In datantion, parpatratora go through tha datantion cantraa 
with flashlighta at night aalacting woman and raturn tham tha naxt morning, 
whila camp coiranandara oftan know about, and aomatimaa participata in, tha saxual 
aasaulta; 

(d) Victima may ba aaxually abuaad with foraign objacta lika brokan glaaa 
bottlas, guna and trunchaons. Gast rat iona ara parformad through cruda maans 
such aa forcing othar intarnaaa to bita off a prisonar'a tasticlaa. 

251. Rapa haa baan raportad to hava baan committad by all sidaa to tha conflict« 
Howavar, tha largaat numbar of raportad victims hava baan Bosnian Muslims, and 
tha largaat numbar of allagad parpatratora hava baan Bosnian Sarbs. Thera ara 
few raporta of rapa and saxual assault batwaan mambara of tha sama ethnic group. 

252. In Bosnia, soma of tha raportad rapa and saxual assault casas committad by 
Sarbs, m'ostly against Muslims, ara claarly tha rasult of individual or small 
group conduct without avidanca of command diraction or an ovarall policy. 
Howavar, many mora saam to ba a part of an ovarall pattarn whosa charactaristics 
includa: similaritiaa among practicaa in non-contiguous gaographic araas; 
simultanaous commission of othar intarnational humanitär ian law violations; 
simultaneous military activity; simultanaous activity to displaca civilian 
populations; common alemants in tha commission of rapa, maximizing shama and 
humiliation to not only tha victim, but also tha victim's Community; and tha 
timing of rapas. Ona factor in particular that laada to this conclusion is tha 
larga numbar of rapas which occurred in placaa of datantion* 71 / Thasa rapas in 
datantion do not appaar to ba random, and thay indicata at laast a policy of 
encouraging rapa supportad by tha dalibarata failura of camp commandars and 
local authoritias to axarcisa command and control ovar tha parsonnal undar thair 
authority. 

253. Thesa pattarns strongly suggast that a systeroatic rapa policy axistad in 
cartain araas, but it ramains to ba provan whathar such an ovarall policy 
existad which was to apply to all non-Sarbs. It is claar that soma laval of 
Organization and group activity was raquirad to carry out many of tha allagad 
rapaa. Furtharmora, rapa and saxual assault should ba axaminad in tha contaxt 
of tha practica of **athnic claansing", which is discussad in paragraphs 129 

to 150 and tha practicaa in detention campa discussad in paragraph 230. When 
viewad in thaaa contaxts, it is claar that grava braachaa of tha Ganava 
Convantiona occurrad, as did othar violations of intarnational humanitarian 
law. 22/ 



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G. 



21/ 



im 



254. Owing to th« large scal« of victimization that ha« takan placa over a 
aubatantial portion of tha tarritorias of Croatia and Bosnia and Harzegovina 
ainca 1991, thara ia a aignificant numbar of paraona who hava baan buried in 
roany individual and maaa gravaa« 

255. Tha Conmiaaion addraaaad tha quaation of maaa gravaa in its sacond int 
raport of 6 Octobar 1993 (S/26545, annax) and outlinad ita plana for the 
continuation of tha databaaa atudy and tha axhumation at Ovöara (Sector East 
Croatia) (aaa paraa. 265-276) and Packraeka Poljana (Sactor Waat Croatia) ( 
paraa. 277-284). 

256. Aa of 31 March 1994, tha Commiaaion racaivad Information leading to the 
idantification of 187 maaa grava aitaa throughout tha territory of the former 
Yugoalavia. 74 / Of tha reported aitea, 143 are located in Bosnia and 
Harzegovina and 44 are in Croatia« 

257. Tha numbar of bodiea in reported maaa graves rangaa from 3 persona to 5,000 
persona. Of the masa grava sitae, 65 are believed to contain at least some 
Muslime; 32 are believed to contain at leaat some Croata; and 19 are believed to 
contain at leaat some Serbe. Regarding the remainder of tha grava sites, 
reports on approximately 81 do not contain Information regarding ethnicity. 
Some grava aitaa are reported to contain bodiea from more than one warring 
faction. 2£/ However, theae numbera do not reflect whether the grave sites 
contain bodiea of civiliana and other non-combatanta or the bodiea of soldiers 
killed in combat. 

258. The number of bodiea seid to be contained in tha reported grave sites are 
aa followa: 25 grave aitaa contain leaa than 10 bodiea; 16 grave sites contain 
at leaat 10 to 20 bodiea; 29 grave aitea contain at leaat 20 to 50 victime; 22 
grave aitea contain at leaat 50 to 100 bodiea; 20 grave sites contain at least 
100 to 500 bodies; and 13 grave aitea contain 500 bodiea or more. Sixty-two of 
the Sites did not hava a apacific number of bodiea. 

259. Paraona buried in 81 of the reported grave altes are alleged to have been 
killed by Serbe; 16 of the aitea contain individuala reportedly killed by 
Croata; and 5 contain bodiee reportedly killed by Mualima. Tha remainder of the 
reporta on 87 inaaa gravae do not identify the ethnicity of the perpetrator. 
Again, it should ba noted that the individual or faction that was responsible 
for the killing may not have been responsible for the creation of the mass 
grave. 24/ 

260. Many alleged maaa gravaa are situated at or near the sites of identified 
detention facilitiee. In the Prijedor region alone, there are approximately 62 
grave aitea, some of which are aaid to contain the remains of pr isoners killed 
at Omaraka Camp, Keraterm Camp, and other campe located in the area. The BrCko 
area, where the Luka Camp waa located, may contain between 5 and 10 mass grave 
Sites. Grave aitae are alao cluatared in FoCa, Moatar, Rotor Varoa, PakraSka 
Poljana (aaa paraa. 277-284) and Marino Selo. 



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261. At l«««t 99 of th« all«g«d mass grav« «it«« app«ar to contain victiro« of 
mas0 killing«. In th«a« inatanc«», th« sourc« of infonnation clearly detailad 
th« circumatancM of th« killing or providad witn««« taatimony. 77/ Thua, aa 
more infonnation bocoro«« available, this numb«r may change. In addition, the 
number of grava« which allegadly contain at leaat 20 bodies, along with much of 
the aource Information regarding how many of tha grava aites wäre creatad^ 
suggests that thi« number will increase. Thia is particularly true at thoee 
Sites which were at or near detention facilities. The data, including witness 
Statements, indicate that many of those buried in mass graves were former 
prisoners in the various detention facilities throughout the territory • 

262. It should be noted that, as indicated above, the existence of mass graves 
does not necessarily mean that persons were unlawfully killed. However, there 
are several provisions of the Geneva Conventions which outline the treatment and 
burial of those killed during wartime. In soroe instances, these provisions may 
have been violated by those burying the dead in collective graves without proper 
Identification. Tg/ Thus, a mass grave may be important not only as a potential 
repository of evidence of a mass killing, but the method and manner by which the 
grave is created may itself be a war crime. 

263. The Cotwnission believes that it is particularly significant to investigate 
mass graves in order to help resolve the problem of missing persons. 72/ This 
is of vital importance to their f amilies. Investigations of mass graves will 
also help to discover evidence of criminality» 

264. If the existence of the numerous mass graves situated at or near identified 
detention facilities were to be confirmed, such confirmation would be relevant 
to the inquiry into -ethnic cleansing" (see paras. 129-150). 

H. Investiaation of o rava aites at OvCara near Vukovar 
fUWPA. Sector gast, Croatia^ T^a/ 

265. As indicated in its first and second Interim reports, the Commission had 
been intending for some time to conduct an investigation of the Ovöara grave 
Site in Sector East, which was reported to contain the bodies of about 200 
persons who were in the Vukovar Hospital in November 1991 when the city feil to 
Serb forces* The investigation would involve the exhumation of the bodies 
contained in the mass grave site, the collection of physical evidence at the 
grave Site, the transport of the bodies to a morgue facility, the autopsy 
examination of the bodies to establish Identification and the cause/manner of 
death and, in time, the collection of other types of evidence, including 
testimonial evidence, so that criminal responsibility for the killings related 
to the bodies in the grave could be determined. 

266. The Coimnission faced some logist ical difficulties in preparing for the 
OvCara investigation. However, all of these difficulties were eventually 
overcome and the Commission obtained the assistance of an international taam of 
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k 

V 



267. Th« only obstacl« which the Coimnission could not overcom« was political - 
obtaining viabl« assurances and permiaaions from th« political authoritiaa 
Controlling tha 



268. In an effort to obtain tha nacaasary political aasurancea, tha Commiaaion 
mada viaits to Vukovar in March, July, Octobar and Novambar; to Beigrade in 
March and April; and to Knin in May, September and Octobar. In addition, the 
Comniaaion exchanged numeroua piecea of correapondence with varioua authorities 
in theae locationa« The approach taken by the Comniaaion waa that, aa a matter 
of balance, the Commiaaion would attempt to excavate a aecond maaa grave site in 
Sector Weat that waa believed to contain Serb victime at eaaentially the same 
time aa it conducted the Ovöara excavation. The Commiaaion and the local 
authoritiee at varioua timea alao diacuaaed iaauea, including the location for 
poat mortem examinationa, the preaence of obaervera during the inveatigation, 
and the concerna of -Serb Republic of Krajina" officiala about the use of Sector 
Weat by Croatian authoritiea aa a aite for radioactive waate diapoaal. 

269. Following a meeting at Knin with the adminiatration of the '•Serb Republic 
of Krajina- on 5 September 1993, it waa the view of the Commiaaion that it had 
obtained the neceaaary approvala in writing to conduct the Ovöara excavation. 
Aa a matter of balance, while the bodiea at Ovöara wäre being exhumed and an 
autopay examination waa being conducted to eatabliah Identification and the 
cauae/manner of death, a preliminary site survey would be conducted at a 
preaumed maaa graveaite in the Pakraöka Poljana/Marino Selo area in Sector Weat 
and a preliminary radiological aurvey would alao be conducted in Sector Weat. 
On the baais of thia underatanding, the Commiaaion decided to send an 
inveatigative miaaion to Zagreb in early October and to Sectora Weat and Eaat 
during the week of 17 October. 

270. On 14 and 15 October, the Commiaaion met with the adminiatration of the 
-Serb Republic of Krajina- at Knin to obtain additional written authorization to 
proceed with the OvCara excavation and to addreaa newly raiaed concerna of the 
-Serb Republic of Krajina- about the location of the morgue facility. The 
authoritiea of the -Serb Republic of Krajina- inaiated that poat-mortem 
examinationa could not be conducted in Croatia. Although the Commiaaion had 
intended to have the poat -mortem examinationa conducted at Zagreb, the 
Commiaaion agreed to endeavour to locate a place for theae examinationa which 
would be acceptable to the adminiatration of the -Serb Republic of Krajina-. 

The Commiaaion alao agreed to the preaence of obaervera of the -Serb Republic of 
Krajina- at the aitea during the inveatigationa. On receipt of thia aasurance, 
the adminiatration of the -Serb Republic of Krajina- iaaued aeveral documenta 
providing Cooperation and authorizing the Commiaaion to proceed with the 
inveat iget ion • 

271. The teama wäre deployed from Zagreb to Sector Eaat on 19 October. On 
arrival in Sector Eaat on the evening of 19 October, the on-aite rapporteur waa 
informed by ÜNPROPOR that a meeting with Sector Eaat adminiatration of the -Serb 
Republic of Krajina-, in particular Colonel Milanovic, waa a condition precedent 
to commencement of the excavation. In the Interim, and with the acquieacence of 
the UNPROFOR Sector Commander, the varioua teama went to the OvCara aite on 20 
and 21 October to conduct a aecond aite aurvey, which would not involve any 
excavation. The aite had been aecured by UNPROFOR aince it waa originally 



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id.ntifi«d in D.c««b.r 1992. During th« .it. .urv.y, th. .it. wa. ch.ck.d for 
inlxplod-d ordln.nc. by UNPROFOB, bru.h w.. cl..r.d, th. ar.. -" «^'y-V-f^^" 
d^t^lu with a rang. o£ .quip«..nt, and . c.rtain amount of phy.ical .vid.nc, 
including 8p«nt cartridg. ca... and sotn. cloth, wa. r.cover.d. 

272 On 22 Octob.r, th. r.pr.a.ntatives of th. Conmis.Lon m.t with 
Colon.1 Milanovic in Brdut and was inform.d that, notwithstanding th. various 
aoorovalB r.c.iv.d at Knin on 14 and 15 Octob.r, th. Parliamant of th. S.rb 
R«ublic of Krajina" had talcn a d.ci.ion on 21 Octob.r r.quiring the Commisaion 
to pctpon. all activity at OvCara until a political «olution was found to the 
Situation in th« fortnsr Yugo.lavia. Pollowing th. m..ting, all peraonn.l wer. 
withdrawn frora th. Ovöara sit. to th.ir accoimnodations at Klissa and Erdut. 
Aft.r consultation with ÜNPROPOR, it wa. d.cid«d that any att.mpt to continue 
th. proj.ct aft.r this d.cision by th. -local administration" would expose th« 
proj.ct p.rsonn.1 and ÜNPROPOR p.raonn.1 to an excsstv. d.gre. of risk. 

273. Although .ffort. w.r. mad. to rehabilitat« th. OvCara proj.ct in th. 
ensuing w..ks, including a Conunission m..ting with Mr. Bjegovic, Prime Minister 
of th. -S.rb R.public of Krajina" at Knin on 30 Octobar, non. of these efforts 
wäre successful. No on. affiliated with th. Conmission has raturned to th. 
Sit., Wh ich r.mains und.r ÜNPROPOR protection, sine. 22 October. 

274 m Order to mak. the most effective use of project personnel, once it 
beclme apparent by midday on 24 October that there.would be no rapid change of 
Position on the part of the local administration, project personnel were shifted 
over a period of time from Sector East to Sector West and elsewhere. The last 
Person and the last piece of equipment was out of Sector East by 30 October. 
Sufficient material and personnel resources were, however, retained in Croatia 
until about 10 November so that the OvCara excavation could be conducted if 
adequate political approval was obtained. After 10 November, the onset of cold 
weather made the project impracticable before the spring of 1994. Appropriate 
political approval was not obtained before 10 November. 

275 On 17 November 1993, the representatives of the Commission met with 
Mr.*Had*ic, President of the "Serb Republic of Krajina", at his initiative at 
Erdut. Also at the meeting were Mr. Niksic, "Vice-Chairman of the Regional 
Council", and Colonel Milanovic, Deputy Minister of Defence of the "Serb 
Republic of Krajina-. Note no. 1-234-93, dated 16 November, was P""nt«J ^o 
the on-sit« rapporteur, under the .ignature of Mr. Hadzic, stating that the 
following decisions had been reached: 

(a) Th. authoritias of the "Serb Republic of Krajina" agreed to cooperate 
in and give their approval for the excavations on the site of OvCara, in the 
municipality of Vukovar; 

(b) The excavation activittes could Start in March or April the following 
year, when the weather conditions improved; 

(c) The authorities of the "Serb Republic of Krajina" would appoint one 
member to observe the activities of the Commission; 



<' 



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(d) Th« "President of the RepubliC, Mr. Hadzic, had approved the 
above-stated items and was willing to cooperate fully with the Comnission. 

276. Owing to weather conditions, the Conmiseion had to postpone resuroption of 
the investigation until the spring of 1994. In eo far ae the Coimniesion' s work 
was terminated as of 30 April, all relevant documents for this investigation 
have now been passed on to the Office of the Prosecutor for the International 
Tribunal. The site remains under UNPROPOR protection, but no criminal 
investigation related to this mass grave excavation has been conducted to date. 



I- Investiaation of arave sites near PakraCka Poliana 
rUWPA. Sector West. Croatia^ SSI/ 

277. During the March 1993 reconnaissance mission, the Commission became aware 
of the need to conduct a second mass grave excavation at a site, which would 
probably contain Serb bodies, at essentially the same tiine as the OvCara 
excavation, which would probably be found to contain Croatian bodies. At the 
same time, it was informed of a number of probable clandestine grave Sites near 
Pakraöka Pol Jana in Sector West, which were believed to contain a large number 
of Serb bodies. For reasons related to the security of the sites and of 
Potential witnesses, the Commission avoided visiting the Sites at that time. 

278. In October 1993, when the Commission was in a position to conduct a mass 
grave excavation, it decided to have Physicians for Human Rights conduct a 
preliminary site survey at PakraCka Poljana to confirm the existence of a mass 
grave. At the time this decision was taken, it was considered that the PakraCka 
Pol Jana location was the location in the United Nations protected areas (UNPAs) 
most likely to be the site of a mass grave containing Serb victime. 

279. From 20 October to 9 November 1993, the Commission deployed teams to the 
area. The numbers of members of each group varied over time, as persons were 
shifted from the OvCara site to PakraCka Poljana. 

280. The Commission received a particularly high level of support from UNPROFOR 
during this investigation. 

281. The forensic report on this preliminary site investigation reached the 
following conclusions: 

(a) Nineteen individuals (16 males, 3 females) were buried in nine 
separate gravee in a field south of PakraCka Poljana. The graves were shallow 
and appeared to have been dug by hand. Leaves found in the bottom of some 
graves and the clothing on several individuals, including heavy jackets and 
Sweaters, suggests that burials took place in the autumn or early winter; 

(b) The area around the graves was used as an execution site. Expended 
.22-calibre, .2S-calibre, 9mm-calibre and 7.62 x 39rom-calibre cartridge cases 
were found adjacent to six of the graves. Expended rounds were also found near 
some of the bodies or recovered from clothing. Five of the bodies had their 
hands tied with rope. Other bodies had their hands together, sometimes in 
extremely awkward positions, but no rope was found during the excavations. It 



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is po««ibl« thAt th« band« had bMn bound but that th« binding was mad« of a 
natural fibr« that diaint«grat«d. Fifteen of th# bodiea exhibited gunshot 
wounds to th« h«ad, two had blunt head trauma, on« had roultipl« gunahot wounda 
to tho arm and leg and on« had masaiva head trauma; 

(c) The nine graves are clandeatine burial», The isolated location of the 
gravea suggeate that the executionera intended to bury their victima secretly. 
The gravea were within a ahort diatance of a road that could be acceaaed by a 
truck or other vehicle. The gravea were alao adjacent to large, woody 
Vegetation that acreened the area from at leaat one direction; 

(d) There wae no indication that the gravea had been diaturbed since the 
time of internment« 

282. Although the Pakraöka Pol Jana alte waa believed to be the alte of maaa 
gravea containing up to 1,700 bodiea, the alte waa examined with conaiderable 
care. Seventy-one holea were dug at the alte. The very firmly based conclusion 
waa reached that thia belief waa erroneoua. 

283. On 9 November 1993, the 19 exhumed bodiea were placed in body baga together 
with preaervative cheraicala and reburied at a aite imroediately adjacent to an 
ÜNPROPOR obeervation poat. Before thia atep waa taken, aome conaideration waa 
given to the poaaibility of conducting an autopay examination of the bodiea to 
eatabliah Identification and the cauae/manner of death and to the poaaibility of 
gathering aome additional ante-mortere Information by interviewing selected 
peraone in the area. Theae activitiea were not undertaken owing to previoualy 
expreaaed "Serb Republic of Krajina" concerna that poat-mortema not be done in 
Croatia on account of the difficulty of obtaining a auitable morgue facility. 
Alao, time and peraonnel reaourcea would not permit the intenaive effort 
required to conduct a criminal inveatigation and to gather all available 
^yita-mortero Information. 

284. Reaponaibility for obtaining additional Information and for continuing thia 
inveatigation hae now been paaaed to the Office of the Proaecutor of the 
International Tribunal. 



J. Deatruction of 

285. In determining the extent of the deatruction of cultural property in the 
former Yugoelavia, the Commiaaion proceeded under ita overall plan of work and 
made uae more particularly of ita databaae and reporta by international 
Organization«, including the United Nationa Educational, Scientific and Cultural 
Organization (ÜNBSCO), the Parliamentary Aaaembly of the Council of Europe and 
other intergovernmental aourcea and non-governmental organizationa. 

286. The Coraniaaion haa received extenaive Information on deatruction of 
cultural property, but it waa not in a poaition to inveatigate all theae 
allegationa. In particular, it could not verify allegation« that all Catholic 
churche« and moaque« in Serb-occupied territoriea of Boania had been 
ayatematically deatroyed or damaged. Since the Commiaaion could not conaider. 



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let alon« investigate, all allegations of damage to cultural prop«rty, gJL/ it 
has 8«lttct«d tvro •xamples which ar« typical of such breach«s. 

287. The two examples choaen by the Cormnisaion were the battle of Dubrovnik ( 
paras. 298-301) and the deatruction of the Moatar Bridge. 

288* In the autumn of 1991, the region of Dubrovnik was surrounded and besieged 
by the Yugoelav National Army. After a few weeke, Dubrovnik itself was cut off 
by land and aea by the forcee of the former yugoslavia. Thia Situation 
continued up to the autumn of 1992, when the district of Dubrovnik was 
recognized as forming part of the Republic of Croatia. The military occupation 
of the district of Dubrovnik captured international attention because of the 
cultural and historical significance of the region and the town. Dubrovnik is 
now known as an old town which has suffered great daxnage as a result of the 
Serbian attacks. In 1979, the old tovm had bs«n included in UNESCO 's list of 
the World 's cultural heritage. 

289. The attacks on Dubrovnik started with the Serbian paramilitary forces, 
supported by Yugoslavia's regulär army, in June and August 1991. On 

1 October 1991 the Yugoslav Army invaded the district of Dubrovnik and laid 
siege to the town. It may be affirmed that there was virtually no defence of 
Dubrovnik and the surrounding area against the Yugoslav forces. Thus the 
destruction could on no account be justified as a military necessity. 

290. The siege of Dubrovnik lasted from October until December. The first 
shelling began on 1 October and continued sporadically until 24 October 1991. 
After a Short lull, the shelling started up again on 30 October and continued 
into December. The shelling on 6 December 1991 was especially intensive. The 
shelling was selective and deliberately aimed at the buildings in the old town 
and there is no doubt that the destruction of cultural property was intentional. 
However, the people doing the firing did not only hit the old town. The new 
town was also hit. 



291. According to estimates, 55.9 per cent of the buildings of the old town were 
affected, either by fires or by damage to the structures and special elements or 
to the facades and roofs. Several palaces had their roofs either destroyed or 
burned, including the Festival Palace, whose archives were completely destroyed, 
and a number of monuments whose roofs caved in. Other examples are St. Blaise's 
Church, the Pranciscan Cathedral and Convent, the Dominican Convent, St. Clair's 
Convent and the Fountain of Onofrio; and, of course, there was the destruction 
of the roofs of the old town. In this respect, the local authorities list 336 
direct hits and 254 cases of partial destruction of roofs by shell fragments. 

292. From the UNESCO experts' assessment, the total damaged roof areas can be 
estimated at 56,747 m^. To this visible damage, the experts of the Commission 
have added damage result ing from vibrations, which may appear later, as well as 
the damage which simply could not be detected at the time the UNESCO experts 
were carrying out their work. 

293. Thus, in respect of the Statute of the International Tribunal, the offences 
in Dubrovnik can be said to concern extensive destruction and appropriation of 
property not justified by military necessity and seizure or destruction and 



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- ^« n-iioLou. Institution« d«dic«t«d to ch.rity, «ducation, th« arta and 
r:«:.. .; ii?t .: ZlorLc r^n^n.. and arti.tic and scientific worK.. 

294. The conc.pt of milit.ry objectiv. .hould al.o »'•J°"-^^-"f j" ff ^eem. 
con;ection in order to shed light on th. crime, committed. ^f «f ;„i^ """■ 

,^Z ^1— r that thi. d..truction of cultural property did not in any way 
SitJibi" to Jhe iilitlry .ction and could in no way b. -"-<^-"^ "-,;""^ ^" 
contriDute t oblective. pur.ued. Nor i. th.r. any way that th. 

U^tritfr: : h:.i :VZ.c.n L.i« to h.v. b..« utiU^lng th. -nu..nt. for 
^lUary purpo.... In th. Co^ni-ion'. vi.w, oth.r <=°"<=-P^-/"/f i^"" " 
IiUt«y objntiv.. .hould b. appli.d: th. conc.pt. of und.fended plac. or 
obJ.ct, of proportionality and of n.utrality. 

•295 At 10.16 a.m. on 9 Nov«nb.r 1993, Mo.t.r Bridg. wa. '^••"«f ^- J" '^^^ 

295. *2/ Ik- Tn-tttut. for th. Protection of th. Historie and Natural 
C^lt^ra "Siritlgirf Bo-^ii Ind ;.rz.govina ha. .ccu..d th. Croatian D.fenc. 
cultural """*^* . ^ in » i.tt.r to UNBSCO dat.d 10 Novembar 1993. 
Jhi'JitJir ^ oth« SocJll^nti attach.d to th. pr...nt r.port <i"«^''- f « ^ 
J^iJororth. bridg. w^^^^^^^^^ 

Str^ot a'p^arin S. SJs^ ulr i::.v^ thi. bridg. wa. well .nown to th. 

?!!i«S^rthi r.gion, wh.th.r S.rbi.n, Croatian or Mu.lim. Mor.over, the 
Äri« i .5^01 oi ;;.nia and H.rzegovina which connected the gap b.tw.en 
thi S^U« tnd^oat co««nunitie.. It embodied the link, which un.ted these 
the M"»^^« *"° ^ religious difference. and th. circum.tances of the 

Tr^i" iir ' The°ri c'a^'be'niloubt , however, that it wa. of greater value to 
the Muslims. 

Company) • 

297 Th. .». erlmin.1 ch.r.et.rl..tlon which .ppU.. to th. b.ttl. of Dubrovni» 

ni; i^i!.*rto th. ...tn.ction o, »»«" "i;i'-,:;i'::.r.j^;°.i: ^^„i«"!;. 

command re.pon.ibility. 



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K. Dubrovnik ifiytioation 83 / 

298. The Commission sent an investigativ« teain of Canadian and Norwegian 
military lawyers and a Franch art hiatorian to Dubrovnik for tha period 
20 Octobar to 4 November 1993. The objective of the inveatigation was to 
prepare a law of armed conflict study of the battle of Dubrovnik which would 
attempt, among other things: 

(a) To determine whether and when indiscrixninate attacks or deliberate 
attacka on civilian persona or civilian objects occurred; 

(b) To quantify the loss of civilian life, injury to civilian persona, and 
damage to civilian property, including cultural property; 

(c) To attribute responsibility for apparent violations of the law of 
armed conflict. 

299. On the basis of this inveatigation, the Commission finde that at least 82, 
and possibly as many as 88, civilians were killed as a result of JNA military 
Operations in the district of Dubrovnik during the period from September 1991 
until December 1992, inclusive, and that most of these persons were killed in 
1991. Thirteen civilians were killed during the St. Nicholas Day bombardment of 
6 December 1991. The Institute for the Restoration of Dubrovnik haa completed a 
study of damage to houaing in the diatrict of Dubrovnik which the Commission 
accepta. The Institute estimatea that the cost of reconstructing housing alone 
will be DM 69,000,000, while the coat of complete reinatallation of familiea 
will be DM 480,000,000 (prices on 31 December 1990). Detailed reporta on damage 
to cultural property have been prepared by UNESCO, the Inatitute for the 
Protection of Cultural Monuments and the Natural Environment of Dubrovnik and 
the Parliamentary Assembly of the Council of Europe which the Commission has 
accepted as a basis for their investigation. These reports indicate in 
particular that a substantial amount of daunage waa caused to cultural property 
in the old town of Dubrovnik, mostly during the St. Nicholas Day bombardment. 

300. It ia the finding of the Commiasion that the St. Nicholas Day bombardment 
of 6 December 1991 was a deliberate attack on civilian peraons and on civilian 
objecta, including cultural property. It ia the finding of the Commission that 
it ia poaaible to determine the preciae identity and atatua of peraons killed or 
injured during the bombardment and to confirm the extent of civilian property 
damaged during the bombardment, the unit reaponaible for the bombardment, the 
identity of the unit Commander and the identity and position in the chain of 
command of more senior officers responsible for the bombardment. 

301. It is the view of the Commission that it ia poaaible to develop prima facie 
cases directed against one or more officers responsible for the St. Nicholas Day 
bombardment and that it may be possible to develop cases concerning other 
incidents in the district of Dubrovnik. 



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t. p„H<»loale>l >nv«.fcta*tion iimPh. S^CtOff Wffft) M/ 

302 A. th« adminl-tration of th. "S.rb R.public of Krajina" had .xpr...ed 
con;.rn about th. u.. of .it.. in S.ctor W..t for radioactiv. wa.t. d.spo.al, 
tSi C^i..ion agr..d to s.nd . t.a« of .xpert. to conduct a pr.Liminary 
riSioJ^tcll lurviy in th. S.ctor. Information providad by th. admxnistration 
of tS. -S.rb R.public of Krajina- about th. radioactiv. wa.t. -xt.. wa. 
«tri^-ly -P«.S. Two nucUar biological ch«nical .p.ciali.t. war. deployed to 
S.ctor W..t with on. (N.th.rland.) ünitad Nation, .upport d.tachm.nt. 

303. Th. .p.ciali.t. r.ach.d th. following conclu.ion.: 

/«) Th. nucl.ar activity m.a.ur.d in S.ctor W..t prov.d not to b. any 
hiah.r than th. normal background radiation. In addition, .xamination of fw. 
;i?j"alpt;. provad that th. quantity of radioactiv. mat.rial. in th. samples 
^ould Ji con.id.r.d a. normal. Th... radioactiv. mat.rial. contribut. to th. 
level of background radiation; 

(b) Ther« were no detectable signs of physical presence of any nuclear 
wast« in th« arsas searchod. 



u 



304 Th. inv..tigation wa. as thorough ai tim. would p.rmit, and a wide rang, of 
poa.ibl. durap «it.. w.r. visit.d with uniform n.gativ. r..ults. 

305 How.v.r. in March and April 1994, th. admini.tration of th. "S.rb R.public 
of Krajina- providad n.w Information on th. location of po.aible waste dump 
•it... A. th. commia.ion wa. inform.d that it had to t.rminat. it. worJc by 

30 April 1994, this additional Information wa. pa...d to th. Offic. of th. 
Pros.cutor of th. Int.rnational Tribunal. 

V. GENERAL CONCLÜSIONS AND RBCOMMENDATIONS 

306. Th. di. int.gr ation of a faderal Stat., a. in th. ca.. of th. form.r 
yugo.lavia, i. oft.n at fir.t a civil conflict. Howav.r, a. th. r..p.ctiv. 
Stat.« of Slov.nia, Croatia and Boania and H.r2.govina daclarad th.ir 
ind.p.nd.nc., r.c.iv.d int.rnational r.cognition and war. admittad to m.mb.r8hip 
in tSI Onitl; Nation., th. conflict with r..p.ct to .ach of th.8. States becam. 
an intarnattonal conflict. fiS/ Th. fir.t int.rim r.port .tatad: 

-45 Th. Conwii..ion i. of th. opinion, how.v.r, that th. character and 
compLxity of th. armad conflict. conc.rn.d, combin.d with th. web of 
agraMwnt. on humanitarian isiua. th. parti.. hav. conclud.d among 
th««..lv.., ju.tify an approach wh.r.by it applia. th. law »PPj"»^^« ;" 
int.rnational armad conflict. to th. .ntir.ty of th. arm.d conflxcts in the 
territory of th. form.r Yugo.lavia.- 

307 How.v.r. th. pr.ci.. tim. at which th. diff.r.nt «tag., of thi. multi-party 
conflict b.cam. or c.a.*d to b. a conflict of an int.rnational charact.r must be 
determined by a r.vi.w of Lgally relevant fact.. Thi. determi-nation must be 
mid. by th. Int.rnational Tribunal. In th. .v.nt th. Tribunal conclud.. that 
th. conflict i. of an int.rnational charact.r, th. -grav. br.ach.." provisiona 

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of th« Gmnmvm Conventions of 12 Auguet 1949 «hall apply, as w#ll as Additional 
Protocol I of 1977, as do other norm« of international humanitär ian law. With 
reapect to other perioda, common articla 3 of tha 1949 Ganava Convantiona and 
Protocol II apply, aa do othar norma of international humanitarian law. 

308. The Commiaaion emphaaizea that the conventional and cuatomary international 
law norme on crimea against humanity and genocide apply to the entirety of thia 
conflict. Thia ia the case irreapective of whether the conflict is determined 
to be of an international or non-international character. 

309. The Commiaaion also concura with reapect to the proviaiona of applicable 
law contained in the atatute of the International Tribunal. Indeed, in ita 
firat Interim report (paraa. 36-46), the Commiaaion had taken the poaition which 
the Security Council later adopted in reaolution 827 (1993). The Commission 
recognixea, however, that Protocola I and II are alao part of the applicable 
law. 

310. Reports received and investigationa conducted by the Cormnission indicate 
that the level of victimization in thia conflict haa been high. The crimea 
committed have been particularly brutal and ferocioua in their execution. 8^/ 
The Commission haa not been able to verify each report; however, the magnitude 
of victimiration ia clearly enormoua. fi7/ 

311. The Commiaaion finde significant evidence of and Information about the 
commission of grave breachea of the Geneva Convantiona and other violations of 
international humanitarian law which have been communicated to the Office of the 
Proaecutor of the International Tribunal. 

312. Some of the concluaiona relative to theae violationa are reflected in the 
present report, but for obvious reasons Information and evidence of a 
prosecutorial natura are not described herein. 

313. The practices of -ethnic cleansing- (see paraa. 129-150), sexual assault 
and rape (see paraa. 232-253 and 230) have been carried out by some of the 
parties so systematically that they strongly appear to be the product of a 
policy. The conaiatent failure to prevent the commiaaion of such crimes and the 
consistent failure to proaecute and puniah the perpetratora of theae crimea, 
clearly evidencea the exiatence of a policy by omiaaion. The conaequence of 
thia conclusion ia that comroand raaponaibility can be eatabliahed. 

314. Knowledge of theae grave breachea and violationa of international 
humanitarian law can reaaonably be inferred from conaiatent and repeated 
practices. 

315. The domestic criminal lawa of the former Socialiat Federal Republic of 
Yugoslavia and the criminal codea of all the republica formerly compriaing it 
contam prohibitions againat the violationa that have taken place. Therefore, 
there should be no doubt in anyona's mind that such acta aa murder, torture, 
rape, robbery and theft conatituta crimea. 

316. The observations set forth in paragrapha 110 to 127 on the military 
structure of the warring factiona and the stratagiea and tactica they employ may 



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r«vMl «n initial «tat« of confusion, raducing tha af factivanaaa of command and 
control. Thia apparant confusad atata of affaira continuad wall bayond tha 
initial atagaa of tha raapactiva conflicta- Thia laada to tha concluaion that 
tha axiatanca of aaparata military structuraa and tha multiplicity of unita may 
wall hava baan intandad by aoma of tha partiaa. Tha confusion may ba intended 
to parmit aanior military and political laadara to argua lack of knowladga of 
what waa happaning and inability to control euch unlawful conduct. 

317. Notwithatanding tha atrong faaling« of tha warring f actione concerning 
thair victimization, both hiatorical and contamporary argumanta concerning 
rapriaala (Bmm paraa. 63-66) and auparior ordara (aaa paraa. 61 and 62) do not 
conatituta a dafanca undar tha wall-aatabliahad law of intarnational armed 
conflict and undar tha national lawa of tha partiaa to tha conflict. 

318. Tha typa, ranga and duration of tha violationa daacribed in the present 
raport atrongly imply cormnand responaibility by commiaaion and Omission and also 
indicata that tha abaoluta dafanca of obadianca to auparior ordere is invalid 
and unfoundad (ibid.). Thia ia particularly evident in view of the loose 
coiwnand and control atructura where unlawful ordere could hava been disobeyed 
without individuale rieking pereonal härm. Indeed, eome did. A moral choice 
ueually exietad. Individual caeaa, however, will hava to ba judged on their 
reepactive merite in accordance with the etatuta of tha International Tribunal. 

319. The Commieeion ie ehocked by the high level of victimization and the manner 
in which theea crimea wäre committed, ae are the populatione of all the partiaa 
to the conflict. The difference ie that aach aide eeea only ite own 
victimization, and not what their aide hae done to othere. 

320. It ie particularly etriking to note the victime* high expectatione that 
thie Commieeion will eetablieh the truth and that the International Tribunal 
will provide juetica. All eidee expect thie. Thue, the conclueion ie 
ineecapable that peace in the future requiree juetica, and that juetice Starts 
with eetabliehing the truth. SS/ The Commieeion would be remiee if it did not 
emphaeize the high expectation of juetice conveyed by the parties to the 
conflict, ae well ae by victime, intergovernmental Organizationen 
non-governmental organizatione, the media and world public opinion. 
Coneequently, the International Tribunal muet be given the neceeeary resourcee 
and eupport to meet theea expectatione and accomplieh ite taek. Furthermore, 
populär expectatione of a new world order baeed on the international rule of law 
require no leaa than affective and permanent inetitutione of international 
juetice. The International Tribunal for the Proeecution of Pereone Responsible 
for Serioue Violation of International Humanitarian Law Committed in the 
Territory of the Former Yugoelavia eince 1991 muet, therefore, be given the 
opportunity to produce the momentum for thie future evolution. 

321. The Commieeion requeete the Secretary-General to publieh thie report and 
ite annexee in their entirety and to give them the wideet possible dissemination 
in order to inform Member States and the intereeted public. 



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•s I 



Notes 



X,/ Sessions were held on the following datesi 



First Session 
Second Session 
Third Session 
Fourth Session 
Fifth Session 
Sixth Session 
Seventh Session 
Eighth Session 
Ninth Session 
Tenth Session 
Eleventh Session 
Twelfth Session 



4-5 November 1992 
14-16 December 1992 
25-26 January 1993 
1-3 March 1993 
24-25 May 1993 
13-14 July 1993 
30-31 August 1993 
27 October 1993 
14-15 December 1993 
11-12 January 1994 
15-16 February 1994 
11-15 April 1994 



All the sessions, except the first one, which was convened in New York, have 
been held at Geneva. 



2/ The funding for these contributed Services was provided by DePaul 
University and grants to the University from the Open Society Fund and the 
John D. and Catherine T* MacArthur Foundation. 

3/ On 29 August 1993, in response to the Secretary-General * s req[uest, the 
Coromission submitted a non-paper indicating that it proposed to end its work on 
31 July 1994. The Coromission* s second interim report, submitted by the 
Secretary-General to the Security Council on 5 October 1993, reflected a plan of 
action based on a 31 July 1994 schedule. 

fi/ The contributions received were as follows: 



Countrv 


Ampqnt 




(US$) 


Austria 


20 000 


Canada 


237 869 


Czech Republic 


1 000 


Denmark 


15 201 


Germany 


16 000 


Hungary 


3 000 


Iceland 


500 


Liechtenstein 


3 184 


Micronesia 


300 


Morocco 


5 000 


Netherlands 


260 152 


New Zealand 


53 492 


Norway 


49 978 


Sweden 


94 955 


Switzerland 


50 000 


Turkey 


10 000 


United States of America 


500 000 


TOTAL 


1 320 631 



/... 



s/1994/674 
English 
Pag« 74 



Not«g (continuttd) 

5/ B.C.U.. of th. positiv. b*l.nc. in th. Trust Fund at th. conclu.ion of 
th« Coäni.sion-. work, th« Con«.i.-ion urg.s the S.cretary-General to eeek th« 
Contr^ir'i authoriz.tion to u.« th«.« fund. for th« publicat.on of th« 
ann«x«* . 

6/ S«« G«n«va Conv«ntion for th« Am«lioration of th« Condition of th« 
„ ^-J «nd sick in Ann«d Forc«. in th« ri«ld (12 Augu.t 1949); Geneva 

(12 »u,u5t 19«), "•""< -tl°- Tr..tv 5.rUl. »°l- ". "<>•• »'0 »"• 

7/ 1977 protoeol Ad<litloii.l to th. o.n.va coi.».i>lioi.. of 12 August 1949, 
.„d l..r.tln, to th. prot.ctlon of vlcti«. of t»t.rn.tloh.l »™.d conflict. 
(Protoeol I). 

8/ 1977 Protoeol Additional to the Geneva Conventions of 12 August 1949, 
and Relating to the Protection of Victime of Non-International Armed Conflicts 
(Protoeol II) • * 

9/ Convention for the Protection of Cultural Property in the Event of 
Armed Jonflict, done at The Hague on 14 May 1954. t/nit^a HftttPH» TgeftW g9gt?? > 
vol. 249, No. 1-3511. 

la/ Se« also nffjgj^I Re r orrfa of the General A8gen>)?lY, FJ^th gg^sjgn, 
sunnlament No. 12 (A/1316). 

11/ U.S. V. von Weizsaecker (Miniatrie. Case), H m^l9 9f W^y Ciriinm;? 
^.s^.'ri y,^ »,„^«mh«ra ni^^t»r^f Trib u n»! ■ under Control Council Tr<^w \f<f. 19 ^1; $U 
?T949? ^theorlln Serie. ) . See also International Military Tribunal aitting at 
iiri!ierg "^r^ed in 7'^^^ -^ ^h, M>.or War Criminale befnre r^e iPmn.U^n.l 
f^^l^fcarv Tribunal (1949). 

i2/ General A.sembly resolution 260 (III) of 9 December 1948, 
annex, second and third preambular paragraph«. 

13/ From a Statement made by Mr. Moroxov, representative of the Union of 
Soviet Socialist Republics, on 19 April 1948 during the debate in the Ad Hoc 
Committ«« on Genocide (E/AC.25/SR. 12) . 

il/ se« Vienna Convention on the Law of Treaties, opened for signature on 
23 May 1969, Tin|,i-ad Nation? Tra^tv Series. vol. 1155, No. 1-18232. 



*• 



/... 



c 



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Not»« ( conti nu*d) 

IS/ SM Report on the queation of prevention and puniehment of the crime 
of genocide (E/CN. 4/Sub. 2/1985/6) , para. 29, which states: 

"•In parf would seem to imply a reaeonable «ignificant number, relative to 
the total of the group ae a whole, or eise a «ignificant section of a group 
■uch as it« leaderehip. ... coneideration« of both proportionate scale and 
of total numbers are relevant". 

XSl/ See annex II. 

12/ S/25704, annex, art. 2 (Grave breaches of the Geneva Conventions; 
art. 3 (Violation of the law and customs of war); art. 4 (Crime» against 
humanity); and art. 5 (Genocide). It is to be noted that under article 4, rape 
IS specifically listed even though the conventional and customary international 
law defining crimes against humanity does not list it specifically, but includes 
it as part of "other inhumane acta". 

15/ Violent crimes of a homosexual nature are not explicitly roentioned in 
international humanitarian law, but protection against rape and other sexual 
assaults is also applicable to men on the basis of equality and 
non-discrimination. 

12/ See the Convention on the Rights of the Child adopted by the General 
Assembly on 20 November 1989 (resolution 44/25), and the World Declaration on 
the Survival, Protection and Development of Children and Plan of Action for 
Implementing the World Declaration (A/45/625, annex). 

22/ In his commentary on article 5 of the Statute, the Secretary-General 
also seems to consider rape and other sexual assaults to be connected, as he 
States in the relevant part: "rape and other forme of sexual a.sault, including 
enforced Prostitution" (S/25704, para. 48). 

21/ Slovenia declared independence on 25 June 1991. Croatia's official 
date is 8 october 1991, though it first declared independence on 25 July 1991. 
The Bosnian Government declared independence on 6 March 1992. All three were 
admitted to membership in the United Nations on 22 May 1992. 

21/ The TOrs, however, existed in varying degrees of strength and 
readiness in the various republics. However, in most cases, they were poorly 
organized and staffed. Croatia organized a National Guard in April 1991 to 

fo^ir^Ni'JTT^''"'^*^ ''*''"" ^°"'- ^^* "«tional Guard consisted mostly of 
former JNA military personnel fröre Croatia. 

21/ It should be noted that the Army of Bosnia and Herzegovina includes 
among its ranks Croatian and Serbian personnel. Also, Croatian Defence Council 
unit. have on occasion either been part of Bosnian Government Operations or have 
fought alongside the Bosnian Government Forces against the Bosnian Serb Army 



/... 



m 



4> 



S/1994/674 
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V» 



Note» (continued) 

24/ Some of theee special forcee operate in localized areae, while othera 
move freely to different theatre« of Operation, frequently going from one State 
to another within the territory of the former Yugoslavia. Several of the 
special forces come from Serbia proper or have close links to Serbia, like 
Arkan's "Tigers", Seielj's -White Eagles", Captain Dragan's forces, Serb Falcons 
^fi^ p[ga Uucinic ^ and others- The Serbian People's Renewal Party also had a 
paramilitary Organization which interrelated with the White Eagles. Serbian 
special forces from Krajina, like "Martic's Militia", operate predominantly in 
the UNPAs (Croatia). Other special forces from Croatia are tied to the Croatian 
Government 's political and army figures. The HOS, which is reminiscent of the 
Second-World-War üstachi, for example, have been substantially absorbed into the 
Croatian Defence Council. The muiahidin operate independently of the Bosnian 
Government Army. Muslims from Bosnia and Herregovina formed paramilitary units 
in 1991. Two such Muslim groups are called Green Berets and the Patriot ic 
League of the People. All special forces have expatriate volunteers and some 
use foreign mercenaries. 

21/ Arkan's name is Zeljko Raznjatovic. Interpol has several outstanding 
Warrants for his arrest. The Warrants are for a variety of crimes, including 
bank robbery and investigations relating to political assassination in different 
European countries. He escaped from prison on bank robbery charges in the 
Netherlands and Sweden, where he is currently a wanted criminal. He is reputed 
to have been involved in murder for hire and to have connections with organized 
crime in Europe. His group has comraitted the entire ränge of crimes described 
above and in other parte of this report in Croatia and Bosnia and Herzegovina. 
The Tigers have used expatriates and mercenaries in the comroission of these 
crimes. JNA seems to arm and support the Tigers. The crimes committed by this 
group Started in 1991 in the war in Croatia. In 1992, Arkan was elected to the 
Kosovo "parliament" and ran in the 1994 parliamentary election of the Federal 
Republic of Yugoslavia in Beigrade. He has reportedly acquired substantial 
wealth in Sector East UNPA Croatia and in Beigrade which it is believed he 
derived from looting and contraband. 

26/ äefielj was a member of the parliament of the Federal Republic of 
Yugoslavia and leader of the ultra-nationalist Serbian Radical Party, which at 
one time held one third of the votes. Seielj's group follows the pre-Second- 
World-War group called the "Chetniks- who were known for their ultra-right wing 
monarchial politics. The Second-World-War Chetniks wore the special monarchial 
emblems with the double headed eagle. The present forces wear the same emblem 
and also call themselves Chetniks. Like Arkan's Tiger», Seielj's White Eagles 
committed the crime» referred to above and in other parte of this report. The 
group seems to have been armed and supported by JNA. Moreover, since mid-1993, 
the group is believed to have been under the direct control of JNA. The crimes 
committed by this group started in 1991 in the war in Croatia. During the 1994 
elections in Beigrade, äeSelj and President Slobodan Milosevic publicly traded 
charges of war crimes and hinted at knowledge of war crimes. This was publicly 
reported in the media of the Federal Republic of Yugoslavia in October 1993. It 
was also reported that President Milosevic ordered some forty associates of 
äeäelj to be prosecuted for rape, and other war crimes. It should also be noted 

/... 



*i 



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Note« (continu#d) 

that there wer« several groups of Chetniks that wer« not undar Sai#lj*s control. 
One such unit oparatad in tha Krajina area in Croatia in 1991, and than in 
Boania in 1992, whara th« group took poaition around Sarajevo in the fall« The 
unit ia under the comnand of Slavko Aleksic who operated under the corranand of 
the Boanian Serb Army. (See annex III .A for more detail regarding special 
forces. ) 



21/ 



Protocol 1/ 
Geneva Conventions Pc9t9g9i II 



Yugoslavia 

Slovenia 

Croatia 

Bosnia and Herzegovina 

28 / See annex IV. 



(Ratification) 
(Succession) 
(Succession) 
(Succession) 



21 April 1950 
26 March 1992 
11 May 1992 
31 December 1992 



11 June 1979 
26 March 1992 
11 May 1992 
31 December 1992 



29 / Serbian contemporary reality is particularly affected by history, 
which is vividly recalled, even when it goes as far back as the battle of Kosovo 
in 1389. But, more recent events arising out of the Second World War are even 
more significant in populär perception. 

2Q/ Several reports indicate that individual Serbe acted with courage and 
generosity in helping persons of other ethnic or religious groups to flee to 
safety or shield such persons from certain härm. But, in almost all these 
reports, it is clear that those concerned persons did so surreptitiously, thus 
emphasizing the Overall climate of fear and even terror inspired by those in 
control • 

21/ The arc goes from Gorazde at the bottom of the arc in the East 
(southeast) near the Drina River, then following the Drina River, north through 
such citiea as Zvornik, BrCko and in a northward direction to the areas of 
Bjelina, Derventa, Slavonski Brod, Banja Luka and Prijedor. The Drina River is 
the border between Bosnia and Sarbia. The arc continues along the Sava and 
Korenika Rivers, which are the boundaries with the Serb Krajina area, and 
follows along eastern and weatern Slavonia, which are also Serb-inhabited areas 
in Croatia« 

12/ This Strategie factor is evident in the attack against Gorazde in 
April 1994 and in the reports of military preparation for action in the Bröko 



12/ See, for exarople, E/CN. 4/1994/20. 

11/ However, even the involvement of public officials is frequently 
insufficient to ensure the safety of the forcefully removed civilian population 
Some of those evicted were forced to walk across minefields, which resulted in 
many deaths and severe injuries. Additionally, troops along the confrontation 
lines opened fire on the civilians who were pushed across the lines. 



/... 



9 \ 



t\ 



s/1994/674 
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Notea (continued) 

21/ Thia ia duo to tha fact thmt th« Sarb population ia notifiad in 
advanca of an attack. In aom« araaa, thia -athnic claanaing" ia dona by 
"special forcea- but frequantly, it ia th« vary civilian population which livaa 
alongaida tha Bosnian Mualixna in tha araaa daacribad abova who carry out or 
ahare in carrying out tha criminal practicaa rafarrad to alaawhara in thia 
report, particularly tha Prijador atudy, paraa. 151-182. 

M/ For exampla, tha Krjgnj g^ftb of Sanaki Moat (which ia charactariatic 
of othar diatricta) conaiatad of tha Mayor, tha Chairman of tha Sarbian 
Democratic Party, the laadar of tha Sarbian Damocratic Party and tha Comnandar 
of tha Sixth Krajina Brigade. 



21/ Tha avidanca obtainad in thia atudy ia tha moat apecific and datailed 
of all the Coimniaaion'a invaatigationa. It waa dalivered to tha Office of the 
Deputy Proaecutor of the International Tribunal along with other Coromiaaion 
material (see annex IV). 

M/ See, for exainple, a special atudy undertaken by the Bolzmann Inatitute 
of Human Righta (Auatria) for the Coromiaaion which evidencea thia concluaion. 
The study ia incorporated in annex IV. 

39/ Prior to the autumn of 1992, the Array of the -Boanian Serb Republic" 
waa referred to aa the "Boanian-Serb Army" (BSA). 

• 

4fl/ Command reaponaibility by commiaaion and by omiaaion exiata (aee 
paraa. 55-60), even though the policy of -ethnic cleanaing- ia carried out in a 
way which tenda to conceal the reaponaibility of auperiora in the political and 
military hierarchy through a structural Separation of army, militia, police and 
special forcea (diacuased in paraa. 110-128). Conaidering, however, the extent 
of theae violationa, the vaat araaa over which they occurred and the length of 
time over which they took place, it ia difficult to conceive how reaponaible 
commandara can Claim ignorance of the violationa that have occurred. 

41/ Thia converaion kept local JNA military peraonnel in Boania and 
Herzegovina, uaing aubatantially the aame equipment of the former JNA, and 
thereafter receiving aupport from Serbia acroaa the Drina River. 

4i/ Serbe have inhabited the Krajina area and eaatern and weatarn Slavonia 
since the late 1300a and have had a particular hiatoric praaence aince 1578. 
But during the Second World War, the üatachi regime killed a large number of 
Serbe, whoae numbera ranged from a low of 200,000 to a high of 700,000 moat of 
them from theae regiona. The memory of thia tragedy looma large over the 
apprehensiona of Serbe and ia a factor in the apiral of violence that took place 
in the region. 



/... 



'i 



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N9tfi (continu^d) 

43 / Most of Vukovar was razed to th« ground. On« incidsnt, in particular, 
will forever symbolizs thia tarribla battla. It ia th« maaa grava at OvCara, 
where soma 200 plua Croata ara believad to hava baan takan by Sarba from the 
Vukovar Hospital and auraoiarily axacutad and than laft in a ahallow maaa grava. 
Tha CoRvniaaion conductad savaral raconnaiaaanca miaaiona to tha araaa, 
discovarad tha axiatanca of a larga numbar of bodiaa, collactad soma evidence 
and startad to axhuma tha bodiaa in Octobar 1993. Rapraaantativaa of the '*local 
Sarbian adminiatration** pravantad tha Coimniaaion frora continuing ita work. Tha 
Cofimiaaion could not undartaka tha Ovöara and othar maaa gravaa investigations. 
Howavar, bafora it waa obligad to tarminata ita work, all of tha relevant 
evidence waa communicated to the Office of the Proaecutor of the International 
Tribunal. (For more detail see paraa. 265-276 and annexea X, X.A and X.B.) 

11/ They ara related to the so-callad "Herseg-Boana Rapublic**. Under the 
February 1994 Waahington Agreement between leadera of Boania and Herzegovina and 
Croatia and Croat leadera from Boania and Herzegovina who are part of the so- 
called '*Republic of Herzeg-Boana**, a faderation ia to be developed within 
Bosnia and Herzegovina. This waa furthared by the Agreeoient reached between 
these two groups on 18 March 1994 and signala a poaitive tranaformation, 
hopefully leading to peace between the partiaa« 

!£/ Even though that conflict ended in January 1992, violance haa 
continued since then. The evidence secured by the Commission, along v?ith other 
evidence obtained frora UNPROFOR concerning the deatruction of tha village of 
Medak in Octobar 1993, waa delivered to the Office of the Proaecutor of the 
International Tribunal. On 19 March 1994, another agreament waa reached between 
the Republic of Croatia and the ao-callad "Serb Republic of Krajina". (For the 
Medak study see annex VII.) 

4g/ This is evidenced by the Croatian Defence Council and Croatian police 
attacka on tha villagea of Ahmici-Vitez and Stupni Do in 1993. Theae attacka 
would be characterized aa repreaenting a certain policy. Tha firat waa 
inveatigated by tha European Community Monitoring Miaaion and Mr. Mazowiecki, 
the Special Rapporteur of the Commiaaion on Human Righta. Tha aacond waa 
inveatigated by UNPROFOR. All evidence waa delivered to the Office of the 
Prosecutor of the International Tribunal. 



47 / See annex V. 

4g/ See annex VI. The atudy on the bettle and aiage of Sarajevo presents 
a daily chronology, documenting events in the city from 5 April 1992 to 
28 February 1994. The chronology is based on incidents reported in the 
database, other source matariala and media raporta. It detaila, in so far as 
Information is available: daily combat and ahelling activity; specific 
identified targets hit; known damage to targata hit; aniping activity; and total 
caaualtiaa reported. The chronology alao containa a narrative of daily military 
activitiea and local and international eventa ralating to the bettle and siege. 
The purpoae of the chronology ia to describe tha eventa and consequences of the 
battle and siege of Sarajevo and to determine patterna of violationa of 
humanitarian law. 

/... 



s/1994/674 
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Nof » (continued) 

42/ There are indication« that early in th« sieg« and until lato May 1992, 
the Yugoslav Army (JNA) waa involved in tho fighting in Sarajavo. Boanian 
officiala frequently charged that JNA tanka joinad Boanian-Sarb forcaa in 
barragea, and that tha JNA providad tha Boanian-Sarb forcaa with logiatical 
Support and protection. In April 1992, tha Oovarnmant of Bosnia and Herzegovina 
requested the withdrawal of all JNA forcaa from ita aoil. The Government of the 
Federal Republic of Yugoalavia announced that it would withdraw from Boania and 
Herzegovina troopa that wäre not reaidenta of the Republic* Since moat of the 
JNA troopa in Boania and Herzegovina wäre Boanian Serbe, the withdrawal of other 
troopa had limited impact on the Serbien forcea, aa an eatimated 80,000 Yugoalav 
soldiera were tranaferred with their equipment to the **Serb Republic of Boania**. 

!£/ It has been obaerved that the beaieging forcea have often increaaed 
their artillery attacka on Boanian Government-controlled areaa of the city prior 
to and during international peace conferencea or other negotiationa. One 
explanation for thia increaaed ahelling activity ia that the beaieging forcea 
are using the aiege of Sarajevo preaumably aa a meana to politically preaaure 
the Government of Boania and Herzegovina to agree to terma which are important 
to the Boanian Serbe. 

11/ It haa been obaerved that the beaieging forcea have on many occaaiona 
increaaed ahell fire in reaction to atatementa roade by local political leadera. 
It haa alao been obaerved that the heaieging forcea aeen to calculate eventa and 
the riaka that they can take in relation to threata by third-party Governmenta 
and organizationa. In thia regard, when threata by third-party Governmenta or 
organizationa are not perceived aa iramediate, the beaieging forcea increaae or 
continue their ahelling of the city. Por example, Sarajevo waa hit with a 
Siege-high 3,777 ahella on 22 July 1993 after the United Statea ruled out direct 
Intervention to prevent the ahelling of the city. The oppoaite behaviour waa 
obaerved in Auguat 1993, when Preaident Clinton warned that the United Statea 
would conaider bombing Serbien forcea if the ahelling of Sarajevo continued. 
When thia threat appeared immediate, the attacka on Sarajevo diminiahed and 
Serbian troopa were withdrawn from the aurrounding mountaina to the aouth-weat. 
Likewiae in reaction to the Ultimatum by the North Atlantic Treaty Organization 
(NATO) on 9 February 1994, which gave Boanian Serb forcea 10 daya to withdraw 
their heavy weapona or face heavy airatrikea, the beaieging forcea aubatantially 
complied and curtailed their ahelling of the city. Thia behaviour auggeata that 
there ia a centralized comroand and control of the beaieging forcea and that when 
there ia preaaure for the ahelling to atop, it doea. 

52 / See annex VI.A. 



gi 



r^ 



53/ Thia research waa conducted on the baaia of Information availabli 
the databaae and reported in paraa. 183-193. Por a daily chronology, aee 
annex VI. 



in 



54/ See annex VII. 



/... 



-■> 



%& 



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s/1994/674 
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4 



Note» (continued) 

Si/ Other Information on deatruction of cultural property ia contained in 
annexes XI and XI. A, Th« battle and sieg* of Sarajevo (paras. 183-193) and 
particularly annex VI reveal eignificant and purposeful destruction of cultural 
and religioue tnonumente in Sarajevo. 

8i/ CommuniquÄ dated 22 September 1993 from the Zagreb Foreign Press 
Bureau. The Conwission considers that the Croatian Army bears some 
responsibility in thie matter. 

83 / See annex XI .A. 

84 / See annex XII. 

85/ 
Commis 




opinion 

11 January 

11 January 1992. 

86 / The sources of information are described in paras. 20-24. 

87/ The territory over which raost of the victimization occurred had a 
Population base of an estimated 6 million persons, of whom 1.5 to 2 million are 
now refugeee in more than 20 countriee. Most of them were deported or forced to 
leave and are unable to return. The civilian and railitary casualties among all 
warring factions are reported to exceed 200,000. The number of reported mass 
gravesr 150, discuseed in paras. 254-264, tends to support the estimates of the 
number of caaualtiee. Over 700 prison camps and detention facilities are 
reported to have existed (see paras. 216-231). The number of detainees and 
reports on mistreated prisoners, in for example, the Prijedor area alone exceeds 
6,000 (see parae. 151-182). As stated in paragraph 153 concerning the Prijedor 
area, -the total number of killed and deported persona as of June 1993 is 
52,811-. The rape and sexual assault study and investigation discussed in 
paragraphe 232-253 suggests a very high number of rapes and sexual assaults in 
custodial and non-custodial settings (see also para. 229). Thus, the earlier 
projection of 20,000 rapes made by other sources are not unreasonable 
considering the number of actual reported cases. 

88 / Establishing the truth is the best niethod of enhancing deterrence. In 
fact, early investigation of the facta, in any context of criminal activity, 
increases the ef fectiveness of future prosecution. The combination of 
investigation and prosecution makes deterrence more effective, thereby reducing 
possible violations in the future. Without effective investigations and 
prosecutions, the converse is true. 



f 

9 



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Notes (continued) 

70 / The patterns have been identified for the purposes of analyais only 
and, to aome extent, they overlap* Thus, some caaes illustrate more than one 
pattern, while, on the other hand, not all caaes fall within these five 
categories identified. The use of these interviewe as illustrations is not a 
definitive characterization of the type of rape in question, as in some cases 
fürt her investigation is needed. 



71 / Out of the 514 allegations which 
occurred in places of detention. 



are included in the database, 327 



22/ It should be noted that several victixns have reported acta of courage 
and generosity by Serbe who tried and at timea succeeded in saving and sparing 
victime from death, torture and rape. Such acte should be acknowledged and 
recognized. 

22/ See annex X. 

21/ Multiple reports of graves containing different Information regarding 
location or number of bodies, while possibly involving some duplication, have 
been included since there is no means of ascertaining whether the reports refer. 
to the same grave or different ones. 

» ■ 

25/ For example, there are at least nine reported grave sites in north- 
weet Bosnia and Herzegovina which may contain both Muslim and Croat victima. 
These grave Sites are located in Brisevo, Raljas, Stara Rijeka, Redak, Ljubija, 
Volar ic, Jubovci, Biscani-Sredice and the Kurevo Forest. 

2&/ This would occur in an instance where two factions were fighting one 
another, civilians were killed, and their neighbours had no choice but to bury 
thera in mass graves, owing to time, sanitary or safety considerations. 

22/ Aroong these ares OvCara, allegedly containing civilians and wounded 
Croatian soldiers taken from the Vukovar Hospital (see paras. 265-276); Pakraöka 
Poljana, where the Commission found 19 bodies after conducting investigations in 
October and November of 1993 (see paras. 277-284) and Marino Selo, where the 
Commission has received Information regarding a mass grave containing as many as 
2,500 bodies (see paras. 277-284 and annexes X, X.A, X.B). 

21/ First Geneva Convention, art. 17; Third Geneva Convention, art. 120; 
Fourth Geneva Convention, art. 129; Protocol I, art. 34. 

22/ For a more detailed discussion of the iasue of missing persons, s 
E/CN.4/1994/26/Add.l. 

79a / See annex X.B. 
80 / See annex X.B. 






/... 



u 

«5' 



4i»^ 



^ 

^ 



S/1994/674 
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Note« (continued) 

55 / Thie inveetigation of rape and other sexual assaults was conducted by 
the Commission with 11 teams of female lawyers (from Finland, the United States, 
Canada, Bangladesh and Ireland), who conducted Interviews, and 8 female (and 2 
male) mental health specialists (from the United States), who worked to support 
the process. The professional members of the teams volunteered their time to 
this investigation. This is the first time that such an investigation has been 
conducted in time of war by women seeking to determine the facta about rape and 
other forme of sexual assault (see annex IX. A). It is noteworthy that, 
notwithstanding the understandable fears and apprehensions of the victims and 
witnesses, 223 of them voluntarily agreed to speak to the Commission 'a team of 
Interviewers. Every member of the team first approached interviewees with 
expressions of human solidarity and concern. Invariably to such traumatized 
victims, the mere fact that a United Nations body tangibly expressed its concern 
for them was comforting and uplifting. Almost all interviewees expressed their 
appreciation to the Interviewers in the wärmest ways. If nothing eise, this 
unique investigation brought some human comfort and support to these victims. 
During the last few days of interviewing, the Commission 's field officers 
received an average of 15 calls a day from victims and witnesses wanting to meet 
an Interviewer. Unfortunately, the investigation had to be concluded on 
31 March, because the Commission had to end its work on 30 April 1994. Phase I 
of the investigation took place in Croatia. Phase II took place in third 
countries, such as Slovenia and Austria. It was not possible to conduct an 
investigation in the territory of the Federal Republic of Yugoslavia, as the 
Commission had requested from that Government. Interviews which provided 
Information about other violations of international humanitarian law are dealt 
with in other relevant chapters of the present report. Investigations were also 
conducted in Austria and Sweden for the Commission, but their results are not 
included in the present summary because of special conf identiality 
considerat ions . 

66 / One victim reported an attempted rape in her home« 

67 / This number does not include rapes witnessed by rape victims 
themselves. 

68 / In addition to the cases of rape and sexual assault, the Interviews 
gathered important Information regarding mass executions and mass torture, 
particularly in the detention camp context. 

69 / As stated in footnote 65 above, the Commission had the opportunity to 
pursue further interviewe in Croatia. In addition, the Government of Turkey 
invited the Commission to conduct interviewe in that country. However, the 
Commission could not do either, because it was req[uired to conclude its work by 
30 April 1994. 



9 



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ff 



Not»« (continu«d) 

15/ Smm annex VIII. s«« also reporta of the Conference on Security and 
Cooperation in Europe: Report of the Thompaon CSCE mission to the detention 
camps in Bosnia and Herzegovina (aee S/24583); Report of the mission to Bosnia 
and Herzegovina and to Croatia (composed of Mr. H. Corel 1, Mr. H. Tuerk and 
Ms. Gro Hillestad Thune) under the Moscow Human Dimension Mechanism of the CSCE 
(30 September-5 October 1992). 

16/ ICRC information on this subject has not been made available to the 
Commission, as the ICRC deemed it to be conf idential. 

12/ Annex VIII contain» details that support and amplify the ensuing 
summary • 

SS,/ During a mission of the Commission to Tuzla, the medical personnel of 
the hospital reported a large number of rapes, with the victims ranging in age 
from 5 to 81 year» old. The Commission has not been able, however, to verify 
these allegations. 

12/ See annexes IX and IX. A. 

60/ See E/CN. 4/1993/50. The fears of victime are both real to them and 
weigh heavily.on their decision to speak out about their traumatic 
victimization. 

61/ See annex IX. The figures reported below are approximate because, 
notwithstanding careful scrutiny, some of the reported incidents may be 
repeated. 

12/ In some reports, numbers are supplied instead of names to protect the 
identity of the victims. However, the submitting party has the true identity of 
the victim on file. 

63/ Other factors perhaps contributing to the correlation may include: 
the fact that some mass movements of people involved in "ethnic cleansing" had 
already occurred; or that mass media attention and insensitive treatment of 
victims combined with -fatigue" among victims resulted in a decline in the 
number of reported rapes. Alternat ively, the public simply became less 
interested in the issue, and journalists stopped pursuing the stories. 



64/ The Commission met with a Sarajevo medical team concerned with 
care of rape victims and spoke with two teen-age rape victims during its 
m April. ^ 



the 
Visit 



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Öllpamolam Ni^ma 



VolumeXXXVI, Number 12 



December 8, 1994 



Page 1 



[ 



LETTER PROM BRÜSSELS 



The Passing of Jean Blondeel - 

"His Memory Will Forcver Be In 

Our Hearts" 

On Sunday, November 27, 1994, 
Jean Blondeel of the Paris office passed 
away in Brüssels. The foUowing is the 
memorandum written by Jean-Michel 
Tron announcing this sad news to die 
Paris office and an English transladon 
of the same. 

le 1er d^embre 1994 

MEMORANDUM POUR TOUT LE 

BUREAU DE PARIS 

Commc ccrtains doivcnt d^jä Ic savoir, 
Jean Blondeel est d6c6d6 dimanche dernier 
äBruxellcs. II sera inhumd demain, vcndrc- 
di 2 ddcembre 1994, aucimeti^re de Sövres 
aprts une cdrdmonie religieuse ä 15h30 cn 
TEglise Saint-Nicolas et Saint-Marc ä Ville 
d'Avray. 

La mort de Jean nous atteint tous. II a, 
en effet, beaucoup contribud ä ötablir la 
Continued on page six 

In This Issue . . . 

Letter From Brüssels 

ByNina Van Grootc 1 

The Passing of Jean Blondeel 1 

Letter to the Editor 2 

Exploring the Hinterland 

By James D. Merriman, W 6 

The All Night Medley By Shawn Golden and 

Kamü Poorman 9 

London Office Notes 10 

Washington Office Notes 13 

New York Office Notes 14 

Quotes of the Tri-Week 18 






By 
Nina Van GrooU 



Avocats Sans Frontiöres In Rwanda 

An Interview With Bavo Cool, President Of Tlie Board 

Of Directors 



Y; 



bu might think that the last thing a Rwandan 
needs is a lawyer. You would be wrong. 

The country has been tom apart by violence. 
One million people have been killed, of which 
500,000 were killed in the space of 60 days. The 
authorities count 150,000 murder suspects. There 
are 4 magistrates, about 30 lawyers and two State 
prisons to deal with these crimes. Not surprisingly, 
there are armed gangs com hing the country, exact- 
ing their own personal revenge from those whom 
they suspect to have been involved in the killings, 
and needless to say, they don't usually stop to try 
them. 

Bavo Cool, the President of the Board of Direc- 
tors of Avocats Sans Frontieres ( Attorneys Without 
Borders), is not one to watch events from the safety 
of his armchair. At the end of August (August 20- 
28), following an appeal hy Medecins sans Frontieres 
(Doctors Without Borders), he was one of a party 
of 6 international observers, including one repre- 
sentative oiAmnesty International^ two representa- 
tives of Action Juridique Internationale and one 
representative of Causes Communes^ that went to 
Rwanda to zsscss the Situation for themselves and 
to meet the people, representatives of the new 
govemment and the aid organizations active there. 
Their report reveals the deep mark which the sheer 

Continued on the following page 



Page 2 



December 8, 1994 



Cleargolaw News 



Paris, September 14, 1994 

To the Editor of Cleargolaw 

News: 

As the Roy als become increasingly 
dysfunctional, Ms. Duval-Major's piece on 
the Queen's corgis and also on, inevitably, 
the Princess of Wales, brought to mind 
what (if the history books are to be be- 
lle ved) it was like to be the dog of a full- 
blooded Hanoverian. In those days the 
dog would be a mastif and would have a 
collar bearing a couplet by Alexander Pope, 



viz. 



*T am His Highncss' dog at Kcw, 
Pray teil mc, sir, whosc dog arc you? 



w 



Today, of course, the second line 
wouldn't Scan after the obligatory Inser- 
tion of "sir/madam'' and "dog/bitch.'' 

The descent from Hanoverian to 
Windsor might possibly be mitigated if the 
corgis, too, wore coUared Couplets, which 
could be changed from time to time. Fol- 
lowing the chewing of leather upholstery 
(to the double fascination of readers of The 
Times and of your publication), they might 
read, 

"Wc'rc into Icathcr, tom to shrcds, 
For wc'rc the royal quadrapcds." 

On ordinary days, a more Carolingnian 
note might be Struck with, for example, 

"By whom wcrc bobbcd our lovcly tails? 
Nonc othcr than the Prince of Wales!" 

Unlikely as she might be to follow 
suit, the Princess of Wales might consider 
the Utility of acquiring a corgi, or blood- 
hound, whose collar would read, 



'^My Di doth chastely gird her loins 

And keep her hands from pay-phone coins." 

I am, Madam, yours faithfully, etc., 

Terry Cone 



Continued front the prccedin£i page 

horror and desperation of the Situation left on 
them. Bavo is adamant that a justice System 
needs to be reestablished, and quickly. "If you 
delay justice, you deny justice" he says. "The 
administration no longer exists. The country 
is ransacked, no water, no electricity, no Com- 
munications, no transport; the State coffers 
are empty. The government is a new govern- 
ment that does not have the experience to deal 
with issues like genocide. But then, no gov- 
ernment has.'' 

It is a Situation which the Rwandan au- 
thorities cannot themselves cope with. The 
UN and numerous NGOs (non-government 
organizations) have been calling for concerted 
mttvn2X\on2l2iSS\st2nct.Avocats Sans Frontieres 
is one of the organizations which would best 
be able to provide some of the help and 
expertise so desperately needed. To take on 
this kind of task is not what the association 
was created for. But then, the Rwandan 
Situation is exceptional. It has prompted the 
members of Avocats sans Frontieres to recon- 
sider their objectives. 

Avocats Sans Frontidres 

Avocats sans Frontieres is an association of 
attorneys who provide free legal assistance 
where the right to a fair trial and to a free and 
independent lawyer is under threat. Avocats 
sans Frontieres was founded in 1991 by the 
presidents of several French-speaking bars as 
well as the presidents of the bars of Moscow, 
Burkina Faso, Gabon and Senegal. They 
issued a declararion in which they stated their 
objectives, in particular with reference to ar- 
ticles 10 and 11 of the Human Rights Decla- 
ration. 

According to Bavo, the idea originated 
with Bernard Kouchner, who founded 
Medecins sans Frontieres. As their work has 
continually been taking them to the world's 
most violent troublespots, Medecins sans 
Frontieres began to think that it wouJd make 

Continued on the followinß page 



i 



Cleargolaw News 



December 8, 1994 



Page 3 



Continued from the precedinß page 

sense to try to also attack the root of the 
problem rather than only treating the Symp- 
toms. Medecins sans Frontieres realized that 
much of the violence they wimessed was reac- 
tionary and the direct result of human rights 
violations. 

"Besides, many lawyers, and in particuJar 
the Brüssels bar, were already involved in 
human rights actions. So were several other 
bars, or organizations such as Amnesty Inter- 
national or Human Rights Watch. However, 
these were mostly organizations that wanted 
to sensitize public opinion. That was not 
sufficient. Therefore [Kouchner] wanted to 
help fight for human rights, and he thought 
that Avocats sans Frontieres could be those 
human rights fighters."' 

On the occasion of the creation ofAvocats 
sans Frontieres ^ Kouchner said: "We respect 
the sovereignty and judicial competence of 
every State. Even more so because they ensure 
the well-being of the people. We only demand 
that they behave in a more humanitarian, and 
therefore humane, way. A govemment which 
has nothing to hide would not be able to 
deprive a victim of the stethoscope of a doctor 
or a defendant of the advice of a lawyer."' 

Strong evidence that Avocats sans 
Frontieres Stands a good chance of fulfilling 
these high hopes is Bavo's own presence at the 
head of the Organization. When asked why he 
became involved with Avocats sans Frontieres, 
he rephrases the question: "In fact the ques- 
tion should be: 'Why did you become a law- 
yer?' 'Why did you become an avocat?' I 
became an avocat because I am opposed to 
violence. I am revolted by injustice. The only 
way to deal with violence is application of 
justice. That is why I am very motivated to be 
involved with Avocats sans Frontieres. ^ 



How Avocats Sans Frontiöres Works 

Bavo describes hovj Avocats sans Frontieres 
works in practice: "We get calls from organi- 



zations that share our values, for example 
Amnesty International. Often Amnesty In- 
ternational has already investigated cases it 
refers to us, but as you know, Amnesty Inter- 
national does not go into court. Amnesty 
International creates public awareness of cer- 
tain situations, but then they stop. And as of 
the moment that their action cannot go any 
further, they call upon us, and we take over.'' 

"Cases also come through Reporters sans 
Frontieres (Reporters Without Borders). These 
are generally cases involving journalists who 
are being prosecuted for having expressed 
their opinion, or through other human rights 
organizations. They call upon us and we take 
up the defence. Finally, we also get individu- 
als that call upon us.'' 

Involvement by Avocats sans Frontieres is 
incremental. Depending on the Situation, the 
first level of involvement is often providing 
moral and logistical support. This means 
helping the local lawyer with the preparation 
of the case and providing her or him with 
Information. "The second level is to stand 
beside the local attorney in court, and to make 
it known to the court and to the public that the 
international Community is watching what is 
going on. The third level is that we would 
actually plead the case. We stand up and do 
the pleading because generally we have better 
immunity than the local lawyers." 

Asked whether courts actually accept the 
presence of a lawyer fromAvocats sans Frontieres 
and how much weight their Standing next to 
the local attorney has, Bavo answers: "Often 
the result of our presence is that the hearing is 
postponed. When the court sees that we show 
up, then the judge finds a reason to postpone 
the trial of the case, which puts a heavy bürden 
on US, because then our avocat has to go home. 
Then they call the case back two weeks later. 
They really try to exhaust our patience." 
However annoying this may be, it does seem 
to suggest that they t^tAvocats sans Fron tieres 

Continued on the followinß poßc 



Page 4 



December 8, 1994 



Cleargolaw News 



Continucd from thc prcccciing pagc 

seriously. "Oh yes. I have noticed that many 
countries don't want to be criticized for their 
lack of respect for human rights. It's a touchy 
subject. Älready die letter-writing diat Am- 
nesty International does and the publicity that 
Amnesty International has given to some cases 
has gready sensitized the govemments' atti- 
tudes." 

Projects which Avocats sans Frontieres has 
already carried out include, for cxample, de- 
fending and securing the release of 16 Kurdish 
lawyers accused of having communicated with 
European human rights organizations and of 
maintaining links with the PKK (Kurdish 
Workers' Party). Currently Avocats sans 
Frontieres is assisting in obtaining the reopen- 
ing of the trial of Sebastian Arcos, the Cuban 
human rights activist. Avocats sans Frontieres 
has sent lawyers to Liberia, Greece, Sierra 
Leone, and is following up incidents in India, 
Kurdistan and Egypt. 

Who Do They Help? 

The association receives far more requests 
for intervention than it can foUow up on. 
How are those cases which are going to re- 
ceive Avocats sans Frontieres^s attention se- 
lected? Each case is analyzed on its own 
merits. First priori ty is to support and assist 
lawyers who are prevented from performing 
their professional duties because of their in- 
volvement with human rights cases. Next 
come cases involving people who stand up for 
human rights and who are in trouble because 
of it. This category includes, for example, 
members ofMedecins sans Frontieres or Report- 
ers sans Fron tieres. 



Who Goes On These 

''First of all, what determines who is 
going to go on a particular mission is his 
knowledge of the legal System ofthat country, 
his knowledge of the language, and his knowl- 
edge of the issue that is being debated. Ideally, 
we should have an international network of 
attomeys, so that we can send competent 



people rapidly and economically to where they 
are needed. 

"When it is a serious case, as for example 
in Turkey, and when the lawyer has to go and 
plead in court, we do not send a young and 
inexperienced lawyer. In the case of Turkey it 
was the president and the former president of 
the Brüssels bar that went. It is important that 
the individuals we send in critical situations 
are highly respected, intemationally known 
lawyers." 

One of Bavo's main aims during his term 
of Office as President of the Board of Directors 
is to expand the Avocats sans Frontieres net- 
work. As yet, the association does not have 
any members trained and practicing in com- 
mon law legal Systems. Obviously, the more 
diverse the backgrounds of the members, the 
more likely it will be th2itAvocats sans Frontieres 
will be able to find amongst its members 
lawyers competent to help in any given Situa- 
tion. 

Funding 

The lawyers who go on missions donate 
their Services and are reimbursed for their 
travel expenses and accommodations only. 
This is paid for out of membership fees. For 
some projects, Avocats sans Frontieres has re- 
ceived financial support from government 
sources. There are also various charities that 
might be prepared to fund projects. How- 
ever, Avocats sans Frontieres is very cautious 
about approaching outside sources. Bavo 
points out that such hand-outs usually come 
with a string of conditions attached. For 
Avocats sans Frontieres it is important, how- 
ever, to remain independent. 

Bavo hopes that in the long-term more 
bar associations will join as members, and he 
expects that much of the outside funding will 
come from the European (Kommission, the 
European Parliament and other sources where 
funds are provided for specific projects, with- 
out interfering with the political choices of the 

Continucd on the followin£f poßc 



Cleargolaw News 



December 8, 1994 



Page 5 



Continued from the prcccdinß page 

organizations that want to carry them out. 

Rwanda 

"There have been hundreds of thousands 
of victims, individuals that have suffered losses, 
women that have been raped or have been 
infected on purpose with the AIDS virus, 
people that have been mutilated. It is difFicult 
to prosecute or to handle justice with respect 
to each and every suspect. Rwanda, Somalia, 
even Turkey are situations where human rights 
are violated on such a scale that you cannot go 
and take up the defence of each individual. So 
we are forced to adapt our strategy.'' 

Rwanda gives an opportunity to try to 
attack the problem at its roots. Those trying 
to help find that they have to start almost fi-om 
Scratch. There is no bar (an attempt by the 
Belgian bar to help create one in 1986 met 
with the government's disapproval and had to 
be abandoned). There are not enough judges 
or lawyers, there are not enough prisons. But 
even if there were, there would not be enough 
food to feed the prisoners. 

Solutions? 

Bavo makes it clear that he does not 
believe in imposing on the Rwandans Solu- 
tions thought up by Outsiders. "Rwanda is a 
sovereign State, and it's an African State. It has 
its own values and traditions. It has sub- 
scribed to and ratified certain international 
treaties, it has subscribed to international val- 
ues. But we are prepared to assist local orga- 
nizations and non-governmental organiza- 
tions, and the first one that I would mention 
is the Organization that attorneys in Rwanda 
will set up themselves." 

"The Solution has to come from the Afri- 
cans, from the Rwandans. They have human 
rights organizations whose actions are coor- 
dinated, one of which is called CLADHO. I 
think those are the ones that we have to help 
so that they can perform in Rwanda in accor- 
dance with the objectives which are theirs. 



But we should no longer step in and do it for 
them.'' 

In this context Bavo sees Avocats sans 
Frontieres^s future role in providing practical 
assistance and help with the training of law- 
yers. He suggests the creation of a "House of 
the Attorney", an Information center and li- 
brary which Stocks documentation on special 
issues such as those arising in connection with 
genocide and the application of those treaties 
which were violated in Rwanda. Another 
central idea is the creation of a school for 
lawyers and legal assistants providing short- 
term intensive training courses. 

When Bavo met the Rwandan justice 
minister in the Hague recently, he discovered 
that the minister was quite prepared to put 
these plans into action and to take up the 
creation of a bar where this project had been 
abandoned in 1986. However, there is as yet 
no parliament to take a vote on the issue, and 
there is no administration to implement the 
necessary measures. 

At a recent meeting with the UN Human 
Rights Commission Special Rapporteur in 
Rwanda, Mr. Degni-S^gui, Bavo suggested 
that one Option for achieving justice for the 
victims in Rwanda might be to raise a class 
Claim against the perpetrators of the violence 
and those who assisted them with training and 
arms (potentially including some sovereign 
States). It has not yet been decided who will 
be asked to investigate this possibility and 
pave the way for a lawsuit. The UN, presum- 
ably, has no money to undertake such a task. 
So far, Bavo has not volunteered. "We could 
be doing pro-bono work until we go bank- 
rupt!" he laughs. It seems unlikely, however, 
that he will prefer the armchair Option. 



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FINAL Edition 



War Crimes First. 

The Washington Post, August 23, 1994, 

By: John Shattuck 

Section: EDITORIAL, p. al9 

Story Type: OP-ED 

Line Count : 59 Word Count : 650 

Among the greatest challenges that the suffering in Rwanda poses to the 
World are to end the cycles of death and retribution, to lift the 
demoralizing bürden of collective guilt that has settled on Rwandan society 
and to find a way to punish this genocide in order to prevent future 
genocides. That is why it is vital that the international Community rapidly 
create a war crimes tribunal for Rwanda that will hold the perpetrators 
of genocide and other atrocities accountable to their victims and to the 
international Community. The United States is working vigorously with other 
nations to create such a tribunal. 

The ethnic fault lines of the killing in Rwanda and similar conflicts 
have led some to characterize them mistakenly as tribal feuds whose deep 
historical^ roots lie beyond the reach of justice and diplomacy. In fact, 
the genocide in Rwanda was engineered and led by political actors for 
political ends. Their cynicism and brutality must now be answered by the 
principles of accountability and law. In an encouraging development, the 
Rwandan government wrote recently to U.N. Secretary General Boutros 
Boutros-Ghali to urge the prompt establishment of an international war 
crimes tribunal. The Rwandan authorities have said they will defer their 
own prosecutions of war criminals in the near term to the work of the 
international tribunal . 

The wheels must turn quickly. Successful prosecution will remove 
instigators of genocide from the scene, deter vigilante justice and acts of 
revenge, and help give Rwandans-and their neighbors in Burundi-the 
confidence to restore wounded societies. 

The U.N. Security Council has already established an international 
tribunal for the former Yugoslavia, which has gathered hundreds of 
testimonies and is actively preparing its case. The Yugoslav Tribunal can 
advance the process of Rwandan justice by sharing administrative resources 
and personnel, as well as the energies of its already-established trial 
and appellate Chambers. With these structures already in place, the Rwandan 
Tribunal could proceed with great dispatch; both the Yugoslav and Rwandan 
tribunals will need adequate funding to carry out their work. Last month 
the Security Council empaneled a commission of experts to investigate the 
genocide in Rwanda . As the commission continues its investigation, the 
Council should formally move to create a tribunal. 

While the proceedings in diplomatic capitals may seem remote from the 
killing fields of Rwanda and the refugee camps of Zaire, they are of 
great and immediate concern to the survivors . The refugees will go home and 
rebuild their shattered lives only if they believe they can do so without 

(C) 1994 WASHINGTON POST ALL RTS . RESERV. 



iW* 

^^^ 




WESTLAVV 



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PAGE 



fear of retribution. The intimidation and disinformation about unlawful 
vengeance plaguing the refugee camps can only be countered by reliable 
accounting about the Situation on the ground in Rwanda , and a credible 
pledge of impartial justice that will prevent militant extremists from 
inciting violence or terrorizing already besieged masses of refugees. 

Meanwhile, the international Community must take action to help gather 
evidence and detain persons in the territories under its control against 
whom there is credible evidence of genocide. There is also an urgent need 
for human rights monitors. The U.S. government has already pledged to 
Support their efforts and is urging other nations to do the same. 



The best hope of ending the cycle of genocidal violence in Rwanda lies 
in ensuring that those who planned and led this mass slaughter are 

and, if convicted, punished. But in a country as deeply 
, one Community' s justice will likely be seen as 
That is why it is up to the international Community to 
verdicts of guilt and innocence on those chiefly 

's own justice System can proceed 



identified, tried 
divided as Rwanda 
another ' s revenge . 
render impartial 



responsible for the genocide so Rwanda 
with the work of reconciliation. 



The writer is assistant secretary of State for democracy, human rights 
and labor. He recently returned from a trip to Rwanda and Burundi. 



DESCRIPTORS: Rwanda 



Refugees; War crimes 

(C) 1994 WASHINGTON POST ALL RTS . RESERV 







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WAS BLEIBT. SIND STUMME ZEUGEN: Um die persönliche Geschichte der Verfolgten zum Sprechen zu 
Wissenschaftler derzeit mit Video- Interviews an einer anderen Art der Geschichtsdokumentation. 



^ahl 



Archive der Erinnerung 

Forscher aus Potsdam und Yale befragen Überlebende des Holocaust - und konkurrieren dabei mit einem Steven Spielberg- Projekt 



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In Shoah. sagt Claude Lanzmann über 
seinen neunstündigen Filmessay, gebe es 
keine Sekunde aus dem Archiv. Was ge- 
schehen war, sprengte für ihn alle her- 
kömmlichen Möglichkeiten der Histori- 
sierung. Um „Zeugnis abzulegen" vom 
Holocaust, habe er nichts rekonstruiert, 
sondern eine neue Form zu finden ver- 
sucht. Die Interviews mit Überlebenden 
des Holocaust, so wie Claude Lanzmann 
sie in jahrelanger Arbeit geführt und 
geschnitten hatte, besitzen daher nicht in 
erster Linie Dokument-, sondern Kunst- 
charakter. 

So wenig man Shoah vornehmlich als 
ein historisch-wissenschaftliches Unter- 
nehmen betrachten kann, so wenig stellt 
das „Archiv der Erinnerung", das derzeit 
am Moses-Mendelssohn-Zentrum der 
Universität Potsdam entsteht, eine neue 
Version von Lanzmanns ehrgeizigem l^o- 
jekt dar - auch wenn es die Potsdamer 
wesentlich inspiriert hat. Die Arbeit am 
Archiv steht in der Tradition der „Oral 
History", der mündlichen Geschichtsdo- 
kumentation. Eine psychologisch ge- 
schulte Arbeitsgruppe führt Interviews 
mit Überlebenden des Holocaust: das Ziel 
ist, die Geschichte der NS-Verfolgung aus 
den Augen jüdischer Zeitzeugen auf Vi- 
deobändern festzuhalten. 

Die Historiker, die eine solche mündli- 
che Geschichtsdokumentation betreiben, 



erklärt die Konstanzer Literatur- und 
Kulturwissenschaftlerin Aleida Ass- 
mann, dehnten den Fundus an Ge- 
schichtsquellen auf persönliche Erinne- 
rungen aus und machen das „Erinne- 
rungsinterview" zu einem neuen For- 
schungsinstrument. Daher müssen die 
„Oral-History-Forscher" das Kunststück 
fertigbringen, so Aleida Assmann, wäh- 
rend des Interviews „eine Situation mit- 
menschlichen Vertrauens zu schaffen, 
und sie müssen andererseits, um als Wis- 
senschaftler mit diesem Material arbeiten 
zu können, kritisch verfahren und die 
Erinnerungen auf einen objektiven Wahr- 
heitsgehalt prüfen". 

Fragen ohne Vorgaben 

So schwer die persönliche Erinne- 
rungsarbeit wissenschaftlich aufzuberei- 
ten ist. so sehr verspricht gerade die 
Subjektivität der Schilderungen, histori- 
sche Erfahrungen festzuhalten, die sich 
der spröden P^aktizität herkömmlicher Hi- 
storisierung entzieht. Ähnlich wie im psy- 
choanalytischen Gespräch versucht man 
durch eine zurückhaltende Fragetechnik 
der eigenen Erinnerungsarbeit Raum zu 
geben, um die Authentizität des Geschil- 
derten zu gewährleisten. 

Für Geoffrey Hartman. Professor für 
Literatur aus Yale und. neben dem Pots- 



Das fliegende Klassenzimmer 

Eine Simulation zeigt Politikstudenten, wie Diplomaten arbeiten 



Wenn die Kunst des UNO-Diplomaten 
darin besteht, den Kollegen nicht auf die 
Füße zu treten und die Politik seines 
Landes trotzdem in deutliche Worte zu 
kleiden, dann spielt John seine Rolle ver- 
dammt glaubwürdig. Daß der Westen, 
allen voran die USA, die Friedensmission 
in Somalia verpfuscht hat. spricht John, 
der Botschafter Nigerias, nicht aus. Denn 
das wäre ja undiplomatisch. Ein Appell 
an „die Solidarität der afrikanischen Brü- 
der" ist viel geschickter. 

„UNO-Missionen auf unserem Boden 
künftig unter unserer Führung" lautet 
Johns Botschaft, und die Taktik geht auf: 
Für seine Rede erntet er den Applaus aller 
afrikanischen Diplomaten. Als sie auch 
noch seinem Resolutionsentwurf zustim- 
men, ist klar, daß John New York als 
Sieger verlas.sen wird - ausgezeichnet mit 
einer Urkunde, die ihm und den anderen 
Studenten der Universität Wisconsin be- 
scheinigt, mit ihrer Version nigeriani- 
scher Diplomatie eine der realistischsten 
Vorstellungen beim ..National Model Uni- 
ted Nations" geboten zu haben. 

In den USA gehören Roilenspielo in 
vielen Studiengängen genauso zum Ix?hr- 
plan wie Vorlesungen und Hauptsemina- 
re. Wer Jurist werden will, darf sich schon 
während seiner Zeit an der Universität als 
Ankläger oder Verteidiger in einem nach- 
gestellten Gerichtsverfahren versuchen. 
Wer wie John Politologie studiert, .setzt 
alles daran, seine Universität bei einem 
der zahlreichen „Models" zu vertreten. 

Für Dietmar Herz. Dozent für Politik- 
wissenschaft am Geschwister-Scholl- 
Institut der Münchner Ludwig-Maximili- 
ans-Universität, ist das Experimentieren 
mit der Rolle des Diplomaten „mehr als 
eine Spielerei". Herz nennt die UNO- 
Simulationen eine „Analysetechnik inter- 
nationaler Politik mit hohem I-erneffekt". 
3as System der Vereinten Nutionen ver- 
tehen. die Politik. Kultur und Geschichte 
Ines fremden I^andes verinnerlichen, 
nicht nur große Reden vor großen Grup- 
pen halten, sondern auch Verhandlungen 
unter den Kulissen führen - da^ alles 
üßten Studenten bei einer UNO-Simu- 
ation bewältigen. 

Weil sie dabei Einblicke in die Mecha- 
nismen internationaler F'olitik erhalten, 
'die sie so sonst nicht kriegen", schickt 
Herz seit fünf Jahren Münchner Studen- 
ten zum „National Model United Nations". 
dessen Vorstand er angehört. 1948 ge- 
gründet, ist das „Model" in New York die 
älteste der UNO-Simulationen. mit 2000 
Teilnehmern zudem die größte ihrer Art. 
und wegen des Standorts vielleicht auch 
diejenige, welche den Vereinten Nationen 
und ihrer Arbeit am nächsten kommt. Die 



Resolutionen, an denen die Studenten im 
Sicherheitsrat, der Vollversammlung und 
den anderen Gremien eine Woche lang 
ba.steln. werden nicht für den Papierkorb 
geschrieben, sondern dem UNO-General- 
sekretär vorgelegt. Und wenn die Pseudo- 
Diplomaten am Ende allen Formulierens 
und Verhandeins über die Zukunft der 
Blauhelmeinsätze in Afrika abstimmen, 
dann sitzen sie nicht im Konferenzraum 
eines Hotels, sondern im großen Sit- 
zungssaal des UNO-Hauptgebäudes. 

Doch bevor es zum Auftritt kommt, 
proben die amerikanischen Studenten die 
Diplomatenrolle zumeist auf weniger 
spektakulären Bühnen, den Seminarräu- 
men. Welche Sprachregelungen muß eine 
UNO-Resolution enthalten? Was sind die 
innenpolitischen Schwierigkeiten des 
Landes, das man vertritt? Welche Staaten 
sind Partner, welche sind Gegner? Solche 
Fragen zu klären, bestimmt das akademi- 
.sche Vorspiel einer UNO-Simulation. 
„Sinnvolle Vorbereitung kann nur an der 
Universität erfolgen", sagt Dietmar Herz. 
Nach amerikanischem Vorbild präpariert 
er die Münchner Delegation ein Semester 
lang für die Reise nach New York. 

Nur fand dies bisher nicht an der Uni- 
versität .statt, sondern gelang nur durch 
die Eigeninitiative des Dozenten und 
zweier Mitarbeiterinnen. Vom nächsten 
Wintersemester an wird sich das ändern: 
„Zum erstenmal", so Herz, „wird die Teil- 
nahme an einer UNO-Simulation an einer 
deutschen Unversität institutionalisiert." 
Den Auswahlmodus behält Herz bei: Be- 
werben können sich Studenten aller 
Fachrichtungen, gutes Englisch ist wich- 
tigste Voraussetzung. Finanziert vom 
Auswärtigen Amt, dem DAAD und der 
Universität fahren schließlich etwa fünf- 
zehn Studenten nach New York, stets mit 
schwierigen Aufgaben im Gepäck, 

So wie in diesem Jahr, als die MLssion 
der Münchner darin bestand, den Got- 
tesstaat Iran zu repräsentieren. Viele Ver- 
bündete hatten sie in der Rolle der islami- 
.schen Fundamentalisten nicht. Das 
machte sich spätestens im Umgang mit 
denen bemerkbar, die zwi.schen dienli- 
chen und unnützen Verbündeten sehr 
wohl zu unterscheiden wissen. So wie 
John, der Nigerianer. Als der Kollege aus 
dem Iran ihm klarmachen will, daß die 
nigerianische Resolution das I*rinzip der 
Nichteinmischung in die inneren Angele- 
genheiten eines Staates stärker betonen 
müsse, winkt John ab: .There's no need to 
talk to you." Das klingt zwar nicht sehr 
diplomatisch, aber da der Kollege weder 
Freund noch Feind i.st. kann man ihm ja 
auch mal auf die Füße treten. 

MARKUS VORBECK 



damer Julius Schoeps. Leiter des Pro- 
jekts, ist diese eigentümliche Authentizi- 
tät der mündlichen Interviews durch kei- 
ne andere Art der Geschichtsschreibung 
zu ersetzen; nicht nur, weil sie eine Ge- 
schichtsdokumentation aus Sicht der Op- 
fer ermöglicht, sondern auch weil sie 
selbst Teil der öffentlichen Einbildungs- 
kraft wird: Erst die Bilder der aufgezeich- 
neten „Erinnerungsinterviews" ermögli- 
chen, so Hartmann, daß an die Stelle der 
erniedrigenden Nuzi-Fotos, wie sie übli- 
cherweise in den Holocaust-Museen zu 
finden sind, andere Bilder treten: „Wir 
können nicht zulassen, daß unsere Erin- 
nerung nur von Bildern bestimmt wird, 
die die Täter gemacht haben." 

Daß die Universität Potsdam bei dem 
Projekt mit dem I.i'eraturwissenschaftler 
Hartman zusammenarbeitet, ist kein Zu- 
fall. Hartman hat 1982 das „Fortunoff 
Video Archive for Holocaust Testimonies" 
an der Universität Yale im US-Bundes- 
staat Connecticut begründet. Heute be- 
herbergt das Archiv 3000 Interviews, etwa 
7500 Videostunden Zur Zeit kommen 
jährlich einige hundert neue Interviews 
hinzu. Kopien von den in Potsdam ge- 
machten Aufnahmen sollen ebenfalls in 
Yale gelagert werden. 

Vor einiger Zeit klopfte auch Steven 
Spielberg an die Tür des Archivs in Yale. 
Er hatte sich während der Dreharbeiten 
zu Schindlers Liste vorgenommen, den 
Großteil aller Überlebenden des Holo- 
caust vor laufender Videokamera nach 
ihrer Geschichte zu befragen. Inzwischen 
hat Spielberg eine eigene Stiftung, die 
„Survivors" of the Shoah Visual History 
Foundation", ins Leben gerufen. 

In Potsdam ist man davon überzeugt, 
daß man den Vergleich mit Spielbergs 
Unternehmen nicht zu scheuen braucht. 
Zwar wolle und könne man nicht mit 
Lanzmanns Filmessay „konkurrieren", 
aber mit Spielbergs neuestem Unterneh- 
men sehr wohl, sagt die wissen.schaftliche 
Mitarbeiterin Eva Lezzi-Noureldin. Ob 
die Rede vom Konkurrieren aufgrund der 
unterschiedlichen Ansprüche und Di- 
mensionen der drei Projekte recht glück- 
lich ist. sei dahingestelt. Nimmt man sie 
zumindest mit Blick auf Spielbergs Vor- 
haben ernst, ist freilich kaum zu sehen, 
woher der Optimismus .stammt. 

Während das Potsdamer Projekt von 
der Volks Wagenstiftung für zwei Jahre 
mit 558 000 Mark gefördert wird, wollen 
so finanzkräftige Konzerne wie MCA- 
Universal. 'Hme Warner und die Fernseh- 
anstalt NBC dem Spielberg-Archiv in den 
nächsten vier Jahren bis zu 65 Millionen 
Dollar zur Verfügung stellen Mittlerweile 
arbeitet die Stiftung knapp ein Jahr und 
bisher wurden über 2500 Interviews auf- 
genommen. 12 000 weitere Namen von 
Überlebenden sind auf Datenbank gespei- 



chert, ungefähr 150 Interviews werden 
zur Zeit pro Woche durchgeführt. Im 
August will man auf der ganzen Welt 
täglich 64 „testimonies" auf Band bringen. 
Das ist kaum weniger als die Zahl von 
Menschen, die in den nächsten zwei Jah- 
ren in Potsdam insgesamt befragt werden 
sollen. 

Gerade die gigantischen Ausmaße des 
Projekts und die Eile, mit der es vorange- 
trieben wird, lassen in Yale und Potsdam 
Zweifel an der wisspn<^rhfiftlichen Sorg- 
falt und dem pädagogischen Wert aufkom- 
men. Cathy GelOin, ebenfalls wissen- 
schaftliche Mitarbeiterin des Potsdamer 
Projekts, betont, daß Spielbergs Mitarbei- 
ter eine durchschnittliche Interviewdauer 
von zwei Stunden ansetzen. Solche Direk- 
tiven aber seien mit der „Oral History" 
und einer an der Psychoanalyse geschul- 
ten Gesprächsführung kaum vereinbar. 

Virtuelle Vergangenheit 

Auch Spielbergs Plan, die Videoauf- 
nahmen in neueste Informationstechno- 
logien zu integrieren, läßt an den Univer- 
sitäten Skepsis aufkommen. Die Daten 
können per Computer abgerufen werden: 
jüngeren Benutzer des digitalisierten Vi- 
deoarchivs soll es in naher Zukunft au- 
ßerdem möglich sein, zwecks Veran- 
schaulichung Ausflüge in virtuelle Kon- 
zentrationslager zu unternehmen. Sie 
werden bevölkert sein mit den Menschen, 
deren Geschichten im Datenarchiv ge- 
speichert sind. Um Erzählungen abzuru- 
einzelne Gesichter schlicht 
Damit verschwinde aber, 
aus Potsdam, gerade die 
n den Medienkanälen der 
digitalisierten Postmoderne. Die Befürch- 
tung ist. daß das Medienspektakel die 
gleichen Abenteuerqualitäten annimmt 
wie Ausflüge in den romantisierten Wil- 
den Westen und derart die grausame 
Wirklichkeit von Au.schwitz und Majda- 
nek eher vergessen als erinnert wird. 

Ob solche Veränderungen in der Erin- 
nerungskultur in Zeiten des Verschwin- 
dens der Zeitzeugen allerdings aufzuhal- 
ten sind, wird von vielen Kulturtheoreti- 
kern einigermaßen bezweifelt. Solche 
Skepsis spricht natürlich keineswegs ge- 
gen die Projekte in Yale und in Potsdam. 
Doch bedürfte es einer stärkeren Refle- 
xion darüber, daß ein „Archiv" gerade 
Zeugnisse sammelt, die eine Gesellschaft 
oder Kultur gerade nicht mehr als ihren 
authentischen und integralen Bestand er- 
lebt, der jedem unmittelbar zugänglich 
ist. Jedes Archiv dokumentiert auch das 
Vergessen. Dies einzugestehen ist ein 
schmerzlicher Schritt. Ihn zu machen täte 
not. der theorettschen und wissenschaftli- 
chen Redlichkeit wegen. 

MICHAEL WEITZ 



fen. genüge es. 
„anzuklicken". 
so die Kritik 
Authentizität i 



Zwischenfrage 



I.JI. 



bringen, arbeiten deutsche und amerikanische 

Photo: Regina Schmckcn 



Sind Professoren eine 
aussterbende Spezies, 
Herr Lange? 

An den Hüch.schulen bahnt sich ein 
Generationswech.sel an: Nach Angaben 
des Wissenschaftsrates sind zwei Drittel 
der Hochschullehrer bereits über 50 Jahre 
alt; in den nächsten zehn Jahren muß 
über die Hälfte aller westdeutschen Pro- 
fessuren neu besetzt werden. Vielen Fa- 
kultäten fehlt es jedoch an qualifiziertem 
wissenschaftlichen Nachwuchs. Über das 
drohende „Profes.sorenloch" sprach Jo- 
chen Leffers mit Josef Lange. Generalse- 
kretär der Hüchschulrektorenkonferenz. 

SZ: Gibt es schon heute ernste Frobleme 
bei Berufungen, oder zeichnen sich erst in 
einigen Jahren Engpässe ab? 

Lange: Die Alarmmeldungen häufen 
sich zusehends, besonders von „jungen" 
Hochschulen, an denen die gesamte 
Gründergeneration allmählich Platz 
macht. An den Fachhochschulen kommt 
hinzu, daß von den Professoren eine min- 
dest(,'ns fünfjährige Berufspraxis erwar- 
tet wird. Im Vergleich zur Bezahlung in 
der Wirtschaft ist aber ein C2-Einstiegs- 
gehalt nicht attraktiv genug. Denn die 
Hochschulen stehen nicht nur unterein- 
ander, sondern auch mit Unternehmen im 
Wettbewerb um die besten Köpfe. 

SZ: In welchen Fächern sind die Nach- 
wiichssorgen am größten? 

Lange: Derzeit bereitet vor allem die 
Entwicklung in den Rechts- und Wirt- 
schaftswissenschaften Sorge. Bei ihnen 
hat die deutsche Vereinigung die Lage 
verschärft: Weil viele die Chance zum 
Karrierestart in den neuen Ländern nutz- 
ten, ist der Markt für den akademischen 
Nachwuchs seit Jahren leergefegt. 

SZ: Wie sieht es in den Geistes- und 
Sozialwissenschaften aus? 

Lange; n.T/.-it aufgrund der Umstruk- 




JOSEF IJ\N(.:, 



turierung der ostdeutschen Hochschulen 
noch etwas besser. Allerdings gestaltet 
sich die weitere Entwicklung unklar, weil 
einige Bundesländer die Hochschulen mit 
massiven Stellenstreichungen konfron- 
tieren und damit alle Prognosen hinfällig 
werden lassen. In Niedersachsen etwa soll 
jede zwölfte Stelle Kürzungen zum Opfer 
fallen. Etwas zynisch könnte man sagen, 
daß die niedersächsische Landesregie- 
rung das Nachwuchsproblem auf ihre 
Weise löst - nämlich auf dem Rücken der 
Hochschulen und der jungen Generation. 
SZ: Müssen die Unis selbst aktiv wer- 
den, um die überlange Dauer der wissen- 
schaftlichen Qualifizierung zu senken? 

Lange: Die Promotions- und Habilita- 
tionszeiten müssen auf angemessenen 
Umfang begrenzt werden. Die Maßstäbe 
haben sich verschoben: Heute reichen 
Doktoranden teilweise Dissertationen ein, 
die noch vor zwanzig Jahren glatt als 
Habilitationsschrift durchgegangen wä- 
ren. Mitunter erscheint es durchaus sinn- 
voll, auf die Habilitation als Berufungs- 
voraussetzung zu verzichten. Das ist al- 
lerdings abhängig von den unterschiedli- 
chen Fachkulturen. Die Hochschulrekto- 
renkonferenz hat bereits 1991 empfohlen, 
in Einzelfällen auch wissenschaftlich 
qualifizierte Berufspraktiker ohne Habili- 
tation zu berufen. 

SZ: Entdecken die Rektoren gar keine 
positiven Seiten des bevorstehenden Ge- 
nerationswechsels ? 

Lange: Der Generationswechsel darf 
nicht als Last, sondern muß als einmalige 
Chance begriffen werden, bei der Neube- 
setzung von Lehrstühlen die Forschungs- 
richtungen zu überprüfen. Durch gezielte 
Berufungspolitik können die Hochschu- 
len neue Schwerpunkte bilden und zu- 
gleich das Studium modernisieren. Aber 
diese Modernisierung ist mit einem Inve- 
stitionsschub verknüpft und bekanntlich 
wird der Bund beim Hochschulbau be- 
reits seit Jahren seiner finanziellen Mit- 
verantwortung nicht mehr gerecht. 



Geschlossene Gesellschaft 

Die Gesellschaft deutscher Akademikerinnen beklagt nicht Diskriminierung, sondern Passivität 



„Es herrscht nur Gejammere!" meint 
Ingeborg Aumüller, Vorsitzende der Ge- 
sellschaft deutscher Akademikerinnen, 
wenn es um die Benachteiligung von 
Frauen an den Hochschulen geht. An 
ihrer „desolaten Lage" seien die Frauen 
jedoch selbst schuld. Devot, passiv, ohne 
Selbstbewußtsein und nachgiebig im 
Übermaß - .so verhielten sich viele Haus- 
frauen und Mütter, die nach jahrelangem 
Studium nun ihrem Partner nörgelnd in 
den Ohren lägen: „Ich habe die gleiche 
Ausbildung wie du, und was i.st daraus 
geworden?" In vielen Fällen - nichts. 

Die Gesellschaft deutscher Akademi- 
kerinnen hat sich nach „unüberwindli- 
chem internen Zwist" vor zwei Jahren 
vom Deutschen Akademikerinnenbund 
(DAB) abgespalten. Der .seit 1926 beste- 
hende DAB zählt 2000 Mitglieder; in der 
jungen GeselLschaft deutscher Akademi- 
kerinnen haben sich inzwischen rund 300 
Frauen organisiert, wobei eine Doppel- 
mitgliedschaft möglich ist. Jeder der bei- 
den Frauenverbände kocht heute sein 
eigenes Süppchen. Themen werden dop- 
pelt bearbeitet. So veröffentlichte der 
DAB 1989 eine Erklärung mit dem Titel 
.Strategien gegen männliche Verdrän- 
gungsmechanismen im akademischen 



Bereich"; die Gesellschaft deutscher Aka- 
demikerinnen zog 1994 mit einem „Pots- 
damer Papier" gleichen Titels nach. 

Ingeborg Aumüller ist allerdings der 
Ansicht, daß nicht die „angebliche Ver- 
drängung", .sondern „die Passivität der 
Frauen" das eigentliche Thema ist. Solan- 
ge Akademikerinnen es nicht schafften, 
Pflichten zu delegieren, brauchten sie 
sich nicht zu beschweren, daß sie Ende 
dreißig auf der Straße stünden. „Die mei- 
sten Frauen denken, nur sie .selber könn- 
ten die Kinder großziehen und den Haus- 
halt besorgen." Typisch für Frauenkarrie- 
ren sei es. erst die Familiengemütlichkeit 
zu beanspruchen, dann aber Beruf und 
Karriere zu wollen. „Doch diese Rech- 
nung geht nicht auf." sagt Aumüller. Die 
promovierte Soziologin und selbständige 
Apothekorin ist überzeugt: „Die Frauen 
sind nicht bereit, für ihre Gleichstellung 
zu bezahlen." Nicht in barer Münze und 
nicht in emotionaler Währung: „Eine 
Trennung von den Kindern kommt für 
viele nicht in Frage". 

Die GeselLschaft deutscher Akademi- 
kerinnen fordert daher kompromißlos, 
daß Frauen gleich nach dem Studium 
eine Vollzeitbeschäftigung annehmen 
müssen. Auch wenn ein Kind käme, müß- 



ten sie nach sechs Monaten wieder ein- 
steigen: „Sonst ist es aus. Mit einer Uni- 
Laufbahn genau.so wie mit jeder anderen 
Berufskarriere." Karriereplanung .sei bei 
den meisten Akademikerinnen ein 
Fremdwort. Daher versucht die Gesell- 
schaft nun verstärkt, bereits die Studen- 
tinnen zu erreichen. „Doch die lachen uns 
aus. wenn wir auf die Vereinbarkeit von 
Beruf und Familie zu sprechen kommen." 
sagt Ingeborg Aumüller. Diese Probleme 
existierten für Studentinnen eben nicht, 
fühlten sie sich im Hörsaal und im Labor 
doch absolut gleichberechtigt 

Vielleicht hängt der geringe Zuspruch 
von Seiten der Studentinnen jedoch auch 
mit dem Auftreten der Gesellschaft zu- 
sammen. Solange sich die Münchner 
Gruppe des Verbandes im Nobelhotel 
„Vierjahreszeiten" trifft, werden sich Stu 
dentinnen wohl kaum eingeladen fühlen. 
„Die Gesellschaft deutscher Akademiker- 
innen ist unter den Studentinnen unbe- 
kannt" heißt es zumindest im Büro der 
Münchner Hoch.schulfrauen beauftrag- 
ten. »Die kennen ja nicht einmal uns " 

CORDUlJ\ MAHNKOPF 



Verantwortlich: H.-H. Holzamer 
Hfdakdon: Jutta Pilgram 



i 



m. 
f. 






AUFBAU 



FRIDAY. November 24, 1995 



Das Urteil von Nürnberg — 50 Jahre danach 

I Von Fritz Weinschenk 

Am 20. November 1945 begann in Nürnberg der erste Kriegs- Crime Tribunal" in Den Haag, der sich mit den Kriegsverbre- 

verbrecherprozeß in der Geschichte, gegen 22 ausgewählte "Spit- chen in Bosnien befqflt. Dennoch — Kriegsverbrecherprozesse 

zen/unkiionäre" des Nazi-Regimes. Das Nürnberger Urteil hat sind immer noch eine Ausnahme in der Geschichte der Interna- 

Hecht geschaffen, das heute aktualisiert wird durch den "War tionalen Rechtssprechung. 



r 






Am 20. November 1945 wurde im gro- 
ßen Gerichtssaiil des ehemuligen Oberlim- 
desgerichis in Nürnberg zum erstenmal im 
Nürnberger Kriegsverbrecherpro»eß ver- 
handelt. Oa.s einigermaßen unv.ersehrte 
Gebelude inmitten der Ruinen der schwer- 
bombardierlen "Hauptstadt der Bewe- 
gung", in der einige Jahre zuvor di<e endlo- 
sen Kolonnen der SA und SS arn Hitler 
vorbeiniarschierien, glich — so, ein 
Zeitzeuge — "einer Festung". 

An diesem Tage legten die AnkiMger 
dem aus Angehörigen der vier Mifejchte 
(USA, Ruüland, l-rankreich und Gjroß- 
briiannien) bestehenden GerichUshof 
die umfangreiche Klageschrift vor: Vier 
Verbrechen wurden den ursprünglicjchen 
24, bei der Hauptverhandlung nuur 22 
Angeklagten, vorgehalten. Auf der 
Anklagebank saßen sorgfältig auusge- 
wiihlte Spitzenfunktionäre "GiJroß- 
deuischlands"; Göring, Hess, Fiunk 
Schacht, JodI, Keitel. Streicher, von 
Ribbentrop. Speer, von Schirach, KKalt- 
enbrunner, Rosenberg, Sauckel, Sex;vss- 
Inquert r^oeniiz, Neurath, Fntsche, ', von 
»apen, Schacht, und von Neurath R Bor- 
mann war angeblich umgekommen. ,. Dr. 

Lxyhane Selbstmord begangen und ci das 
Vcriahren gegen Krupp von bol.thicn- 
Halbach wurde abgetrennt. 

Angeklagt wurden ferner acht Or)rga- 
nisationen; die Reichsregierung, < das 
Korps der politischen Leiter, die 1 SS 
der Sicherheitsdienst (SD), die Gefehei- 
me Staatspolizei (Gestapo), der groroße 
Generalstab und das Oberkommanando 
der Wehrmacht. Die vier Verbrechenenstat- 
bestände umfaßten Vorbereitung ig und 
Durchfühning eines Angriffskrieges,es Ver- 
brechen gegen den Frieden, Kriegsvtsverbrc- 
chen, und Verbrechen gegen die Mcvlensch- 
lichkeit. Zum ersten Mal in der Ge.scjschich- 
te wurde ein Gericht mit einem Saciachver- 
halt konfrontiert, der bis 1945 nichicht exi- 
stierte und noch nie rechtlich erfaßt ißt wor- 
den war; der industrialisierte Massenenmord. 
Zwar kennt die men.schliche Geschschichte 
den Völkermord, das Genozid, die AiiAusrot- 
tung und Sklaverei seit Urzeiten, je jedoch 
' war die von den Nazis erfundene nc und 
durchgeführte Ausrottung von mehr hr als 6 
Mdhonen Menschen in am laufei.fenden 
Band arbeitenden Mordfabriken eine in<i noch'** 
nie erlebte, alle menschlichen Vorste-stellun- ' 
gen übertreffende Art des Massenmömordes ' 
r ?^'^"'^"^'^"i^^^^ Gericht,spsychychiater 
GM. Gilbert, der von Anfang bis Endelnde des 
I rozes.ses ungehinderten Zugang zu zu den 
Angeklagten halte, berichtet in sei seinem 
Nürnberger Tagebuch" über die Reakeaküo- 
nen der Angekläfften auf die Klagescl^schrift- 
Hermann Göring., Keichsmarschall- all' tjnd 
-; oberster, Kommandeur, dpr i Lpftwiftwaffe 
V, Siegerjustiz/', Von Ribbentfop./dc/de? es. 
vom Champagner- Verkäufer zu'hij'Hjilers 
. Außenminister gebracht hatte:_"Ich bld, bii^ die 
verkehne Person." Ernst KaltenboinZncr 
Leiter dfes Reichssicherheitshauptanptamfe; • 
und Chefingenieur des Holocaust: "Ni "Nicht 



schuldig. Ich habe nur meine Pflicht in der 
Spionageabwehr getan und weigerte mich, 
als Fvrsatz für Himmler zu dienen." Hans 
Frank, Hitlers Anwalt und später General- 
gouverneur der besetzten polnischen 
Gebiete: "Dieser Prozeß ist ein von Gott 
gewolltes Weltgericht." Albert Speer, 
Hitler's Architekt, später Reichsminister 
für Bewaffnung und Munition: "Der Pro- 



darunter für Göring, Streicher, Kalten- 
brunner, IVank. Keitel, Ribbentrop, und 
JodI, drei FreisprUche (für Papen, Schacht 
und Iritsche), und drei Lebenslänglich 
(Funk, Hess und Raeder). Der Rest erhielt 
lange Freiheitsstrafen. 

Die Alliierten sorgten dafür, daß der 
Prozeß durch Rundfunk, Pres.se und Film 
weite Verbreitung in der deutschen Bevöl- 




"1 ■' ' * Spitzenfunktionäre 

zeß ist notwendig." Hjalmar Schacht, Prä- 
sident der Deutschen Reichsbank und 
Reichswirtschaftsminister: "Ich verstehe 
überhaupt nicht, warum ich hier angeklagt 
bin." Generalfeldmarschall Wilhelm Kei- 
tel, Chef des Oberkommandos der Wehr- 
macht: "Für einen Soldaten sind Befehle 
Befehle." 

Keiner war schuld, keiner wußte etwas 
vom Holocaust, die Schuld ü-ugen nur Hit- 
ler, Göbbels und Himmler Diejenigen, 
denen die Mitwisserschaft nachgewiesen' 
wurde, behaupteten, ergebnislos prote-\ 
stiert zu haben, keiner war dafür, und. kei- 
ner war eigentlich ein Nazi. Alle wafen 
"kldine l^ute", die nur ihren' Job verrith- ' 
teten und nichts von dem wußten, was 
nebenan geschah. 

Z>ehn Monate später, nach Anhörung 
dutzender von Zeugen, der Vorlage von 
hunderten von Dokumenten (die Doku- 
mentensammlung dieses Prozes.ses füllt 
mehr als 20 Bände) und der Vorführung 
von in den Lagern aufgenommenen Doku- 
mentarfilmen hielten die Ankläger und 
Verteidiger endlich ihre abschließenden 
Plädoyers. Einige davon, besonders das 
Schlußwort des Chefanklägers Jackson, 
gehören zur Weltliteratur 
' 'Äm'l'.' Oktöbdr 1946 erfolgte' 'die j> 
Urteilsverkündung: zwölf Todesurteile, 



auf der Anklagebank' 't '" 

kerung fand, Simultanübertragungen der 
Nürnberger Verhandlungen füllten die 
Lautsprecher der "Volk.sempfänger", die 
noch kurze Zeit zuvor mit Parademärschen 
und "Siegesmeldungen" erschallten, j 

Die Reaktion der Deutschen war unter- 
schiedlich: bei einigen fand das von 
Göring aus dem Gerichtssaal verbreitete 
Klischee der "Siegerjustiz" Anklang, bei 

■ «nderen erweckten die unglaublichen Z.eu- 
genaussagen aufrichtiges Grauen, Scham 

i und 'Trauer.'' Die Juristen beschwerten sich 

< übei^ die "ungerechte" Überforderung der 
deutschen Verteidiger durch das unge- 
wohnte anglo-amerikhhisthe Verfahren, 

' andere rügten die Verletzung des Grund- 
satzprinzips, daß niemand durch im Nadh- 
hinein geschaffene iGesetze bestraft wer- 
den darf ("NuUa poena sine lege" — keine 
Strafe ohne Gesetz). Diese Kreise sahen 
die Anwendung eines speziell für die 
Nazis geschaffenen — so wie sie behaup- 
teten — "Ausnahmegesetzes" als völker- 
rechtlich unzulässig an. K?*'h/' tt' 

Andere Juristen wiederum ginget) -" 
darüber hinweg, da die Taten der Beklag- 
ten auch unter dem damals gültigen deut- 
schen Recht stfafljär'v^aren und üi^Tatl>|i 
stände des Mordes nach dem Strafgeset^- 

"buöh » vunä 1 87 1 r eif üll ten .> Im ' A I Igeinei n^ii 
fühlte sich die Masse des deutschen Vol- 



kes als betrogen, belogen und ausgenutzt. 
Das Nürnberger Urteil hat Recht 
geschaffen, das heute so aktuell ist wie 
vor 50 Jahren. Fs ist unzählige Male in 
allen möglichen Situationen, von allen 
möglichen Parteien über die ganze Welt 
zitiert worden. Gerade heute wird das 
Nürnberger Urteil höchst aktuell: das in 
Den Haag tagende "War Crimes Tribu- 
nal" befaßt sich mit den Kriegsverbre- 
chen und Verbrechen gegen die 
Men.schlichkeit, die vor kurzer Zx^it in 
Bosnien durch Bosnische Kroaten und 
Serben verübt wurden. Die Schilderun- 
gen der in Vukovar und der Krajina 
verübten Verbrechen an wehrlosen 
Menschen könnte aus den Akten des 
Nürnberger Prozeßes stammen. 

Der Grundsatz, der seit dem Nürn- 
berger Urteil fest in der internationalen 
Rechtsordnung verankert ist, besagt, 
daß Verbrechen an wehrlosen Men- 
schen, seien es entwaffnete Kriegsge- 
. fangene, Flüchtlinge, oder Bewohner 
besetzter Gebiete, nur wegen ihrer Reli- 
gion, Rassenzugehörigkeit oder Natio- 
nalität, gleichgültig durch wen oder aus 
welchen Gründen verübt, strafbar sind. 
Genozid, Völkermord, Vergewaltigung 
1 -oder andere Verbrechen an Minderhei- 
ten. Angriffskriege, Überfälle auf 
Nachbarn, und Friedensbruch sind aUc- 
samt seit dem Nürnberger Prozessen 
ein Verbrechen. Es ist zu hoffen, daß 
das Den Haager Tribunal auch die Ver- 
brecher von Jugoslawien fassen und 
i aburteilen kann. Keiner der serbo-kroa- 
tischen Massenmörder kann sich darauf 
berufen, ohne Wissen der Strafbarkeit sei- 
ner Handlungen, nur "Befehle von oben" 
ausgeführt zu haben. 

Das ist die geschichtliche Bedeutung 
des Nürnberger Urteils. 



Nachtrag zu unserem Artikel 
über die Verfolgung jüdischer 
Rechtsanwälte unter den Na/iis, 

Aufbau No. 23, Seite 8i i 

Der' New 'Yorker" Rechtsanwalt, 
Arthur Luxenberg, plant ein bcRon- 
deres Programn| ,üi)er, <las l'henui im 
Frühling nächsten Jahits im Holocaust 
Museum in Waisliin'hloV. i 

. , Er möchte, so , viele Rechtsanwälte 
wie möglich, die von den Einschrän- 
kungen der Nazis betroffen waren, 
sowie deren Angehörige zu dieser Ver- 
anstaltung versammein. 

Ipteressiefte ikönnejD sich direkt bei 
.;i|ijiV ■unlcr,(re).;2i;Zr7i,ö722l, melden. 

■^''^"At\\\\it' LüxfenbfeVg' ist' der Initiator 
der.'! Gedenkausstellung "Days! of 
Shamo"; in d^r fl^ordham University 
Schpoj Pf Law 1^40 W, ,62nd St^pY, 
die am 12.' Oktober eröffnet wurde' 



AUFBAU 



FRIDAY, November 24, 1995 



Das Urteil von Nürnberg — 50 Jahre danach 



Von Fritz Weinschenk 



Am 20. November 1945 begann in Nürnberg der erste Kriegs- 
verbrecherprozeß in der Geschichte, gegen 22 ausgewählte "Spit- 
zenfunktionäre" des Nazi- Regimes. Das Nürnberger Urteil hat 
Recht geschaffen, das heute aktualisiert wird durch den "War 



Crime Tribunal" in Den Haag, der sich mit den Kriegsverbre- 
chen in Bosnien befaßt. Dennoch — Kriegsverbrecherprozesse 
sind immer noch eine Ausnahme in der Geschichte der Interna- 
tionalen Rechtssprechung. 



Am 20. November 1945 wurde im gro- 
ßen Gerichtssaal des ehemaligen Oberlan- 
desgerichts in Nürnberg zum erstenmal im 
Nürnberger Kriegsverbrecherprozeß ver- 
handelt. Das einigermaßen unversehrte 
Gebäude inmitten der Ruinen der schwer- 
bombardierten "Hauptstadt der Bewe- 
gung", in der einige Jahre zuvor die endlo- 
sen Kolonnen der SA und SS an Hitler 
vorbeimarschierten, glich — so ein 
Zeitzeuge — "einer Festung". 

An diesem Tage legten die Ankläger 
dem aus Angehörigen der vier Mächte 
(USA. Rußland. Frankreich und Groß- 
britannien) bestehenden Gerichtshof 
die umfangreiche Klageschrift vor: Vier 
Verbrechen wurden den ursprünglichen 
24, bei der Hauptverhandlung nur 22 
Angeklagten, vorgehalten. Auf der 
Anklagebank saßen sorgfältig ausge- 
wählte Spitzenfunktionäre "Groß- 
deulschlands": Göring, Hess. Funk, 
Schacht, JodI, Keitel, Streicher, von 
Ribbentrop. Speer, von Schirach, Kalt- 
enbrunner. Ro.senbcrg. Sauckel, Seyss- 
Inquert Doenitz, Neurath, Fritsche, von 
Papen, Schacht, und von Neurath. Bor- 
niann war angeblich umgekommen, Dr. 
Ley hatte Selbstmord begangen und da.s 
Verfahren gegen Krupp von Bohlen- 
Halbach wurde abgetrennt. 

Angeklagt wurden ferner acht Orga- 
nisationen: die Reichsregierung, das 
Korps der politischen Leiter, die SS, 
der Sicherheitsdienst (SD), die Gehei- 
me Staatspolizei (Gestapo), der große 
Generalslab und das Oberkommando 
der Wehrmacht. Die vier Verbrechenstat- 
bestände umfaßten Vorbereitung und 
Durchführung eines Angriffskrieges, Ver- 
brechen gegen den Frieden, ICriegsverbre- 
chen, und Verbrechen gegen die Mensch- 
lichkeit. Zum ersten Mal in der Geschich- 
te wurde ein Gericht mit einem Sachver- 
halt konfrontiert, der bis 1945 nicht exi- 
stierte und noch nie rechtlich erfaßt wor- 
den war: der industrialisierte Massenmord. 
Zwar kennt die menschliche Geschichte 
den Völkermord, das Genozid, die Ausrot- 
tung und Sklaverei .seit Urzeiten, jedoch 
war die von den Nazis erfundene und 
durchgeführte Ausrottung von mehr aFs 6 
Millionen Menschen in am laufenden 
Band arbeitenden Mordfabriken eine noch 
nie erlebte, alle menschlichen Vorstellun- 
gen übertreffende Art des Massenmordes. 
Der amerikanische Gerichtspsychiater 
G.M. Gilbert, der von Anfang bis Ende des 
Prozesses ungehinderten Zugang zu den 
Angeklagten hatte, berichtet in seinem 
"Nürnberger Tagebuch" über die Reaktio- 
nen der Angeklagten auf die Klageschrift: 
Hermann Göring, Reichsmarschall -Und 
oberster Kommandeur der Luftwaflfe: 
"Siegerjustiz." Von Ribbeqtrop, der es 
vom Champagner- Verkäufer zu Hitltrs 
Außenminister gebracht hatte: "Ich.bjn die 
verkehrte Person." Ernst Kaltenbrunner, 
Leifer dös Relchssicherheitshaüptamtes 
und Cheflngenieur des Holocaust: "Nicht 



schuldig. Ich habe nur meine Pflicht in der 
Spionageabwehr getan und weigerte mich, 
als Ersatz für Himmler zu dienen." Hans 
Frank, Hitlers Anwalt und später General- 
gouverneur der besetzten polnischen 
Gebiete: "Dieser Prozeß ist ein von Gott 
gewolltes Weltgericht." Albert Speer, 
Hitler's Architekt, später Reichsminister 
für Bewaffnung und Munition: "Der Pro- 



darunter für Göring, Streicher, Kalten- 
brunner, Frank, Keitel, Ribbentrop, und 
JodI, drei Freisprüche (für Papen, Schacht 
und lYitsche), und drei Lebenslänglich 
(Funk, Hess und Raeder). Der Rest erhielt 
lange Freiheitsstrafen. 

Die Alliierten sorgten dafür, daß der 
Prozeß durch Rundfunk, Presse und Film 
weite Verbreitung in der deutschen Bevöl- 




Spitzenfunktionäre auf der Anklagebank 



zeß ist notwendig." Hjalmar Schacht, Prä- 
sident der Deutschen Reichsbank und 
Reichswirtschaftsminister: "Ich verstehe 
überhaupt nicht, warum ich hier angeklagt 
bin." Generalfeldmarschall Wilhelm Kei- 
tel, Chef des Oberkommandos der Wehr- 
macht: "Für einen Soldaten sind Befehle 
Befehle." 

Keiner war schuld, keiner wußte etwas 
vom Holocaust, die Schuld trugen nur Hit- 
ler, Göbbels und Himmler Diejenigen, 
denen die Mitwisserschaft nachgewiesen 
wurde, behaupteten, ergebnislos prote- 
stiert zu haben, keiner war dafür, und kei- 
ner war eigentlich ein Nazi. Alle waren 
"kleine Leute", die nur ihren Job verrich- 
teten und nichts von dem wußten, was 
nebenan geschah. 

Zehn Monate später, nach Anhörung 
dutzender von Zeugen, der Vorlage von 
hunderten von Dokumenten (die Doku- 
mentensammlung dieses Prozesses füllt 
mehr als 20 Bände) und der Vorführung 
von in den Lagern aufgenommenen Doku- 
mentarfilmen hielten die Ankläger und 
Verteidiger endlich ihre abschließenden 
Plädoyers. Einige davon, besonders das 
Schlußwort des Chefanklägers Jackson, 
gehören zur Weltliteratur. 

Am I: Oktober 1946 irfolgtc die 
Urteilsverkündung: zwölf Todesurteile, 



kerung fand. Simultanübertragungen der 
Nürnberger Verhandlungen füllten die 
Lautsprecher der "Volk.sempfänger", die 
noch kurze Zeit zuvor mit Parademärschen 
und "Siegesmeldungen" erschallten. 

Die Reaktion der Deutschen war unter- 
schiedlich: bei einigen fand das von 
Göring aus dem Gerichtssaal verbreitete 
Klischee der "Siegerjustiz" Anklang, bei 
anderen erweckten die unglaublichen Zeu- 
genaussagen aufrichtiges Grauen, Scham 
und Trauer. Die Juristen beschwerten sich 
über die "ungerechte" Überforderung der 
deut.schen Verteidiger durch das unge- 
wohnte anglo-amerikanische Verfahren, 
andere rügten die Verletzung des Grund- 
satzprinzips, daß niemand durch im Nach- 
hinein geschaffene Gesetze bestraft wer- 
den darf ("Nulla poena sine lege" — keine 
Strafe ohne Gesetz). Diese Kreise sahen 
die Anwendung eines speziell für die 
Nazis geschaffenen — so wie sie behaup- 
teten — "Ausnahmegesetzes" als völker- 
rechtlich unzulässig an. 

Andere Juristen wiederum gingen 
darüber hinweg, da die Taten der Beklag- 
ten auch unter dem damals gültigen deut- 
schen Recht strafbar waren und die Tatbe- 
stände des Mordes nach dem Strafgesetz- 
buch von 1871 erfüllten. Im Allgemeinen 
fühlte sich die Masse des deutschen Vol- 



kes als betrogen, belogen und ausgenutzt. 
Das Nürnberger Urteil hat Recht 
geschaffen, das heute so aktuell ist wie 
vor 50 Jahren. Es ist unzählige Male in 
allen möglichen Situationen, von allen 
möglichen P;u-teien über die ganze Welt 
zitieri worden. Gerade heute wird das 
Nürnberger Urleil höchst aktuell: das in 
Den Haag tagende "War Crimes Tribu- 
nal" befaßt sich mit den Kriegsverbre- 
chen und Verbrechen gegen die 
Menschlichkeit, die vor kurzer Zeit in 
Bosnien durch Bosnische Kroaten und 
vSerben verübt wurden. Die Schilderun- 
gen der in Vukovar und der Krajina 
verübten Verbrechen an wehrlosen 
Menschen könnte aus den Akten des 
Nürnberger Prozeßes stammen. 

Der Gmndsatz, der seil dem Nürn- 
berger Urteil fest in der internationalen 
Rechtsordnung verankert ist, besagt, 
daß Verbrechen an wehrlosen Men- 
schen, seien es entwaffnete Kriegsge- 
fangene, Flüchtlinge, oder Bewohner 
besetzter Gebiete, nur wegen ihrer Reli- 
gion, Rassenzugehörigkeit oder Nalio- 
nalilät, gleichgültig durch wen oder aus 
welchen Gründen verübt, strafbar sind. 
Genozid, Völkermord, Vergewaltigung 
oder andere Verbrechen an Minderhei- 
ten, Angriffskriege, Überfälle auf 
Nachbarn, und Friedensbruch sind alle- 
.saml seit dem Nürnberger Prozessen 
ein Verbrechen. Es ist zu hoffen, daß 
das Den Haager Tribunal auch die Ver- 
brecher von Jugoslawien fassen und 
aburteilen kann. Keiner der .serbo-kroa- 
tischen Massenmörder kann sich darauf 
berufen, ohne Wissen der Strafbarkeil sei- 
ner Handlungen, nur "Befehle von oben" 
ausgeführt zu haben. 

Das ist die geschichtliche Bedeutung 
des Nürnberger Urteils. 



Nachtrag zu unserem Artikel 
über die Verfolgung jüdischer 
Rechtsanwälte unter den Nazis, 
Außau No. 23, Seite 8: 

Der New Yorker Rechtsanwalt, 
Arthur Luxenberg, plant ein beson- 
deres Programm über das Thema im 
Frühling nächsten Jahres im Holocaust 
Museum in Wa.shingtb|i. 

Er möchte so viele Rechtsanwälle 
wie möglich, die von den Einschrän- 
kungen der Nazis betroffen waren, 
sowie deren Angehörige zu dieser Ver- 
anstaltung versammeln. 

Interessierte können sich direkt bei 
ihm, unter Tel. 212-7207221, melden. 

Arthur Luxenberg ist der Initiator 
der Gedenkaussteliifng "Days of 
Shamc", in der Fordham University 
School of Law, 140 W. 62nd St., NY, 
die am 12. Oktober eröffnet wurde. 



FRIDA Y, November 24, 1995 



AUFBAU 



fun- 
ang 
Kal- 
rset- 
ich- 

4S- 



tr. 



Am 7. November 1995 wurde in der 
Aula der Volkshochschule Bremerhaven 
feierhch die Eröffnung der Ausstellung 
über den Äufhuu begangen. 

Dr. Wolfgang Weiß, Dezernent für 
Schule und Kultur, erläuterte den vielen 
interessierten Gasten Geschichte und 
Bedeutung dieser einzigartigen deutsch- 
sprachigen Zeitung aus New York. Er erin- 
nerte auch an die einstige Bedeutung Bre- 
merhavens als Auswandererhafen. Für 
viele Emigranten war Bremerhaven die 
letzte Station in der "Alten Welt" gewesen, 
darunter auch jüdische Flüchtlinge aus 
Nazi-Deutschland. Für manche von ihnen 
wurde der Aujhau ein "treuer Gefahrte" in 
der "Neuen Welt" und ein Forum in der 
Muttersprache. 

Werner A. Stein, Vorstandsvorsitzender 
des Aufbau, erinnerte in seiner Ansprache 
an die Reichspogromnacht vom 9. Novem- 
ber 1938: Auch in Bremerhaven wurde an 
diesem lag die Synagoge in Brand 
gesteckt, jüdische Bürger mißhandelt und 
verschleppt, jüdische Geschäfte und Woh- 
nungen geplündert und zerstört. Er zitierte 
den Dichter Heinrich Heine, der bereits im 
Jahre 1820 prophezeite: "Wo man Bücher 
verbrennt, verbrennt man am Ende auch 
Menschen." 

Der Bindung und Verbindung der Ver- 
sprengten und- Verjagten der Nazi-Zeit 
wurde der Aujhau ein wichtiger Gefährte 
im Exil und vielseitiger Helfer Er vermit- 
telte Arbeit und Wohnraum, gab Rat in 
Rechtsangelcgenheiten, erteilte Sprachun- 
terricht, gab Hinweise auf Geschäfte mit 
"Waren deutscher Art". Die Rubrik: 
"Gesucht wird..." spielte eine wichtige 
Rolle bei der Familienzusammenführung. 

.Stein helonle ebenfalls, daß die /eilung 
vielen genüchtcten IntellektuelJen aus 
Deutschland ein Forum in der Mutterspra- 
che bot, so z.B. Thomas Mann, Franz Wer- 
fel, Lion Feuchtwanger, Albert Einstein 
und er zitierte den Dichter Hans Sahl, der 
über Prag, Paris, Miu-seille schließlich von 
Lissabon aus in die Vereinigten Staaten 
flüchtete. Sahl schreibt: "Ich habe mein 
Bett oft gewechselt, meine Sehnsucht nach 
exotischen Gegenden ist auf eine Wei.se 
befriedigt worden, die alle Erwartungen 
übertraf. Ich habe viele Länder bereist, und 
in vielen Sprachen gelernt, meine Gedan- 
ken zu verbergen. Ich ging mit den Hungri- 
gen schlafen und wenn ich am Morgen 
aufwachte, hörte ich die Schritte meiner 
Verfolger und versteckte mich." 

Die Zuhörer erfuhren, daß die Bedeu- 
tung des Aufhau nach dem 2. Weltkrieg 



Aufbau-Ausstellung in Bremerhaven eröffnet 




AUFBAU 




sogar noch zunahm. Die Zeitung engagier- 
te sich u.a. für die Wiedergutmachung und 
initiierte das Städtebesucherprogramm, 
das tausende von jüdischen Emigranten zu 
Besuch in ihre alten Heimatstädte führte. 
Abschließend verlieh er der Hoffnung 
Ausdruck, daß die Zeitung nicht nur "ein 
unreißbares Band mit der Vergangenheit" 
bleibt, sondern in der Zukunft durch den 
engagierten Brückenbau zwischen den 
Vereinigten Staaten, Deut.schland und 
Israel auch neue Leser gewinnen wird. 

Nach den Ansprachen nutzten viele der 
Besucher die Gelegenheit, die im Vorraum 
der Aula und in den Gängen prä.sentierte 
/4M/7)aM-Ausstellung zu betrachten. Die 
60jährige Geschichte des Aufhau wurde 
auf 60 Tafeln dokumentiert, auf denen 
Leitartikel, Anzeigen, Ratschläge, 
Gedichte und Erzählungen geklebt waren, 
die in den letzten Jahren erschienen. 

Nach München und Leipzig ist Bremer- 
haven die dritte Station in Deutschland — 
Bremen und Wien werden folgen. 

Prof. Han.s-Albert Walter hielt im 
Rahmen der Ausstellung am 9. November 
einen Vortrag über Leben und Werk von 
Arnold Zweig, den er den am meisten ver- 
kannten deutschen Schriftsteller des 20. 
Jahrhunderts nannte. Am 14. November 
führte Diethelm Knauf .seinen Film über 
die Lower li^st Side Manhattans vor Die 
Zu.schauer erhielten Einblicke in das typi- 
.sche Einwandererviertel New Yorks. Der 
15. November widmete sich einem Syn- 
agogenbesuch in Bremen. Der Rabbiner 




AUFBAU 




.- . s ■■ .. »>j*' 


'■■ •■■ ■■*' ' ^Aim* 




M 





Prof. Dr. Barslai erläuterte den Teilneh- 
mern die Bedeutung und Funktion eines 
jüdischen Gotteshau.ses und beantwortete 
an.schließend unzählige Fragen aus dem 
Publikum. 

Bis zum I. Dezember ist die Außau- 
Ausstellung noch in der Volkshochschule 
Bremerhaven zu besichtigen und das Rah- 
menprogramm beinhaltet noch drei weite- 
re interes.sante Veranstaltungen. So werden 
Günter Schmitt von der Jüdischen 
Gemeinschaft in Bremerhaven und der 
Historiker Dr. Uwe Weiher, moderiert von 



Claus Weiß, am 21. November über die 
Stationen Jüdischen I^bens vom 19. Jahr- 
hundert bis heute in Wesermünde und Bre- 
merhaven Näheres berichten. 

Am 27. November wird Karin Schulz, 
wissenschaftliche Mitiu-beitenn beim lör- 
derverein Deutsches Auswanderermuseum 
und Vorsitzende der Deutsch- Israeli.schen 
Ge.sellschaft in Bremerhaven, an Hand von 
Dias die jüdische Auswanderung aus Ost- 
europa bis zum 1 . Weltkrieg veranschauli- 
chen, den Bogen zur jüdi.schen Auswande- 
rung während der NS-Zeit spannen, um 
ab.schließend die Bedeutung und Funktion 
der Exilzeitung Aufhau während einer 
Führung zu verdeutlichen. 

Letzte Veranstaltung im Rahmen des 
A/<//)üM-Ausstellungsprojektes wird ein 
Vortrag von Dr Juliane Wetzel vom Zen- 
trum für Antisemitismusforschung Berlin 
bilden. Sie wird zum Thema "Fluchtpunkt 
New York — Jüdische Auswanderung aus 
Deutschland während der NS-2^it" spre- 
chen. Einige der von ihr namentlich 
erwähnten Emigranten schrieben auch für 
den Auflyau. 

Der Veran.staltungszyklus wurde kon- 
tinuierlich von Presse, Funk und Fernse- 
hen begleitet und Werner A. Stein gab 
mehrere Interviews. So hat die Ausstellung 
mit ihrem Rahmenprogramm sicherlich 
dazu beigetragen, den Aufhau einem brei- 
teren Publikum vorzustellen und vielleicht 
könnten somit auch neue lujscr gewonnen 
werden. 

Bre. 




A Present to Remember and Cherish 

Direct from one of Germany's finest specialty bakers, just in time for the Holidays, comes 
one of the old world's most celebrated holiday gifts... a Holiday Chest füll of Nürnberger 
Lebkuchen and Stollen. Prepared by the baking house of E. Otto Schmidt using 6()()-year- 
old, carefully guarded, ü^aditional recipes. the.se German culinary delights are guaranteed 
to be ab.solutely fresh and irresistible. 

Your Holiday Chest conUiins 15 individually boxed varieties of Lebkuchen, Stollen and 
olher specialties ready to share with family and friends. Coveted and cherished by collec- 
tors around the world, the luxuriously embossed decorative Holiday Chest is imprinted 
with artwork taken from an ISth Century copper engraving by Johann Delsenbach tilled 
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THE NEW YORK TIMES, SUNDAY. NOVEMBER 19, 1995 



B 



»■ 



the Nation 



»1 • 



Nuremberg Isn't 
Repeating Itself 



By NEIL A.LEWIS 



Washington 

AS negotiatois Shuttle among the Bal- 
kan factions housed along the 
i wings of a quadrangle on an Air 
i Force base in Dayton, Ohio, the talk 
has mostly been over territory, sovereignty 
. and troop deploymenls, the difficult but 
basic stuff of forging a peace. 

But looming at the edge of the talks has 
always been one of the most profound moral 
and ethical issues of the 20th Century: how 
to deal with atrocities of wartime. 

Most people would think an appropriate 
response was provided 50 years ago at Nu- 
remberg when the surviving Nazi leaders 
were tried for crimes against humanity. Not 
only did the trials set out admirable princl- 
ples but they provided a dramatic precedent 
for aciually meting out punishment. 



The precedent Hves 
on. So does genocide 
— now, in the Balkans. 



Of the 22 defendants, 12 were sentenced to 
be hanged (only 10 were; Martin Bormann 
wps tried in absentia and Hermann Göring 
avoided the gallows by swallowing a con- 
realed Cyanide capsule). Three were acquit- 
te^ and the rest served various jail terms, 
the longest being that of Rudolf Hess, whö 
lived out his life m Spandau prison. 

Moreover, Nuremberg provided a legal 
context to emphasize that the sentences 
were not just a palatable modern Version of 
conquering warriors br inging the defealed 
leaders home in chains to be executed, but 
an exercise of due process in the name of 
bumanity. 

Yet the 50th anniversary comes at an 
uncomforlable moment. Were it not for the 
Balkan conflict, the commemoraiion would 
no doubt be a celebration, an event of self- 
congratulation about the continuing forward 
nnovement of civilizaiion. 



But the World has already seen genocide 
go largely unpunished in Rwanda and Cam- 
bodia and it is becoming increasingly appar- 
eiit that the principlcs of Nuremberg are not 
gomg to be applied easily to the Balkans, an 
area that is the setting for the first interna- 
tional war crimes irial since World War II. 
The Nuremberg principles are straight- 
forward: Even in war, there are limits as to 
what governments may use as means of 
killing and what they may do even to their 
own Citizens; such issues may appropriate- 
ly be judged by an international tribunal, 
and, most important, those who gave the 
Orders and those who carhed them out both 
bear füll responsibilily. 

But the application of those principles to 
the Nazi leaders (and those of Imperial 
Japan as well) has proven to be an idealized 
rarity. Nuremberg remains "essentially a 
product of its special time and circum- 
stance," Bernard D. Meltzer, who was an 
assistant prosecutor at Nuremberg, wrote 
in a speech to be delivered at the University 
of Chicago on Tuesday, marking a half- 
century since the first Nuremberg trial 
opened on Nov. 21, 1945. 

Indeed, the uniqueness of that moment 
became apparent very quickly; subsequent 
trials of lesser Nazis at Nuremberg pro- 
duced far less dramatic punishments, in 
part because the former Allies were girding 
for the cold war. 

Many of the figures in the Balkans, partic- 
ularly Bosnian Serb leaders, have been 
charged with war crimes by a United Na- 
tions-sponsored tribunal. As a result, the 
debate is now about which is a higher virtue, 
ending a war or bringing detestable killers 
to account. 

A Revealing Snapshot 

To understand why the Balkan Situation 
does not easily yield to the lessons of Nu- 
remberg, one has only to look at the familiär 
black and white photos of the 21 Nazi lead- 
ers in the dock, wearing headphones to hear 
ihe German translation of the proceedings. 

What IS notable is that they are in the 
dock. The war is over, there is a clear Victor 
and those charged are in custody. 

In the Balkans, the war carries on and 
those charged as war crimjnals are still 




At Nuremberg, 50 years ago; missing is Rudolf Hess, who in other photos appears between Göring and von Ribbentrop. 



A«s<Kialod Prps» 



conducting the war. Heading the list are 
Radovan Karadzic, the President of the self- 
siyied Bosnian Serb nation, and his chief 
military Commander, Gen. Ralko Mladic. 
Forty-one other Bosnia Serbs and three 
Croats have been indicied. 

Last week, the tribunal in the Hague 
issued a fresh mdictment against Mr. Mla- 
dic and Mr. Karadzic, describing new geno- 
cidal acts they are accused of responsibility 
for. It describes "ihousands of men execut- 
ed and buried in mass graves, hundreds of 
men buried alive, men and women mutilat- 
ed and slaughtered, children killed before 
their mothers' eyes, a grandfather forced to 
eat the liver of his own grandson." 

Should these people be given some sort of 
amnesty if that is the price of peace and the 
ending of further atrocities? 

"It would be like Hitler offering to negoti- 
ate a peace and amnesty near the end of the 
war after many of the atrocities have al- 
ready been committed," said Harold 
Hongju Koh, a professor of law at Yale 
University and a vigorous advocate that 
war criminals must be held accountable. 

Richard Goldstone, the South African Ju- 
rist who is the chief pro.secutor at the tribu- 



nal, has exhorted negotiators to refuse any 
agreement that does not include putting Mr. 
Karadzic and Mr. Mladic in the dock. The 
United States has, at least publidy, held to 
that Position. 

Does This Precedent Deter? 

Professor Koh lamented the possibility 
that the pressure to achieve a peace may 
overwhelm the need to hold war criminals 
accountable. "Nuremberg established the 
idea that peace without justice is an incom- 
plete peace," he said. "Are we building on 
Nuremberg and advances in civilization or 
just reliving history?" 

As a deterrent to future horrors, he said, 
certain kinds of atrocities have to be 
deemed beyond the possibility of amnesty. 

The world's main advocate of the necessi- 
ty of compromise and even amnesty is 
Jimmy Carter. The former President and 
freelance peace negotiator has made it his 
trademark to deal with leaders who have 
blood on their hands as men of honor, in 
Order to conclude a peace. 

Robert Pastor, an aide to the former 
President at the Carter Center for Peace in 



Atlanta, said of Bosnia: "No intelligent per- 
son can fail to recognize there is a almost 
always a iradeoff in this kind of setting. The 
fact is that often the person being charged 
with violations happens to be the leader of 
the country. He holds the cards." 

Mr. Pastor said a negotiator may ihink he 
can keephis hands clean, "but thenyou may 
be responsible for further atrocities." On 
the other band, he said, "if one can put an 
end to any inhumane Situation, one should 
be prepared to accept some form of amnes- 
ty." 

Mr. Pastor said that in place of punish- 
ments, it is, however, important, to have 
some sort of a truth commission to render 
an accounting of what happened. 

That is a good deal less than what Presi- 
dent Harry S. Truman apparently had in 
mind m 1946 when he wrote a letter of 
appreciation to Robert Jackson, an associ- 
ate Justice of the Supreme Court who was 
the Chief American prosecutor at the begin- 
ning of the Nuremberg trials, to thank him 
for his Service. The trials, President Tru- 
man said, should "stand in history as a 
beacon to warn international brigands of the 
fate that awaiis them." 



Samstag, 15. Juli 1995, Nummer 162 



BILDER U]\D ZEITEN 



Frankfurter Allgemeine Zeitung 



Die verkehrte Krone 

Ein abgeschlossenes Kapitel unserer Literatur, düster und glanzv« -1 , tragisch und triumphal - Die Juden • Von Marcel Reich-Ranicki 



Der Geschichte der Juden in der 
deutschen Literatur mangelt es 
nicht an Siegen, an wahren Triumphen. 
Ein Jude aus Düsseldorf ist der erfolg- 
reichste deutsche Lyriker nach Goethe. 
Ein Jude aus Prag hat die moderne Li- 
teratur geprägt - die der Deutschen 
und die der ganzen Welt. Und unter den 
populärsten Erzählern des neunzehn- 
ten wie des zwanzigsten Jahrhunderts 
gibt es nicht wenige Juden. Doch allen 
Erfolgen zum Trotz ist dieses Kapitel 
der Literaturgeschichte so dunkel wie 
deprimierend: Wir haben es mit einer 
Leidensgeschichte ohnegleichen zu 
tun. Dabei geht es nicht um Fehlschla- 
ge und Niederlagen - sie gehören im- 
mer und überall zur Biographie derer, 
die öffentlich wirken. Ich meine viel- 
mehr die fortwährenden Erniedrigun- 
gen, die grausamen Demütigungen, die 
keinem deutschen Juden, welchen Be- 
ruf er auch ausübte, erspart geblieben 
sind; nur empfindet sie ein Schriftstel- 
ler stets doppelt und dreifach. 

Am Anfang dieser jüdischen Passi- 
onsgcschichte sehen wir zwei in jeder 
Hinsicht ungewöhnliche Menschen, ei- 
nen Mann und eine Frau. Er sehr klein 
und verwachsen, ja bucklig, sie eben- 
falls klein und nicht gerade schön. 
Beide standen im Mittelpunkt des 
geistigen Lebens von Berlin und von 
Preußen. Beide sind Jahrhundertfigu- 
ren der deutschen Kultur geworden 
und geblieben. Und beide verkörpern 
wie niemand vor ihnen und wie kaum 
jemand nach ihnen den Glanz und zu- 
gleich das Elend des jüdi-schen Daseins 
in Deutschland. 

Im Oktober 1743 meldet sich am Ro- 
senthaler Tor der Stadt Berlin ein vier- 
zehnjähriger Knabe, der Sohn des 
Dessauer Synagogendieners und 
Thoraschreibers. Aus seiner Geburts- 
stadt Dessau zu Fuß gekommen, bat er 
um Einlaß nach Berlin, der ihm auch 
bewilligt wurde. So findet sich im Jour- 
nal für diesen Oktobertag 1743 die 
knappe Eintragung: „Heute passierten 
das Rosenthaler Tor sechs Ochsen, sie- 
ben Schweine, ein Jude." Warum hat 
ihn der Wachtposten damals nicht 
abgewiesen? Vielleicht deshalb, weil 
ihn der ärmliche und jugendliche 
Neuankömmling mit einer denkwürdi- 
gen Antwort verblüffte. Denn befragt, 
was er in Berlin wolle, sagte der Knabe, 
jedem alls der Legende zufolge, nur eui 
einziges Wort: „Lernen." Er hat dann in 
Berlin in kurzer Zeit tatsächlich viel ge- 
lernt und sehr bald andere gelehrt. 




Alfred Döhlin 



Die Zeitgenossen haben ihn, Moses 
Mendelssohn, als Autorität höchsten 
Ranges anerkannt: Er wurde einer der 
bedeutendsten Denker jener Epoche, 
in der Kant und Lessing wirkten. Und 
er wurde es, ohne je, wie er mit leisem 
Stolz betonte, auf einer Universität ge- 
wesen zu sein oder ein Collegium 
gehört zu haben. Erstaunlich ist es also 
nicht, daß der Autodidakt gerne Mit- 
glied der Preußischen Akademie der 
Wissenschaften geworden wäre. Das 
wäre ihm auch beinahe geglückt, nur 
hatte der König, Friedrich IL, Ein- 
spruch erhoben. Wichtiger noch: 
Mendelssohn hatte gehofft, er könne 
ein gleichberechtigter Bürger des 
preußischen Staates werden. Aber er 
hatte die Situation allzu optimistisch 
eingeschätzt: So überwältigend seine 
wissenschaftlichen Leistungen auch 
waren - der jüdische Philosoph wurde 
nach wie vor als wunderlicher Fremd- 
ling empfunden, als sonderbares Wesen 
angestaunt. Von Gleichberechtigung 
konnte keine Rede sein: Man hat ihn 
gerühmt und zugleich geschmäht, ge- 
priesen und gequält. 

Auch die andere kleine Person, die 
das Kapitel der Juden in der Geschich- 
te der deutschen Literatur eröffnet, Ra- 
hel Levin, die spätere Rahel Varnha- 
gen, kam, wie Mendelssohn, aus der Ju- 
dengasse und aus einer orthodoxen Fa- 
milie, auch sie sprach in ihrer Jugend 
das noch im achtzehnten Jahrhundert 
gebräuchliche Judendeutsch, das mit 
hebräischen Lettern geschrieben wur- 
de. Sie indes war doppelt benachteiligt, 
doppelt geschlagen - als Frau und als 
Jüdin. Mit den Grenzen, die dem weib- 
lichen Dasein gesteckt waren, wollte sie 
sich auf keinen Fall abfinden. Und mit 



dem Judentum? Mit aller Kraft, über 
die sie verfügte, hat sie sich gegen ihre 
Abstammung empört und aufgelehnt: 
Fliese Rebellion bildet, auch wenn Ra- 
hel es nicht selten für richtig hielt, sich 
mit Winken und mit Andeutungen zu 
begnügen, das zentrale Thema, das 
Leitmotiv ihrer Schriften. 

Sie war eine selbstbewußte, eine 
hochintelligente und überaus geistrei- 
che Frau. Aber eine Schriftstellerin war 
sie nicht, sie wollte es auch nie sein. Sie 
hat Tagebuchaufzeichnungen hinterlas- 
sen und Hunderte, Tausende von Brie- 
fen. Es sind kulturgeschichtliche Doku- 
mente von großem Wert. Doch bewei- 
sen sie, daß Raheis Deutsch auch noch 
in ihren späten Tagen nicht makellos 
war und daß ihr enormer Ehrgeiz, viel- 
leicht eben deshalb, nicht auf geistige 
und literarische Leistungen gerichtet 
war, sondern vor allem auf gesellschaft- 
liche Erfolge. Denn sie wollte ihre Her- 
kunft um jeden Preis abstreifen - wie 
man ein überflüssiges Kleidungsstück 
wegwirft. In einem Brief spricht sie von 
dem Unglück ihrer „falschen Geburt". 
1795 gibt sie einem jungen Juden, 
David Veit, einen Ratschlag: „Kennt- 
nisse sind die einzige Macht, die man 
sich verschaffen kann, wenn man sie 
nicht hat, Macht ist Kraft, und Kraft ist 
alles." An nichts anderes denkt sie als 
an eine Möglichkeit, die „falsche Ge- 
burt" zu überwinden und sich von dem 
uralten Fluch zu befreien. Sie ist es satt, 
unentwegt gekränkt und beleidigt zu 
werden. Die Gleichberechtigung will 
sie - wie Moses Mendelssohn. Was sie 
David Veit empfohlen hat, das soll auch 
sie selber retten: Sie brennt darauf, sich 
Kenntnisse zu erwerben, sich Wissen 
anzueignen. Nur so lasse sich - davon 
ist sie überzeugt - die zwischen den Ju- 
den und den NichtJuden bestehende 
Kluft zumindest verringern. 

Mit ihrem Salon in der Dachstube 
protestierte sie gegen die überlieferten 
Schranken. Denn dort, in der Jäger- 
straße, tnyfth sich Männer und Frauen, 
adlige Offiziere und bürgerliche Intel- 
lektuelle, Philosophen und Schauspie- 
ler und schheßlich und vor allem: Chri- 
sten und Juden. Oft nennt man die Na- 
men jener, die in diesem Salon ver- 
kehrten - es sind die besten der Epo- 
che: von Jean Paul und Friedrich Schle- 
gel bis zu Chamisso und Brentano. Und 
m ihrer iVlitte die umsichtige, die impo- 
nierende Gastgeberin. 

Die Berühmtheiten - sie folgten den 
Einladungen offenbar immer und sehr 
gern. Doch ist nicht bekannt, daß einer 
von ihnen je Rahel Levin zu sich einge- 
laden hätte. Diese oft attraktiv geschil- 
derten Berliner Salons - es waren in 
der Tat wichtige Zentren des geistigen 
Lebens. Aber nicht von der Gleichbe- 
rechtigung der Juden zeugten sie, son- 
dern bloß von ihrem dringenden 
Wunsch, mit gebildeten NichtJuden zu- 
sammenzukommen und von ihnen an- 
erkannt zu werden. Für die christlichen 
Freunde war Rahel letztlich eine Aus- 
nahmejüdin, eine nichtjüdischc Jüdin, 
auf jeden Fall eine Fremde. Daß sie als 
emanzipierte Mitbürgerin leben wollte, 
konnte man schon begreifen. Abson- 
derlich blieb es dennoch: Ähnlich wie 
Moses Mendelssohn wurde auch sie 
natürlich nicht geliebt, wohl aber ange- 
staunt; ähnlich wie ihn empfand man 
auch sie als ein reizvolles, ein durchaus 
originelles, jedoch exotisches Wesen. 

Einige Jahre lang war die ehrgeizige 
Rahel eine zentrale und gefeierte, eine 
kleine und doch beinahe majestätische 
Figur, eine orientalische Königin 
mitten im preußischen Berlin. Ja, eine 
Herrscherin war sie, aufrichtig bewun- 
dert, aber insgeheim spöttisch be- 
lächelt. Als sie älter geworden und ihr 
Ruhm längst verblaßt war. bildete sie 
sich ein, sie würde immer noch jung 
aussehen. Ihre weiße Haartracht täu- 
.sche nur die Menschen, sie schien ihr 
bloß eine „verkehrte Krone auf mei- 
nem Schicksal". Aber auch zu Zeiten, 
als der Erfolg sie berauschte, war ihre 
Situation schon paradox. Der unsicht- 
bare Kopfschmuck, den sie stolz trug, 
glich einer falschen, eben einer „ver- 
kehrten Krone". Lind alle waren sich 
dessen bewußt - ihre Gäste und Freun- 
de, ihre Neider und Nebenbuhler und 
letztlich auch sie selber. 

So blieb ihre Suche nach einer Hei- 
mat vergeblich, das „natürlichste Da- 
sein", dessen sich, wie sie notierte, jede 
Bäuerin, ja jede Bettlerin erfreuen kön- 
ne, war ihr versagt. Sie müsse „sich im- 
mer erst legitimieren", eben deshalb sei 
es „so widerwärtig, eine Jüdin zu sein". 
Wiederholt erklärte sie in ihren Brie- 
fen, zumal in jenen an die Geschwister, 
man könne als Jude überhaupt nicht 
existieren. Nur zwei Möglichkeiten ge- 
be es: die Taufe und die Ehe mit einem 
NichtJuden. 1814 tritt sie zum Christen- 
tum über und heiratet Karl August 
Varnhagen von Ense. Doch neunzehn 
Jahre später, wenige Tage vor ihrem 
Tod, diktiert sie ihrem Mann: „Was so 
lange Zeit meines Ixbens mir die größ- 
te Schmach, das herbste l-eid und Un- 
glück war, eine Jüdin geboren zu sein, 



um keinen Preis möcht' ich das jetzt 
missen." War das Einsicht oder Resi- 
gnation oder vielleicht Trotz? Sicher ist 
Wenn wir uns heute, obwohl ihre 
Schriften fast nur noch von Fachgelehr 
ten gelesen werden, mit Rahel Varnha 
gen beschäftigen, so vor allem deshalb 
weil ihr Leben mehr als aufschlußreich 
weil es exemplarisch ist. Exemplariscf 
wofür? Ich meine: Für die Wege unJ 
Irrwege der Juden in der deutschen Li- 



ds der unerwartete Einbruch eines Ju- 
den in die urdeutsche Domäne der hol- 
den Poesie. Erschwerend kam hinzu, 
daß sich Heine nicht ignorieren ließ: 
Seine Verse waren gut, so gut, daß sie 
ihn in kurzer Zeit berühmt machten. 
Das kam einer enormen, einer unge- 
heuerlichen Provokation gleich. 

Gewiß, man war durchaus bereit, sich 
diese Gedichte anzueignen und sie 
auch ausgiebig zu loben. Aber man war 




Franz Kaßa 



Die Karikaturen > ; diesem Aufsatz wurden von Lorcdano gezeichnet 



teratur im neunzehnten und eben aui ) 
im zwanzigsten Jahrhundert. 

Beinahe jeder dieser Schriftsteln r 
mußte früher oder später durchnrii- 
chen, was Rahel erfahren und erlitt n 
hatte. Beinahe jeder wußte, daß er st h 
immer erst legitimieren müsse. Beinal e 
jeder lebte im Zeichen jener schreck - 
chen Angst, die sich zeitweise verdräD - 
gen, doch nie ganz abschütteln ließ 
der Angst vor dem Judenhaß, genauöi 
der Angst vor Deutschland, vor dö', 
Deutschen. Und die meisten Schrift 
steller sahen nur einen einzigen Aus 
weg: Ähnlich wie Rahel Varnhagen 
wandten sie sich vom mosaischen Glau 
ben ab, um sich einer der herrschende! 
Religionen anzuschließen. Indes: Wa; 
sie sich davon versprachen, ging so gui 
wie nie in Erfüllung. 

Heine sah schon als Student, daß ihm 
„Torheit und Arglist ein Vaterland ver- 
weigern". Aber er dachte nicht daran zu 
kapitulieren. Verurteilt zur Heimatlo 
sigkeit, versuchte er, sich zunächst dort 
einen Platz zu sichern, wo er glaubte, ei- 
ne Ersatzheimat, eine Art Vaterland 
finden zu können: in der deutschen 
Sprache, in der deutschen Literatur. 
Dieses Ziel vor Augen, debütierte er in 
den zwanziger Jahren des vorigen Jahr- 
hunderts mit Versen, die sofort eine 
ungewöhnliche Situation erzeugten. 
Plötzlich war ein Jude ein deutscher 
Dichter. Das hatte es bisher nicht gege- 
ben. Gewiß kannte man schon deutsch 
.schreibende Juden, nur spielten sie kei- 
ne Rolle. Oder es war ein Ludwig Bör- 
ne aus Frankfurt, der aber Prosa publi- 
zierte, Kritiken und Reiseberichte. Das 
schien der Öffentlichkeit erträglicher 



nicht bereit, den Autor als Person, als 
Bürger, als Deutschen anzunehmen. 
Gesellschaftliche und berufliche Grün- 
de waren es, die Heine vcranlaßlen.zur 
evangelischen Kirche überzutreten. 
Daß man diese Selbstverteidigung, die- 
sen Kampf ums Dasein, gelegentlich als 
Opportunismus bezeichnet hat, will mir 
nicht recht einleuchten. Jedenfalls hat, 
was Heines Isolation ein Ende bereiten 
sollte, sie erst recht vertieft. Er blieb, 
was er bisher gewesen war: ein Jude un- 
ter den Christen. Nur war er jetzt auch 
noch ein Getaufter unter den Juden. 

Nicht der Taufzettel veränderte sein 
Leben, sondern erst die Auswande- 
rung. Er war in Deutschland ein ge- 
scheiterter Jurist, dem es nirgends ge- 
lingen wollte, eine Stellung zu finden. 
In Frankreich lebte er als ein Poet, der 
geschätzt wurde. In Deutschland war er 
ein unbequemer Zeitgenosse, der vie- 
len auf die Nerven ging und der überall 
Anstoß erregte. In Frankreich hat er 
die Einheimischen nicht besonders ge- 
stört, hier konnte er ohne weiteres zwar 
nicht integriert, doch immerhin akzep- 
tiert werden - als einer, der selbstver- 
ständlich nicht dazugehörte. In beiden 
Ländern war und blieb der Düsseldor- 
fer Heine ein kurioser Einzelgänger, 
in bunter Vogel, kurz: hier wie dort ein 
Iremder. Aber unter den Deutschen 
ein Jude, unter den Franzosen ein 
Deutscher, in Deutschland ein Ausge- 
stoßener, in Frankreich ein Ausländer. 
In Deutschland wie in Frankreich 
war das zentrale Problem Heines das 
Judentum, doch nicht etwa die mosai- 
sche Religion und nicht die jüdische 
Tradition. Freilich ist Heines Thema, 



zumal in dem internationalen Bestsel- 
ler „Buch der Lieder", meist zwischen 
und hinter seinen Versen verborgen. Er 
spricht in der Lyrik von den Leiden des 
deutschen Juden kurz nach der von den 
Behörden verordneten, aber von der 
Bevölkerung nicht gewollten, besten- 
falls geduldeten Emanzipation, von 
den Leiden somit eines Menschen, der, 
hineingeboren in die deutsche Welt, in- 
tegriert werden möchte. Der Schmerz 
dessen, den man nicht zuläßt, der allein 
und einsam bleibt - das ist Heines Leit- 
motiv: Die aussichtslose Liebe, die er in 
seinen Liedern und Gedichten besingt, 
symbolisiert die Situation des Ver- 
stoßenen und Ausgeschlossenen. 

Nicht die Heimatlosigkeit steht im 
Mittelpunkt dieser Dichtung, vielmehr 
die Nichtanerkennung, die Nichtzu- 
gehörigkeit des zwar ganz und gar assi- 
milierten, aber in Wirklichkeit eben 
nicht emanzipierten Juden. So ist Hei- 
nes Werk durch die spezifische Situati- 
on geprägt, in der er sich inmitten der 
christlichen Gesellschaft befunden hat. 
Dies jedoch gilt für nahezu alle Juden in 
der deutschen Literatur: Es sind nicht 
etwa stilistische oder formale Merkma- 
le, die das Werk dieser Schriftsteller 
kennzeichnen, vielmehr sind es die The- 
men und die Motive, die sich aus ihren 
Erfahrungen und Leiden, aus ihren 
Komplexen und Ressentiments als Ju- 
den in der deutschen Welt ergeben. 

Ob das Jüdische im Vordergrund ih- 
res Lebens stand oder ob sie es zu ver- 
drängen und zu ignorieren versuchten, 
ob sie sich dessen ganz oder nur teil- 
weise bewußt waren - ihnen allen hat 
ihre Identität schmerzhafte Schwierig- 
keiten bereitet, keiner ist tnit dieser 
Frage zu Rande gekommen. Der aus ei- 
nem schwäbischen Dorf stammende 
Romancier und Geschichten' . (ier 
Berthold Auerbach gla'-' oas Pro- 
blem gelöst zu habe- : aci, erklärte er 
1847, ein Deu* ,», ein Schwabe und 
ein Jude zugL .cn, nichts anderes könne 
und wolle er sein. Seine „Schwarzwäl- 
der Dorfgeschichten" machten ihn zu 
einem wahren Volksschriftsteller, er 
wurde mehr gelesen und geschätzt als 
Gottfried Keller. Doch ließ er sich nicht 
beirren, deutlich sah er die wachsenden 
antisemitischen Tendenzen in Deutsch- 
land: Wie Heine von dem „nie abzuwa- 
schenden Juden" sprach, so wollte auch 
er sich nicht damit abfinden, daß man 
ihn auf Schritt und Tritt „als Juden und 
immer nur als Juden angesehen" hat. 
Als 1880 der Berliner Antisemitismus- 
streit ausgetragen wurde, verzweifelte 
Auerbach über den Widerwillen gegen 
die Juden. Er schrieb: ..Vergebens ge- 
lebt und gearbeitet!" 

Gegen Ende des Jahrhunderts wurde 
es augenscheinlich, daß die jüdischen 
Schriftsteller in ihrer überwiegenden 
Mehrheil das Judentum als eine Last 
empfanden, mit der sie freilich sehr un- 
terschiedlich umgingen. Wollten sich 
die einen ihrer so schnell wie möglich 
entledigen, so wurde sie von anderen 
resigniert weiterge.schleppt oder aber 
trotzig wie ein Banner getragen. Sie 
nahmen ihr Judentum nicht als etwas 
Natürliches, etwas Selbstverständliches 
hin. vielmehr schwankte ihre Reaktion 
zwischen Scham und Stolz: Sie ergaben 
sich demütig in ihr Schicksal oder wi- 
dersetzten sich ihm mit Nachdruck. 
Der Kritiker Alfred Kcrr beteuerte, 
daß er „die Herkunft von diesem Fa- 
belvolk immer als etwas Beglückendes 
gefühlt" habe. Wirklich immer? Auch 
dann, als der Jude Kerr schikaniert und 
schließlich vertrieben wurde? 

Arthur Schnitzler, in dessen Werk 
man die jüdischen Motive und Figuren 
nicht zwischen den Zeilen zu suchen 
braucht, behauptet in einem Brief: „Ich 
leide nicht im geringsten unter meiner 
jüdischen Abstammung." So ganz über- 
zeugend ist das nicht. Denn in seinem 
erst für die postume Veröffentlichung 
bestimmten Tagebuch notiert er: „Wie 
schön ist es ein Arier zu sein - man hat 
sein Talent so ungestört." In der Tat 
wurde Schnitzler immer wieder ver- 
leumdet und bösartig angegriffen. 
„Weil ich Jude war" - schrieb Sigmund 
Freud -, „fand ich mich frei von vielen 
Vorurteilen, die andere im Gebrauch 




Kuri Tucholsky 



ihres Intellektes beschränkten; als Jude 
war ich darauf vorbereitet, in die Op- 
position zugehen..." Das gilt in hohem 
Maße auch für Schnitzler. Auf vielen 
seiner Fotos sieht man einen behäbigen 
und bedächtigen Herrn, einen offenbar 
gleichmütigen Menschen. In Wirklich- 
keit kannte auch er, wie die meisten Ju- 
den in der deutschen Literatur, keine 
Ruhe, auch er war ein Getriebener. Die 
Gesellschaft seiner Zeit wie kaum ein 
anderer beobachtend, mußte er sie, ob 




"N 



\ 



\ 



7 



Heinrich Heine 



er es wollte oder nicht, bloßstellen - 
und geriet als junger Autor gleichsam 
automatisch in die Opposition, zumal 
mit seinen dramatischen Arbeiten und 
erst recht mit der bahnbrechenden No- 
velle „Leutnant Gustl". 

Aber Schnitzlers Werk ist noch in ei- 
ner ganz anderen Hinsicht charakteri- 
stisch für den Beitrag der Juden zur 
deutschen Literatur: Vorurteilsfrei und 
provozierend, verblüfft es zugleich 
durch eine Synthese hervorstechender 
Eigentümlichkeiten, die mit der Her- 
kunft aus dem Judentum, aus dem Get- 
to zu tun haben - mit der Synthese von 
Schwermut und jahrhundertelang ent- 
behrter Lebensfreude, von ungewöhn- 
licher Leidensfähigkeit und einer durch 
das Elend der noch unfernen Vergan- 
genheit gesteigerten Cienußsucht. In ei- 
nem Brief aus dem Jahr 1914 sagt er 
beiläufig, es sei doch sonderbar, daß 
..wir uns als alles zugleich fühlen müs- 
sen. Ich bin Jude, Österreicher, Deut- 
scher". Man beachte die Formulierung 
..fühlen müssen". Aufschlußreich ist 
auch seine Begründung: Wenn man 
den Juden, den Österreichern oder den 
Deutschen „was Schlimmes nachsagt", 
dann fühle er sich jeweils beleidigt. Wir 
haben es also mit einer dreifachen 
Identität zu tun, freilich mit einer, die 
offenbar bloß aus dem Negativen 
herrührt. 

Über dieselbe Frage nachdenkend, 
hat ein Berliner Zeitgenosse Schnitz- 
lers, der Kritiker und Verlagslektor Mo- 
ritz Heimann, den Sternenhimmel 
bemüht: Es sei „nichts Unnatürliches 
darin, seine Bahn mit zwei Mittelpunk- 
ten zu laufen; einige Kometen tun es 
und die Planeten alle". Jakob Wasser- 
mann, einer der meistgelesenen Er- 
zähler der Weimarer Republik, be- 
kannte sich ebenfalls zu einer Bahn mit 
zwei Mittelpunkten: Er sei Deutscher 
und Jude zugleich, und zwar „eines so 
sehr und so völlig wie das andere, kei- 
nes ist vom anderen zu lösen". 

Doch auch ihm, dem von großen Pu- 
blikumserfolgen verwöhnten Roman- 
cier, blieben herbe Enttäuschungen 
nicht erspart. 1921 versetzte er die Öf- 
fentlichkeit mit einer Schrift in Erstau- 
nen, die man gerade von ihm am we- 
nigsten erwartet hatte - mit dem auto- 
biographischen Buch „Mein Weg als 
Deutscher und Jude". Sein Fazit: „Es ist 
vergeblich, das Volk der Dichter und 
Denker im Namen seiner Dichter und 
Denker zu beschwören... Es ist ver- 
geblich, das Gift zu entgiften. Sie brau- 
en frisches. Es ist vergeblich, für sie zu 
leben und für sie zu sterben. Sie sagen: 
Er ist ein Jude." 

Dieses zeitgeschichtliche Dokument, 
Klage und Anklage in einem, ist immer 
noch ergreifend. Und es ist höchst auf- 
schlußreich, nicht zuletzt wegen der 
Reaktion, die es hervorgerufen hat. 
Thomas Mann nämlich war mit der 
alarmierenden Selbstdarstellung seines 
Kollegen überhaupt nicht einverstan- 
den. Wassermann dürfe sich doch nicht 
über Unrecht beklagen - schreibt er -, 
da zumindest einige seiner Romane 
außerordentlich erfolgreich seien. 
Überdies sei das jüdische Publikum 
„heute in einem Maße weltbestim- 
mend, daß der jüdische Künstler sich 
eigentlich geborgen und in der Welt zu 
Hause fühlen könnte". 

Wie aber ist es mit dem Antisemitis- 
mus? Davon weißlliomas Mann nichts 
- oder er möchte nichts wissen: „Ein 
nationales Leben, von dem man den Ju- 
Fortsetzung nächste Seite 



Frankfurter Allgemeine Zeitung 



Samstag, 15. Juli 1995, Nummer 162 



Fortsetzung von der ersten Seite 

Die 
verkehrte 

Krone 

den auszusperren versuchte, in Hin 
sieht auf welches man ihm Mißtrauen 
bezeigen könnte, gibt es denn das über- 
haupt?" Es will ihm nicht einleuchten, 
daß Deutschland ein Boden sein sollte, 
„worin das Pflänzchen Antisemitismus 
je tief Wur/el fassen könnte". So Tlio- 
mas Mann im Jahre 1^21 . 

Wassermann antwortete sofort. Der 
Konflikt, an dem er zu leiden habe, sei 
für Menschen „von Ihrer Art, Ihrer Er- 
ziehung, Herkunft und inneren Verfas- 
sung" wohl kaum greifbar: „Was hätten 
Sie empfunden, wenn man aus Ihrem 
Lübecker- und Hanseatentum ein 
Mißtrauensvotum konstruiert hätte?" 
Da Thomas Mann getan hatte, als sei 
ihm ein deutscher Antisemitismus ganz 
und gar unbekannt, mußte er sich jetzt 
von Wassermann belehren lassen, daß 
Juden in Deutschland weder Richter 
noch Staatsanwälte oder Offiziere wer- 
den könnten und daß den Gelehrten, 
von wenigen Ausnahmen abgesehen, 
die Katheder versperrt blieben. 




Karl Kraus 



Als Thomas Mann 1935, während des 
Aufenthalts in der Schweiz, seinen 
Brief an Wassermann aus dem Jahre 
1921 zu sehen bekam, äußerte er sich 
hierzu in seinem Tagebuch auffallend 
wortkarg; Er sei damals „unerlaubt gut- 
gläubig" gewesen. Das ist eine Beschö- 
nigung, die wohl mit ITiomas Manns 
schlechtem Gewissen zu tun hat: Nicht 
gutgläubig waren seine Belehrungen 
und auch nicht weltfremd. Denn was er 
um 1921 seinem Tagebuch anvertraut 
halte, zeigt, daß in jener Zeit bisweilen 
auch er von abfälligen Urteilen über 
Juden nicht absehen mochte. 

Der Briefwechsel zwischen Thomas 
Mann und Jakob Wassermann macht 
etwaige Illusionen zunichte: In der Wei- 
marer Republik lebten jüdische und 
nichtjüdische Schriftsteller, ungeachtet 
unzähliger Kontakte und Freundschaf- 
ten, doch in zwei verschiedenen Wel- 
ten. Dies läßt auch eine andere, nicht 
minder wichtige Überlegung Tliomas 
Manns erkennen. In seinem 1 909 veröf- 
fentlichten Roman „Königliche Ho- 
heit" fragt der Großherzog einen Arzt, 
Doktor Sammet, ob er die jüdische 
Herkunft je als ein Hindernis auf sei- 
nem Wege, als Nachteil im beruflichen 
Wettstreit empfunden habe. Doktor 
Sammet will diese Frage weder bejahen 
noch verneinen. Kein gleichstellendes 
Prinzip - sagt er - könne verhindern, 
„daß sich inmitten des gemeinsamen 
Lebens Ausnahmen und Sonderformen 
erhalten". Der einzelne, also der Jude, 
werde guttun, „nicht nach der Art der 
Sonderstellung zu fragen", vielmehr 
daraus „eine außerordentliche Ver- 
pflichtung" abzuleiten. Denn durch die 
Nichtzugehörigkeit zur Mehrheit habe 
man eine weitere Veranlassung zu be- 
deutenden Leistungen. 

Ein ungewöhnlicher Befund, eine 
schon erschreckende Empfehlung: 
Sollten die Juden dafür dankbar sein, 
daß sie eine „Sonderstellung" hatten 
und eine Minderheit waren? In der Tat 
sieht Thomas Mann in einer nach dem 
Ersten Weltkrieg geschriebenen Arbeit 
das Judentum als „eines jener Symbole 
der Ausnahme und der hohen Er- 
schwerung, nach denen man mich als 
Dichter des öfteren auf der Suche 
fand". Sein Werk belegt diese Äuße- 
rung: Die Menschen, die im Mittel- 
punkt seiner Romane und Erzählungen 
die Ausnahme und die hohe Erschwe- 
rung symbolisieren, sind in der Regel 
Künstler, Homosexuelle und Juden. 
Dagegen ist natürlich nichts zu sagen. 
Nur hätten die Juden selber - und hier 
geht es um die Kreativen unter ihnen, 
zumal um die Schriftsteller - auf ihre 
Ausnahmesituation, deutlicher: auf den 
angeblich stimulierenden Einfluß der 



Verfolgung gern verzichtet. Statt jenes 
„natürlichste Dasein" genießen zu kön- 
nen, nach dem sich schon Rahel Varn- 
hagen gesehnt hatte, mußten sie sich 
unentwegt vor den NichtJuden auswei- 
sen und bewähren. Albert Einstein hat 
sich kurz nach dem Ersten Weltkrieg 
mokiert: Sollten sich seine 'Hieorien als 
richtig herausstellen, dann werde er für 
die Deutschen ein Deutscher sein und 
für die Franzosen ein Europäer. Sollten 
sie sich aber als falsch erweisen, dann 
würden ihn die Franzosen für einen 
Deutschen ausgeben und die Deut- 
schen für einen Juden. 

Diese „hohe Erschwerung", die den 
Juden das Leben oft qualvoll machte 
und die mitunter auch ihre großen Lei- 
stungen ermöglichte, war ihnen selber 
keineswegs recht. Die NichtJuden ap- 
plaudierten und riefen ihnen zu: Bitte 
leidet weiter, bewahrt doch Eure „Son- 
derform", denn es sind ja gerade Eure 
Leiden, die Euch auszeichnen, die Euch 
attraktiv und interessant machen. Die 
Juden empfanden diese Zustimmung, 
mochte sie auch bisweilen freundlich 
gemeint sein, eher als unheimlich. 

Die Söhne und Enkel jener, die nach 
Jahrhunderten dem Getto entkommen 
waren, sehnten sich nach einer Heimat, 
nach einem Hafen. Einer von ihnen, 
Gustav Mahler, sagte knapp, er sei 
„dreifach heimatlos: als Böhme unter 
den Österreichern, als Österreicher un- 
ter den Deutschen und als Jude unter 
allen Nationen der Erde". Zugleich 
wurde diese Generation jüdischer In- 
tellektueller, deren Existenz die Religi- 
on nicht mehr zu prägen vermochte, 
von der Heimatlosigkeit in einem an- 
deren Sinne verunsichert und gepei- 
nigt. Keiner hat das treffender artiku- 
liert als der unglückliche deutsche 
Dichter, der die Heimatlosigkeit der 
Juden zum Thema seines Werks, eines 
Jahrhundertwerks, erhoben hat: Franz 
Kailca. 

In einem Brief an seinen Freund Max 
Brod spricht Kafka 1921 von dem „Ver- 
hältnis der jungen Juden zu ihrem Ju- 
dentum" und von „der .schrecklichen 
inneren Lage dieser Generation". Er 
erkannte sie klar und deutlich: „Weg 
vom Judentum... wollten die meisten, 
die deutsch zu schreiben anfingen, sie 
wollten es, aber mit den Hinterbein- 
chen klebten sie noch am Judentum des 
Vaters und mit den Vorderbeinchen 
fanden sie keinen neuen Boden. Die 
Verzweiflung darüber war ihre Inspira- 
tion." 

Es war die Inspiration von Arthur 
Schnitzler und Joseph Roth, von Walter 
Benjamin und Karl Kraus und auch 
von Schrift.stellern, die (wie Else Las- 
ker-Schüler und Alfred Döblin, Franz 
Werfel und Walter Ha.senclever) dem 
Expressionismus zugerechnet wurden. 
In dieser literarischen Revolte gegen 
die Welt der Bürger und gegen die Au- 
torität der Väter spielten somit die Poe- 
ten jüdischer Herkunft eine auffallend 
große Rolle. Gewiß waren Einsamkeit 
und Heimatlosigkeit nicht nur für die 
Juden typisch, sondern auch für viele 
andere junge Autoren. Nur mußte die- 
ses Generationserlebnis gerade die jü- 
dischen Intellektuellen, zumal die 
Schriftsteller, die sich ja ohnehin im 
Stich gelassen fühlten, noch schmerzli- 
cher treffen. 

Auf einer Postkarte von 1916 stellt 
Kafka ohne jedes Auflieben die fun- 
damentale Frage seiner Existenz: Wer 
er denn eigentlich sei? Denn in der 
„Neuen Rundschau" habe man seiner 
Prosa „etwas Urdeutsches" beschei- 
nigt, während Max Brod seine Erzäh- 
lungen zu den „jüdischesten Dokumen- 
ten unserer Zeit" zähle. Kafka stimmt 
weder dem einen noch dem anderen 



Befund zu: „Bin ich ein Cirkusreiter auf j 
2 Pferden?" Und er antwortet sogleich: I 
„Leider bin ich kein Reiter, sondern 
liege am Boden." Sollte ähnliches 
.schon für Heine gegolten haben? 

So verwunderlich die Analogie aucf 
erscheinen mag Kafka hat mit Heint 
mehr gemein, als man auf den ersten 
Blick wahrnehmen kann. Auch Kafka 
hat exemplarische Situationen, Kon- 
flikte und Komplexe vornehmlich von 
Juden innerhalb der nichtjüdischen 
Welt dargestellt. Indem Heine in seiner 
erotischen Lyrik insgeheim das Los der 



Dritte Reich kümmerte sich darum 
nicht im geringsten: Auch Schriftsteller, 
die bloß jüdischer Herkunft waren und 
deren Eltern oder Großeltern sich 
längst haben laufen lassen, wurden zur 
Emigration gezwungen - wie Rudolf 
Borchardt, wie Carl Sternheim, der 
Sohn eines Juden, wie Carl Zuckmayer, 
der Sohn einer Jüdin. Andere Autoren 
rebellierten gegen die jüdische Exi- 
stenz, indem sie sich für jene philoso- 
phischen und ideologischen Entwürfe 
mtschieden, die als Ersalzreligion die- 
nen konnten, für den Marxismus, für 




Joseph Roth 



benachteiligten Juden besang oder sich 
zumindest von diesem Los inspirieren 
ließ, wurde er zum poetischen Sprecher 
und Sachwalter aller Benachteiligten 
und Verschmähten, aller, die an ihrer 
Rolle in der Gesellschaft gelitten ha- 
ben, aller, die sich nach Liebe sehnten, 
aber sich mit der Sehnsucht, mit der 
Hoffnung begnügen mußten. 

Auch Kafkas Geschichten vom 
Schicksal der Angeklagten und der 
Ausgestoßenen sind klassische Gleich- 
nisse von der Entfremdung und der 
Vereinsamung des Individuums: Die 
Tragödie der Juden, die er in seinen Ro- 
manen und Erzählungen dargestellt 
hat, ohne das Wort „Jude" zu verwen- 
den, wurde von nachwachsenden Ge- 
nerationen, durchaus zu Recht, als Ex- 
trembeispiel der menschlichen Exi- 
stenz verstanden. 1925, kurz nach Kaf- 
kas Tod, als noch der größte Teil seines 
Werks ungedruckt und sein Name 
kaum bekannt war, wurde er von Her- 
mann Hesse ein „heimlicher Meister 
und König der deutschen Sprache" ge- 
nannt. Wenn Kafka ein König war - 
dann freilich, wie einst Rahel Varnha- 
gen, wie später Heinrich Heine, einer 
mit der falschen, mit der „verkehrten 
Krone" auf seinem Schicksal. 

Einige der an dieser jüdischen Hei- 
matlosigkeit leidenden Schriftsteller 
wandten sich, wie Kafka in seinen spä- 
teren Jahren, wieder dem Judentum zu 
und der neuen Bewegung, dem Zionis- 
mus - so Lion Feuchtwanger, Arnold 
Zweig, Max Brod und Martin Buber. 
Aber den meisten bedeutete die jüdi- 
sche Überlieferung nichts mehr. Das 




I 



Arthur Schnitzler 



den Sozialismus - so Anna Seghers und 
Arr i>ld Zweig, Ernst Bloch und Manös 
Speber, der Dramatiker Friedrich 
Wolf und der Reporter Egon Erwin 
Kisi li nid, zumindest zeitweise, Walter 
Beii iiinin und Kurt Tucholsky. „An 
Stel . von Heimat / halte ich die Ver 
waii llung der Welt" - dieses Wort der 
Neliv Sachs läßt sich auf sie alle bezie- 
hen 

U'id das Christentum? Seine Anzie- 
hunjskiall hielt sich in Grenzen. Aber 
es war nicht unbedingt Opportunismus, 
der \icle jüdische Schriftsteller die 
Nähe aes Christentums suchen ließ. 
Zum:il katholisches Denken und ka- 
tholis> lic; Ritual haben auf manche 
von iiüien einen starken Einfluß aus- 
geübt Alfred Döblin verließ schon 
1912 die jüdische Religionsgemein- 
schal i doch, schrieb er, wenn es um 
Kampf gehe, „war und blieb ich ein Ju- 
de". Zwischen 1926 und 1935 veröf- 
fentlichte er drei Bücher, die sich aus- 
schließlich mit jüdischen Fragen be- 
schältiglen. Gleichwohl trat er 1941 im 
ameiikanischen Exil zum katholischen 
Glauben über. Er tat es in einem Au- 
gcnMick, da er sich von diesem Schritt 
ni' ht die geringsten praktischen Vortei- 
le crsprechen konnte. 

I3ie Hinwendung zur Philosophie ka- 
tli.)lischer Prägung war wohl das wich- 
tigste geistige Ereignis in den letzten 
J: iiren des Juden Kurt Tucholsky. Franz 
^^erfel war vom Katholischen geradezu 
f idniert - und Joseph Roth ebenfalls. 
:^ e litten an der „schrecklichen inneren 
1 Ige dieser Generalion". Aber taufen 
;Ben sie sich doch nicht. Roth, in des- 
■•\ Werk das Jüdische zu den zentralen 
iliemen gehört, schuf sich auf der Su- 
che nach einem neuen Glauben eine 
\\unsch- und Märchenwelt: Aus dem 
h;ibsburgischcn Reich wurde sein Or- 
plid. Nicht als eine politische Realität 
bijgriff er also die Donaumonarchie, 
sondern als Idee und Vision, als eine 
iiickwärts gewandte Utopie: Kakanien 
als Wille und Vorstellung. Österreich 
Isai - heißt es in seinem Roman „Die 
Kapuzinergruft" - „kein Staat, keine 
Heimat, keine Nation. Es ist eine Reli- 

i;ion." 

Vielleicht hat keiner dieser Schrift- 
,teller an seinem Judentum so heftig 
lelitten wie Karl Kraus, der unduld- 
i'amste Beobachter und der gewaltigste 
Hasser der Epoche. Er war ein gefürch- 
teter Zuchimeisler und ein genialischer 
Alleinunterhalter, eine Wiener Institu- 
tion und ein österreichisches Ärgernis. 
1899 hat er die jüdische Religionsge- 
meinschaft verlassen, 1911 trat er der 
katholischen Kirche bei, 1923 hat er 
sich von ihr wieder getrennt. Als Kurio- 
sum sei der unmittelbare Anlaß er- 
wähnt: Die Kirche hat dem von Kraus 
verachteten Max Reinhardt erlaubt, in 
der Salzburger Kollegienkirche ein 
Theaterstück aufzuführen. Schlimmer 
noch: Das llieaterslück stammte aus 
der Feder eines von Kraus besonders 
verabscheuten Autors, den er für einen 
geschmacklosen Nichtskönner hielt - 
aus der Feder Hugo von Hofmanns- 

'•lals. „ ^. 

Da die Wurzeln semer außergewöhn- 
lichen Wortgläubigkeil und seines Ge- 
rechtigkeitsfanatismus unzweifelhaft 



im Judentum zu finden sind, in der Welt 
des Alten Testaments, haben wir es bei 
seiner fortwährenden, bisweilen schon 
manischen Anklage des Jüdischen mit 
einer Selbstauseinandersetzung zu tun: 
Der Selbsthaß feierte in den Schriften 
von Karl Kraus wahre Orgien. Sonder- 
bar: Den berüchtigten jüdischen Selbst- 
haß, diese düster schillernde Kategorie 
kennt keine einzige europäische Lite- 
ratur - nur die deutsche. Ob das wohl 
damit zusammenhängt, daß die Juden 
sich in die deutsche Kultur geradezu 
verliebten? f^ann wäre es, wie schon 
gelegentlich bemerkt wurde, diese un- 
erwiderte Liebe der Juden, die ihre Ge- 
reiztheit geweckt, ihre Aggressivität ge- 
steigert und schließlich diesen unheim- 
lichen Selbsthaß angefacht hat. 

Auch Tucholsky hat über und gegen 
Juden allerlei geschrieben, was man zur 
Zeit der Weimarer Republik in der 
Kampfpresse der Nationalsozialisten 
ebenfalls lesen konnte - dort allerdings 
ungleich dümmer und viel schlechter 
formuliert. Auch Tucholsky hat sich die 
größte Mühe gegeben, sein Judentum 
abzustreifen. In seinem Abschiedsbrief 
an Arnold Zweig, im Dezember 1935 
verfaßt, stellte er knapp fest, er habe 
sich 191 1 vom Judentum getrennt, wis- 
se nun aber, „daß man das gar nicht 
kann". Ein Professor soll in den dreißi- 
ger Jahren seinem Auditorium bekannt 
haben, er .sei aus dem Judentum ausge- 
treten, worauf Max Brod ihm zurief: 
„Aber das Judentum nicht aus Ihnen!" 
Eine einnehmende, eine für sich ge- 
winnende Kategorie ist der Selbsthaß 
ganz gewiß nicht, doch offenbar eine 
produktive und fruchtbare: Karl Kraus 
und Kurt Tucholsky gehören zu den 
vorzüglichsten deutschen Satirikern 
und Feuilletonisten nicht nur unseres 
Jahrhunderts. Und bestimmt ist nicht 
falsch, was Tucholsky beiläufig bemerkt 
hat: „Selbsthaß ist der erste Schritt zur 
Besserung." Wer aber befürchten soll- 
te, daß der jüdische Selbsthaß, der sich 
Karl Marx und Kafka ebenso nachsa- 
gen läßt wie Else Lasker-Schüler oder 
Kurt Tucholsky, den Antisemiten nütze, 
dem kann man nur zustimmen. Es 
spricht jedoch nicht gegen die Juden, 
daß sie sich nie gescheut haben, ihre 
Schwächen und Schwierigkeiten, ihre 
Makel und Laster vor aller Welt auszu- 
breiten: Unter den Anklägern der Ju- 
den waren die Juden selber immer die 
ersten. Das ist eine uralte l'radition. Es 
sind die Propheten des Alten Testa- 
ments, die sie begründet haben. 

Von der deutsch-jüdischen Kultur- 
Symbio.se, zumal im Bereich der Litera- 
tur, spricht man jetzt häutig - und man 
meint damit die ganze Epoche von der 
Aulklärung bis zum Holocaust. Aber 
hat es diese Symbiose, von der vor 1933 
nur selten die Rede war, denn wirklich 
gegeben? Oder wurde sie bloß von den 
Juden erhofft und angestrebt, war es 
vielleicht nur ein Wunschtraum? Sicher 
ist, daß die Juden die Gesellschaft, in 
der sie lebten, aus zwei Perspektiven 
betrachten konnten und mußten - von 
außen und von innen, aus der Distanz 
und aus der Nähe. So waren es vor al- 
lem Juden, denen es gelang, den Geist 
und die Atmosphäre der Metropolen 
Berlin und Wien wiederzugeben. 

Wer hat das Bild der Stadt Berlin lie- 
bevoller, kritischer und anschaulicher 
gezeichnet als Döblin in seinem Roman 
„Berlin Alexanderplalz", als T\icholsky 
in seinen Skizzen und Feuilletons? Wer 
hat die Umgangssprache, zumal den 
Berliner Dialekt, so genau fixiert, so 
scharfsinnig und witzig parodiert wie 
diese beiden Autoren? Und wer hat das 
Österreichische intensiver und reizvol- 
ler bewußtgemacht als die Juden Ar- 
thur vSchnitzler. Joseph Roth und Stefan 
Zweig, Peter Altenberg und Alfred Pol- 
gar - von Johann Strauß und Hugo von 
Hofmannsthal, die auch jüdische Vor- 
fahren hatten, ganz zu schweigen? 

1933 hat Goebbels einen Emissär 
nach Porto Ronco am Lago Maggiore 
geschickt, um den dort wohnenden, da- 
mals weltberühmten Erich Maria Re- 
marque, einen NichtJuden, zur Rück- 
kehr nach Deutschland einzuladen 
und, wenn nötig, zu überreden. Indes 
wollte Remarque davon nichts hören. 
Aber er werde sich doch, meinte 
schließlich der Emissär, nach der Hei- 
mat zurücksehnen? Remarques denk- 
würdige Antwort lautete: „Ich mich 
nach Deutschland zurücksehnen? Bin 
ich denn ein Jude?" 

In der Tat, die aus Deutschland und 
Österreich vertriebenen oder geflohe- 
nen nichtjüdischen Schriftsteller haben 
sich mit ihrem Schicksal in den meisten 
Fällen viel leichler abgefunden als die 
Juden. So verwunderlich ist das wieder 
nicht: Kaum jemand leidet an dem Ver- 
lust der Heimat so sehr wie jene, die 
sich gezwungen sahen, wieder aufzuge- 
ben, was sie erst vor nicht langer Zeil 
gewonnen hatten. Und es ist schon auf- 
schlußreich, daß einen der schönsten 
deutschen Heimatromane zwischen 
1 933 und 1 945 eine aus ihrem Vaterland 
verjagte Jüdin in Paris geschrieben hat: 
Anna Seghers, die Autorin des Romans 
„Das siebte Kreuz", des.sen Handlung 
sich am Rhein und Main abspielt, zwi- 
schen Frankfurt. Worms und Mainz. 

Der Trost der Vertriebenen und Ver- 
bannten war die deutsche Sprache, der 
größte Schatz, den sie auf die Wande- 



rung mitgenommen hatten. „Wenn ich 
deutsch schrieb" - heißt es schon bei 
Heine -, „so konnte ich mir einbilden, 
ich sei in der Heimat..." Nicht allen 
konnte dieser Schatz helfen. War es die 
Sehnsucht nach der Heimat, die viele 
jüdische Schriftsteller im Exil Selbst- 
mord verüben ließ? Zu ihnen gehören 
Kurt Tucholsky und Walter Benjamin, 
Walter Hasenclever und Ernst Toller, 
Stefan Zweig und Ernst Weiss. 

In Hasenclevers Roman „Die Recht- 
losen", verfaßt 1940 in den letzten Mo- 
naten seines Lebens, sagt ein assimilier- 
ter Jude: „Was sind wir eigentlich? 
Deutsche waren wir einmal. Juden kön- 
nen wir nicht werden... Was bleibt 
noch? Wir haben unsere Wurzeln aus- 
gerissen und stolpern doch mit jedem 
Schritt über sie." Aber auch manche, 
die das Exil oder die Todeslager über- 
lebt haben, blieben gezeichnet für im- 
mer und konnten ihren Platz nicht 
mehr finden: Paul Celan hat 1970 
Selbstmord verübt, der Literarhistori- 
ker Peter Szondi 1971, der Essayist 
Jean Amery 1978. In der Bundesrepu- 
blik wurde 1959 eine Lyriksammlung 
mit dem Titel „Jüdisches Schicksal in 
deutschen (iedichten" veröffentlicht. 
Gedacht war soder Untertitel an ei- 
ne „abschließende Anthologie". Das 
scheint mir eine angemessene Bezeich- 
nung: Die deutsch-jüdische Kultursym- 
biose ist, wenn es sie denn je gegeben 
hat, beendet. Doch deren Ergebnisse 
gibt es, sie sind unerhört und wunder- 
bar zugleich. 

Inmicr wollen die Schriftsteller auf 
die Zeitgenossen Einfluß ausüben und 
womöglich die Welt verändern, inmier 
wieder entwerfen sie Zukunftsvisio- 
nen, die freilich nie in Erfüllung gehen. 




Elias Canetti 

Aber einem österreichischen Juden ist 
es gelungen, mit einem Roman tatsäch- 
lich zur Weltveränderung beizutragen. 
Er war zunächst ein Lustspielautor und 
Feuilletonist und bald ein Staatsmann, 
wenn auch ohne Staat. Er war ein Pro- 
phet, dessen Utopie Wirklichkeit wur- 
de. Ich spreche von Theodor HerzI und 
seiner Vision des Staates Israel. Und Li- 
terat, der er war, wählte er für seine Vi- 
sion die Form eines Romans: Er er- 
schien 1902 unter dem Titel „Altneu- 
land". Geradezu paradox mutet das an: 
Der neuzeitliche Staat der Juden das 
war erst einmal ein Stück deutscher Li- 
teratur, ein zwar künstlerisch unerheb- 
licher, doch folgen.schwerer Roman. 

Aber wir sollten uns nichts vorma- 
chen: Das alles gehört der Vergangen- 
heit an. Die vertriebenen Schriftsteller 
jüdischer Herkunft haben in der Nach- 
kriegszeil am literarischen Leben 
Deutschlands zwar teilgenommen, in- 
des sind die meisten nicht mehr zurück- 
gekehrt. Im Exil endete das Leben von 
Nelly Sachs, Elias Canetti und Lion 
Feuchtwanger, von Max Brod, Robert 
Neumann und Mancs Sperber, Alfred 
Polgar und Walter Mehring, von Paul 
Celan, Peter Weiss, Wolfgang Ilildes- 
heimer und Erich Fried. 

Was hat dieser Generalion das Ju- 
dentum noch bedeutet? Nicht nur im 
eigenen Namen sprach Hilde Domin, 
als sie 1978 feststellte, daß Judesein für 
sie keine Glaubensgemeinschaft sei - 
und auch von Volkszugehörigkeit kön- 
ne nicht die Rede sein. Es sei vielmehr 
eine Schicksalsgemeinschaft: „Ich habe 
sie nicht gewählt wie andere Gemein- 
schaften ... Ich bin hineingestoßen wor- 
den, ungefragt wie in das Leben selbst." 
Und: „Ich verdanke diesem aufge- 
zwungenen Schicksal Erfahrungen, die 
mir sonst fremd geblieben wären. Ex- 
iremerfahrungen . . ." Mit dem ihnen 
aufgezwungenen Schicksal hadernd, 
wurden die deutschsprachigen jüdi- 
schen Schriftsteller über die Jahrhun- 
derte hinweg zu Erben und Nachfol- 
gern jener, die triumphierten und doch 
scheiterten - zu Erben und Nach- 
folgern also von Moses Mendelssohn 
und Rahel Varnhagen. Ihnen, den 
in diese Schicksalsgemeinschaft Hin- 
eingestoßenen, den zu Extremer- 
fahrungen verurteilten Juden, ver- 
danken wir ein so düsteres wie 
glanzvolles Kapitel unserer Literatur, 
ein einzigartiges Kapitel. 



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Civil Justice Reform in the United States 

- Opportunity for Lcarning from "Civilized" 
European Procedure Instead of Contpnued Isolation? - 

Ernst Stiefel and James Maxeiner 



European jurists liave long ur^ed that their American colleagues 
considcr using concincncal approachcs in dcaling wich the scrious prob- 
Icms that afflict the American System of civil justice. A few years back, 
our coUeague Kötz noted that •*!£ there is a desire to reform American 
civil procedure, either by making changes within the adversary System or 
be developing alternative methods of dispute resolution, the Continental 
experience may be well worth studying."^ 

Today, agitation for civil justice reform in the United States is at a 
levcl not Seen in a vcry long time-. Moreover, unlike previous periods of 
reform, proponents of reform have no clear direction. Thus today there 
could be an opportunity for Americans to learn European experiences 
such as they have not before. In this artife, we report on present and past 
efforts at civil justice reform in the United States and ^sstss the oppor- 
tunities for lcarning from Continental modeis. 

I. The Thrcc Rcforms In America 

The American System of civil justice is under attack now like never 
before in memory. President Bush charged that America, "The home of 
the free," has become the "land of the lawsuit"\ "Crazy" lawsuits 
became a theme of the 1992 presidential election campaign. Vice Presi- 




4 




Fol 



« •*Thc Reform of the Adversary System", 48 Univcrsity of Chicago Law Review 
(hcrcaftcr U. Chi. L. Rcv.) 478, 486 (1981). The French Jurist, Pierre LePauIle. who after 
expressing "his amazemcnt at the ineffective manner in which justice is administered ... 
morc like a high church ccremony than a business transaction", asked ''>X^y don't you take 
advantagc of what has bccn donc by the civil law. that govcrns at least twicc as many people 
as the common law, is rwo thousand years oldcr, and cmbodics a much grcatcr amount of 
human experience?" Quoted in £. SunderUnd, Book Review, 15 American Bar Association 
Journal (hcrcaftcr ABA Journal) 35 (1929). 

i Civil justice rcform in the United States can rcfcr to both reform of civil 
procedure and to reform of Substantive tort law. In this article we refer only to reform of 
civil procedure; our discussion of Continental procedure is limited to German procedure, 
which probably has been the nQ>$t discussed of European procedurcs. 

i Address in Atlanta, February 29, 1992. 



^ 
V 



854 



Ernsc C. Stiefel and James R. Maxeiner 



dent Quayle became known as che "scourge of che legal profession" for 
leading the campaign for reformV At the 1991 Convention ot the Ameri- 
can Bar Association (ABA) he charged that Jstaggering expense and 
delay" make the American System jTself-inflicted competitive disadvan- 
tage*' in the global economy^ While the current campaign is new, 
discontent with the justice System has been growing steadily for at least a 
decade. In 1984, the then Chief Justice of the United States, Warren 
Burger, warned the ABA Convention that^Our System is too costly, too 
painful, too destructive, too inefficient fo'r a truly civilized people"^ 
According to a recent article in the California Lawyer^.Clients, lawyers, 
judges and the general public all seem to think that the cost of civil 
litigation in the United States is out of control."^ 

Until now, there have been two principal reforms of civil procedure in 
the United States: one, beginning in 1848, when New York adopted the 
so-called Field Code, and the other culminating in 1938, when the 
national government adopted the Federal Rules of Civil Procedure'. 
Neither of these two reforms drew on Continental modeis of civil 
procedure or even gave foreign modeis meaningful consideration. But 
neither did they deliberately reject Continental modeis. Circumstances 
simply precluded real consideration of foreign alternatives. 

;. The First Reform, the Field Code of 1848 

The first great reform of American civil procedure presented no real 
opportunity for reference to Continental modeis. As John Langbein has 
pointed out, German civil procedure then had not yet matured and 
consequently could not have presented an attractive model even if the 
reformers had been interested, which they were not. David Dudley 
Field, who engineered that reform in New York in 1848, was indeed 
aware of foreign law^ Field, the great advocate of codification in 



V' 



1 



* New York Times, February 5, 1992, p. A21. 

* Address in Atlanta, August 13, 1991, reprinted in Washington Legal Times, 
August 19, 1991. p.9. 

* Adress, February 13, 1984, quoted in 52 United States Law Week 2471 (February 

28, 1984). 

7 R.Stone, "Telling the Truth About Discovery", 12 California Lawyer, No.2 

(Feb. 1992), at 96. 

« See ^enerally R. Bone, "Mapping the Boundaries of a Dispute: Conceptions of 
Ideal Lawsuit Structure From the Field Code to the Federal Rulesj, 89 Columbia Law 
Review (hereafter Col. L. Rev.) 1 (1989). 

' CS. Subyin, "David Dudley Field and Field Code: A Hisiorical Analysis of an 
Earlier Procedure Vision", 6 Law and History Review 31 1. 318 (1988). Field'i international 
contacts extended to procedure. Maxeiner has a collection of five of Fielä's early pro- 
cedura! reform tracts inscribed from Field to C.F.A. Mittermaier. 



J 



)) 



Civil Justice Reform in thc United States 



855 



America, drew much of his Inspiration for codification as such from 
Civil Law modeis, especially the French codes of Napoleon. His propos- 
als for codification of the criminal law reported on developments in 
Europe. But when it came to procedure, Field was a reformer who 
"knew what was wrong with the existing procedural System and what 

should be done about it."'° 

The Field approach to reform of civil procedure was historical, not 
philosophical; it chose to restate existing law rather than adopt a new 
System of law relying on foreign modeis''. What it did was to unify a 
Wide variety of different procedures. it substantially loosened require- 
ments for pleadings, which had required that the parties come to a single 
issue of law or fact. It required that testimony previously given in 
writing be given before a judge in open court'-. 

2. The Second Reform, The 1938 Federal Rule of Civil Procedure 

There was a better opportunity for German civil procedure to influ- 
ence developments in the United States in the second major reform that 
culminated in introduction of the Federal Rules of Civil Procedure in 
1938. That reform can be traced back to an address Roscoe Pound 
delivered to the American Bar Association in 1906, "The Causes of 
Populär Dissatisfaction with the Administration of Justice"'^ Pound's 
address, besides being a clarion call for reform generally, is fairly 
regarded as an invitation to examine foreign solutions'^ 

The early years of the 20th Century saw the beginnings of a significant 
study in the United States of foreign law in general and of German civil 
procedure in particular. Pound, the long time Dean of Har\'ard Law 
School, was himself a tireless proponent and practitioner of comparative 



«- Bone, 89 Col. L. Rev. at 114. 

'» A.Reppy, "The Field Codification Concept", in A.Reppy (ed.), David Dudley 
Field Centenary Essays, New York. 1979, 17, at 29-30. The Final Report of the Practice 
Commission did acknowledge one explicit borrowing from foreign law: §511 governing 
thc cthical duties of attorneys and counselors was taken from the laws of Geneya. 1 
Speeches, Arguments and Miscellaneous Papers of David Dudley Field 297, New Yorkf 
See W.Fisch, "The Influence of German Civil Procedural Thinking and the ZPO in the 
United States," in Das Deutsche Zivilprozeßrecht und seine Ausstrahlung auf andere 

Rechtsordnungen 400, 405, 1991. 

'• See S.Suhrin, "How Equity Conquered Common Law: The Federal Rules of 
Civil Procedure in Historical Perspective," 135 University of Pennsylvania L. Rev. 908, 

931-39(1987 

>J 40 American L. Rev. 729 (1906), reprinted in 35 Federal Rules Decisions 273 

(1964). 

»* See J. Maxeiner, *'1992: High Time for American Lawyers to Learn from Europe, 
er Roscoe Pound's 1906 Address Revisited", 15 Fordham International L.J. 1 (1991). 



r \rs^. 



856 



Ernst C. Stiefel and James R. Maxeiner 



law. In the year followlng his address to the ABA, and despite the 
negative response the address received, the ABA cstabHshed a Compara- 
tive |aw Bureau. It was organized by Simeon E. Baldwin, a former 
President ot the ABA and a Student of both U.S. and Foreign civil justice 
Systems who published a couple of articles on German civil procedure*^ 

Significant academic projects of the day included a procedural compo- 
nent. The leading proponent of comparative study of civil procedure was 
Robert Wyness Miliar, professor at Northwestern University, who 
wrote a number of works on comparative civil procedure in the 1920s 
and 1930s. The most important of these was A History of Continentat 
Civil Procedure, a volume in the Continental Legal History |eries. \n 
this book, Miliar reprinted material he had published elsewhere and 
translated a contemporary German book on civil procedure'^ 

The American legal Community received Miliares book warmly. The 
two Professors who in the next decade came to be the principal drafters 
of the Federal Rules of Civil Procedure, Charles Clark and Edson 
Sunderland, both praised Miliares book and encouraged future compara- 
tive study'^ In a review of Miliares book, Sunderland explained why 
foreign modeis of civil procedure had, until then, drawn scant attention: 
because of (1) "professional prejudice against new ideas, based on 
national conservation and the monopolistic nature of judicial agencies"; 
and (2) "ignorance, because Americans aren't good linguists and relevant 
materials are not readily available in English". Yet despite the favorable 
reception of Millar's work, neither Clark nor Sunderland nor anyone 
eise seems to have considered foreign Solutions in the actual drafting of 
the rules*^ 



1L 



IS rx 



'* See Sipmeou Baldu'iu, The American Judifciary (New York: The Century Co., 
1905), "A German Law luic", 19 Yale L. J. 69-79 (1909); "The German Law Suit Without 
La^Ters". 9 Michigan L. Rev. 30-38 (1909). 

'^ See R. W. Miliar: A History of Continental Civil Procedure (Continental Legal 
History Series Vol. 7)|"Fomiative Principles of German Procedure", 10 ABA Journal 703- 
09 (1924, "Some Comparative Aspects of Civil Pleading Under Anglo-American and 
Continental Systems", 12 ABA Journal 401 (1926); "The Mechanism of Fact-Discovery: A 
Study in Comparative Civil Procedure, 32 Illinois L. Rev. 261-94, 424-55 (1937). See also 
R. W. Miliar, /Civil Procedure of the Trial Court in Historical Perspective (Judicial 
Administration Series), New York, 1952. 

•' Book rcvicws included, inter alia, 37 Yale L.J. 680-82 (by Charles E. Clark); 15 
ABA Journal 35-36 (by Edsoji R. Sunderland); 11 Michigan L.Rev. 362-63 (also by 
Sunderland); 17 Michigan L.Rev. 262-64 (by \^illiam Wirt Blume); 76 University of 
Pennsylvania L. Rev. 762-63 (by William H. Lloyd). 

!• Miliar could hardly by himself have brought about intensive study of foreign 
alternatives. According to Riesenfeld, Miliar was ,more a sympathetic and sensitive 



I 



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JS 
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C^ 



Civil Justice Reform in thc United States 



857 



Even had American lawyers been able to overcome che twin obstacles 
of professional prejudice and linguistic ignorance, timing assured that 
German civil justice would be no model. Whilc Pound began che 
campaign for reform in 1906, Congress did not authorize it until 1934 
and the reform was not adopted until 1938. By then Germany's judges 
had pinned swastikas on their robes and had sworn allegiancc to Hitler, 
who had dismantled the Rechtstaat. 

Again, in 1938, as in 1848, it seems that the reformers knew what they 
wanted*'. They sought to "restrict the pleadings to the task of general 
notice-giving and invest the deposition-discovery process with a vital 
role in preparation for triap'-^They abolished a separate equity Jurisdic- 
tion in federal courts but adopted equity procedures for general use. 
Equity procedures emphasized joining all relevant parties and issues, 
amassing all relevant data, and permitting the judge to order what was 
fair and just-'. The 1934 Federal Rules introduced the wide-ranging, 
uncontrolled discovery now considered a feature of U.S. civil procedure. 
It has led to a System where applying law to facts is no longer the 
principal or even a main goal of the proceedings". 

3. The 1990s: Chance for a Third Reform f 

Pressure for reform of the U.S. civil justice System is greater today 
than at any time since the first third of this Century. The pressure has 
been building since 1976 when then Chief Justice Warren Burger spon- 
sored a Conference to commemorate Pound's 1906 address-^ Since that 
Conference a number of ever-more distinguished and ever more visible 
special committees have called for action. These included an ABA 
Kommission in 1984 ("1984 ABA Report")-\ the private Brookings 
Institution in 1989 ("Brookings Report ")-Ma Congressional Committee 



ru 



^) Jua 



L? 



L 



recorder ofadvance than an aposileof reform". Book Review, 41 California L. Rev. 154, 156 
(1952). Miliares works, while technically accompiished, are drv scholarly works hardly 
suited to dcvelop a following among colleagues and students. 

'» Bone, 89 Col. L.Rev. at 114.^ 

-- Hickman v. Taylor, 329 U.S. 495 (1947). 

-*' Subrin, at 968. 

-^-' Id. at989, 1001-02. 

^^ The proceedings are reported in A. Levin & R. Wheeler (eds.), The Pound 
Conference: Perspectives on Justice in the Future, Sc. Paul, 1979. Critiques of the adversary 
System publishcd since 1906 are summarized in F.D. Stner and £. Greene» The Adversary 
System: An Annotated Bibliography, Littleton, 1990. 

'* American Bar Association: Atcacking Litigation Costs and Delay, Final Report 
of the Action Commission to Reduce Court Costs and Delays, Chicago, 1984. 

-* The Brookings Institution: Justice for All, Reducing Costs and Delay in Civil 
Litigation, Report of a Task Force, Washington, 1989. 



S58 



Ernst C. Stiefel and James R. iMaxeiner 



in 1990 ("Federal Courts Study Committee")-S a Presidential Commis- 
sion chaired by Vice President Quayle ("Quayle Report") in 199I•^ and 
yet another ABA committee in 1992 responding to the Quayle Report 
(ihe "ABA Blueprint")-*. Many of the Quayle Report proposals took 
legislative form in the shape of bills considered, but not passed, in 
Congress in 1992-^. 

All these reports except the ABA Blueprint, agree that there is a crisis 
in the U.S. civil justice System brought on by excessive cost and delay. 
They concur in identifying the discovery phase of litigation as the 
principal cause of that delay and expense. In reaching these conclusions, 
the committees merely voice conclusions long obvious to much of the 
bar. Already in 1980, Justice Powell of the U.S. Supreme Court, joined 
by two other justices, dissented from approving amendments to the 
Federal Rules of Civil Procedure arguing that "the changes embodied in 
the amendments fall short of those needed to accomplish reforms in civil 
Htigation that are long overdue." According to the justices, "every judge 
and litigator knows** where the problem arises: "abuse of the discovery 
procedures available under the [Federal] Rules"^. 

Unlike the other reports, the ABA Blueprint, while entitled "ABA 
Blueprint for Improving the Civil Justice System", is not so much a 
manifesto for a change as an apology for the Status quo. It advocates 
Steps "to maintain and enhance the exlllence of America's justice Sys- 
tem."^* The present crisis is not to be attributed to defects in the System, 
but to "the decay caused by long-term neglect and underfunding of the 
eiitire justice System" and by "the extent to which the civil justice System 
has been damaged by the increased bürden on the jcriminal justice 
System"^-. The ABA Blueprint is typical of a number of recent works 
that deprecate criticsm by observing that dissatisfaction with the legal 
System has always been with us or by purporting to show that problems 
are not as severe as claimed. But even the ABA Blueprint recognizes that 
there are serious problems that have to be fixed. 



Lee 



n 



A 



-* U.S. Congress: Report of the Federal Courts Study Committee, Washington, 
1990. 

-' U.S. President, Report from the President's Council on Competitiveness, 
Agenda for Civil Justice Reform in America, Washington, 1991. 

-' American Bar Association: ABA Blueprint to Improvc the Civil Justice System, 
Chicago. 1992). 

^ 102d Congress, 2d Session, S.21S0 and its companion bill. H.R. 4155, Both **to 
provide greater access to civil justice by reducing costs and delay, and for other purposes." 

w Reprinted at 28 U.S.C.A., Federal Rules of Civil Procedure, before Rulc 1. 

^' ABA Blueprint xv. 

« Id. at 45. 



Civil Justice Reform in the United Sraies 



859 



Lacking from any of the reform reports is a clear vision of what reforms 
to implement. While the reports recognize tliat more than "tinkering 
changes" are required'\ they offer nothing more than minor corrections 
that leave the existing System, whith all its defects intact. None, for 
example, would fundamentally change discovery. The minimal nature of 
the changes proposed is apparent even to opponents of change. The AB A 
Blueprint criticizes the Quayle Report for being a "piecemeal collection of 
proposals" that "do not make a whole"^^ 

Three of the most discussed potential avenues for reform are: (1) to 
reduce demand for dispute resolution through the public civil justice 
System; (2) to increase judicial "case management" to improve efficiency; 
and (3) to alter the fee system to shift costs to the losing side. All of these 
avenues figure prominently in the Quayle Report, upon which we focus 
here, since it has had the greatest political support. The Quayle Report also 
proposes expert evidence reform and restrictions on punitive damages. 

Reducing demand for dispute resolution is a favored means of reform 
This means increased use of so-called "alternative dispute resolution" 
("ADR")^^ Insofar as reforms concern the federal courts, it also means 
shifting the bürden of litigation elsewhere, namely to State courts or to 
administrative agencies^^ The slogan for increased use of alternative 
dispute resolution is "The Multidoor Courthouse". In the end these 
proposals come down either to judges encouraging parties to setde or to 
directing parties to go elsewhere. Such proposals have little to do wich a 
real reform of the civil justce system; they are more recognitions that the 
present system simply does not work. 

Proposals for increased "case management" are a bit closer to real 
reform - at least in name. The Quayle Report calls on judges to "take a 
hands on approach to case managemenp, which the ABA Blueprint 
supports^^ Similarly, the Federal Courts Study Committee Report 
endorses "the trend toward more vigorous case management by district 
judges"^^, while the Brookings Report calls on judges to "take a more 



1^ 



y> 



" Brookings Report 9. 

^* ABA Blueprint vii. 

" See Quayle Repon 15-16; ABA Blueprint 31-43, 64-68; Federal Courts Study 
Committee Report 24-25; Brookings Report 38. 

^ See Quayle Report 26-27; ABA Blueprint 90-94; Federal Courts Study Commit- 
tee Report 35-68. Many academics and federal judges would like to see the federal courts 
operatc largely as a system of constitutional courts and thus routinely oppose proposals to 
increase the number of federal judges which they see as diluting the power and majesty of 
this portion of the bench. 

>' At 20. 

" At 77. 

i^ At 100. 



860 



Ernst C. Scicfel and James R. Maxeiner 



case. 



active role in managing their cases"'^ and che 19S4 ABA Report insists 
that "The judge must assume responsibility for the pace of litigation, 
actively monitoring or directing che scheduling of events in the life of the 

sc,"*' . 

Proposais for active case management are not, howevj, the opening 
for significant change they might seem. They are more tinkerings with 
existing ways of doing Business than introduction of meaningfully new 
procedures. According to the ABA Blueprint: "At base, howevcr, 
caseflow management is a System controlled by the court that sets time 
limits for completion of all phases of the case from filing to conclusion, 
monitors each case to ensure that established deadlines are met, and 
enforces management Solutions to get cases that have fallen off schedule 

back on track"^-. 

What active case management does not doJs change fundamentally 
what happens in litigation. It does not requirejto focus their pleadings on 
the issues in dispute. It does not force parties to identify the evidence 
they intend to rely on to prove their case. It does not limit the parties in 
their discovery to material facts actually in dispute. It does not restrict 
substantially the parties in making their discovery demands. It does not 
introduce a judge to conduct depositions or to oversee document 
disclosure. About all it does do is make the judge a glorified calendaring 

clerk. 

The third major avenue of reform would permit movement toward 
imposing litigation costs on the losing side. This scheme - known in the 
United States as the "English rule" - is highly controversial. It is so 
controversial that even the Quayle Report calls for its introduction in 
only a very limited number of situations'^ The Federal Courts Study 
Committee Report opposes the English rule'\ and the ABA has Hkewise 
been hostile toward it'\ The existing rule is defended so as to prevent 
discouraging parties "with plausible but not clearly winning claims" 
(Federal Courts Study Committee). Prospects for adoption of fee- 
shifting do not seem great. 

Continental modeis have had no significant role in the various reform 
proposals of the last decade and have achieved only the most fleeting of 
mentions in the various reports. The references are so fleeting and trivial 



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^- At 3. 

*' At 8-9. 

*'- At 77. 

« I.e., discovery motions, at 18-19; so-called "diversin' cases** (cases in federa! 

court based on State law) at 24-25. 

** At 105. 

<J See ABA Blueprint 73, 87-88, Appendix at 5. 



Civil Justice Reform in the United States 



861 



that they all can be summarized here. The Quayle Report^*, che ABA 
Blueprint and the 1984 ABA Report all make no references at all to 
Continental civil procedure. The Brookings Report merely notes in a 
Single sentence that "[U.S. lawyers] who have litigated abroad perceive 
U.S. litigation costs to be substantially higher than thosc in foreign 
countries"'^ The far longer Federal Courts Study Committee Report 
brings only a slightly greater comparative perspective: it rejects out of 
hand the use of specialized courts such as are found on the Continent 
("most American lawyers find the idea of specialized courts repugnant"). 
The Quayle Report does make one highly controversial reference to 
foreign Systems: it daims that there are far more lawyers per capita in the 
United States than in other countries, e. g., 281 lawyers per 100,000 
population in the U.S., but only 111 in Germany*^ It has engendered 
substantial discussion and criticism^'. 

II. The Challenge of German Civil Procedure 

Knowledge of foreign law is at a veiy low level in the United States, 
not only among lawyers and judges, but even among academics. While 
there are a few academics knowledgeable in foreign law, the United 
States has nothing to compare to Germany's Max Planck Institutes^®. 
While the collapse of Communism has contributed to a new awareness 
among American lawyers of law in other cQ^ntries, ironically, it has not 
led American lawyers to study foreign legallystems as an aid to reform 
of their own. Instead, American lawyers are Holding out their System as a 
model for the formerly Communist countries of Eastep Europe despite 
criticism of it at home. In the same issue of the California Lawyer that 
reports that costs of civil litigation are "out of control", the State Bar of 
California prescribes "Borrowing Knowledge from the U.S. Legal Sys- 
tem"!^* The same ABA president who rejected Quayle's criticism at the 



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*^ Parallels in the Quayle Report to foreign procedures have been noted. See 
A.Conese, ''Civil Justice Reform Speaks with a Foreign Accent^ 1991 BNA Product 
Safety & Liabiliry Reporter 1193. 

*^ At 6. ' 

« At 2. 

^' See, c.g., M.GaUnur, Working Paper DPRP 10-10. The Debascd Debate on 
Civil Justice 10-19 (Madison WI: Institute for Legal Studies, 1992); R.A^igust, "The 
Mythical Kingdom of Lawyers; America Doesn't Have 70% of the Earth's Lawyers", 
ABA Journal. September 1992, at 72; CR. Epp, "Lets Not Kill All the Lawyers", Wall 
Street Journal, July 9. 1992, at A 15. 

" See Eric Stein's still current description of the dismal State of comparative law 
studies in the United States in "Uses. Misuses - and Nonuses of Comparative Law," 72 
Northwestern U.L.Rev. 198. 209-16 (1977). 

*' R. Stone, above note 7, at 64. 



862 



Ernst C. Stiefel and James R. Maxeiner 



1991 Convention, states chat legal reform in Russia presents "a Historie 
challenge to the American legal profession - to lend support on a scale 
and depth that only our nation has the resources t^rovide."^- Many 
American lawyers, even at the highest levels of the profession, believe 
that their System, despite its defects, is still the world's best^\ 

Developing knowledge in the United States of the German civil justice 
System has been a slow process. The promising Start in the first third of 
the Century was hardly helped by the political disaster of the Nazi era. 
Even today, advocates of studying Gejman civil procedure must reckon 
with dismissal as advocates of a Nazfainted System. 

While in many respects, the forced relocation of many first-rate jurists 
that resulted from the turmoil in Europe enriched the American legal 
Community, in the field of civil justice, no such enrichment is apparent. 
Whether the reason for this was because a thorough-going reform was 
too far along by the time the ^migris arrived in the 1930s or because civil 
procedure is more closely tied to'tlie political System than Substantive 
law or for some other reason may be left unanswered here. The clear fact 
is that the emigre generation had no influence on comparative civil 
procedure. While the emigres noted the defects of Common Law 
procedure, they shied away from active criticism^^ 

1. American Describers 

A gradual building of American knowledge of the German System 
began in the 25 years that followed the Second World War, when 
international studies in general emoyed a boom in the United States. 
Compaftive legal studies benefitFed from that boom and U.S. law 
Professors turned their attention to how Continental legal Systems 



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" T.D'Alembme, "Our Eastern European Challenge," ABA Journal, March 1992, 

at 8. 

*-^ For example, Justice Scalia, the "intellectual" on the U.S. Supreme Court stated: 
"How eise do you run a System? The only alternative [to the U.S. System] is to go to the 
inquisitorial System and have an investigating judge. And then you are going to lose or wm 
depending on how good a judge you happen to have gotten." From "Ethics in America: 
Truth on Trial", recorded February 13, 1988 (Public Broadcasting System, 1989). 

5< See, e.g., Karl Loenenstein, „Ketzerische Betrachtungen über die amerikanische 
Verfassung", in Der Staat als Aufgabe, Gedenkschrift für Max Imboden 233-54, Basel & 
Stuttgart, 1972 at 250 (U.S. System suffcrs „notorische Mängel". „Daß die Rechtspflege zu 
den am wenigsten vorbildlichen Gebieten der amerikanischen Zivilisation gehört, ist ein 
offenes Geheimnis, wenn auch das verständliche Klasseninteresse der arrivienen Juristen - 
Richter wie Anwälte - es nicht wahrhaben will ... Die Rechtspflege ist langsam - es 
können Jahre bis zum ersten Termin vergehen -, durchsetzt mit überflüssigen VerfahreiJ;;^ L '^^ 
J[hindernissen, überaus kostspielig, und sie vollzieht sich nicht selten hinter einem Wall von • ^ 
Privilegien für die korporativen Interessen." 



Civil Justice Reform in ihe United States 



863 



handle civil procedure. Grounds for this foreign study were more 
understanding how U.S. trading partners operate and less a search for 
alternative Solutions to American problems". While United States inter- 
est in international affairs has been in decline for two decades, practica! 
Problems of international civil procedure have worked to create some 
interest and knowledge of foreign procedurej among a small circle of 
judges and internationally active lawyers^^. 






2. Langbeines Challenge: "The German Advantage" 

In 1985, Professor Langbein, now of Yale University, published an 
article with the plainly provocative title: "The German Advantage in 
Civil Procedure **^^ Langbein challenges American lawyers to consider 
whether thcir cherished System is truly second best. Langbein in thc 
"German Advantage" argues that the German System avoids the most 
troublesome aspects of American procedure by assigning judges rather 
than lawyers to investigate the facts. I|e contends that the United States 
should follow German experiences and restrict the lawyers* role in fact- 
gathering. He recommends that the United States introduce judicial 
control and eventually judicial conduct of fact-gathering. 

Langbein in his article provides a straight-forward expositon of 
certain fundamentals of German civil procedure which he contrasts to 
their counterparts in American procedure. While Langbeines conclu- 
sions are purposely provocative and consequntly controversial, the 
contrasts he makes should not be, for they are patent to anyone familiär 
with both Systems. They are: 

a) In Germany, the court has main responsibility for gathering and 
evaluating evidence. The judge prepares the case, serves as principal 
examiner and summarizes testimony. In the United States, each side 
prepares its own case for presentation to the court. The judge remains 



L 



A 



\\\ 



" B.Kaplan, A.T. von Mehren, and R.Schaefer: "Phases of German Civil Proce- 
dure". 71 Har\'ard L. Rev. 1193-1268 (1958); B.Kaplan, "Civil Procedure: Reflections on 
the Comparison of Syster|i'', 9 Buffalo L.Rev. 409 (1960); A.T. von Mehren: "Some 
Comparative Reflections on First Instance Civil Procedure: Recent Reforms in German 
Civil Procedure and in the Federal Rules", 63 Notre Dame L.Rev. 609-27 (1988); The 
Columbia Project on International Civil Procedure (which produced books on civil 
procedure in France, Italy, and SwedenL 

^ See, e.g., David Gerher, "Extraterritorial Discovery and the Conflict of Pro- 
cedura! Systems| Gemiany and the United States", 34 Am. J. Comp. L. 745 (1986); |t 
"International Discovery After Aerospatiale: The Quest for an Analytical Framework 82 
Am. J. Int. L. 521 (1988).; D.Shemanski, "Obtaining Evidence in the Federal Republic of 
Gcrmanv", 17 International Lawyer 465 (1983); Societe Nationale Industrielle Aeros- 
patiale v'. U.S. District Court, 482 U.S. 522 (1987). See Fisch at 413. 

*' 52 Universiry of Chicago L. Rev. 823. 



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S64 



trnsc C. Stiefel and James R. Maxeiner 



passive, there is no judjial preparation of che case, the parties' lawyers 
serv-e as principal examiners, and there are verbatim transcripts of 
testimony. 

b) In Germany, the judge controls the sequence of the case and consid- 
ers issues deemed central first. In the United States, each sidc's lawyers 
first investigate the case fully in the discovery stage. Then later, at trial, 
they präsent **their" cases in füll, first plaintiff, then defendant. 

c) In Germany, wltnesses are questioned for the first time by the judge. 
In the United States, lawyers for the parties prepare "their** witnesses 
prior to testimony. 

d) In Germany, expert witnesses are chosen by the judge and are 
supposed to be neutral. In the United States, expert witnesses are chosen 
by the parties and function as advocates. 

J. America Reaas to the "German Acivantage" 

Reaction to Langbein s article has been largely negative: the German 
System, it is argued, may not be as good as claimed, or the U.S. approach 
has special advantages, or in any event, the German System would not 
work in the U.S.^^I 

a) First Reaaion to "The German Advantage": Skepticism 

Professor Allen of Northwestern University is skeptical; he makes a 
plea to Langbein for "more details and fewer generalities"'^ Allen 
criticizes Langbein for leaving his article at a high level of ger^rality, but 
nonetheless acknowledges that "If the generalities Jtha^L^«g/?em7 
invokes are true, then he has made a powerful argument that the 
American System is decidedly inferior to the German System in certain 

" Langhein had no reason lo be surprised thac there was LaJ widespread acceptance 
of the German System. A decade earlier he and others attemptecla similar campaign against 
U.S. criniinal procedure which led to similar results. Cf. Rudolf Schlesinger, "Comparative 
Criminal Procedure: A Plea for Utilizing Foreign Experiencc," 26 Buffalo L.Rev.pCT, 
363 (1977) (U.S. lawyers "are possessed by a feeling of superioriry that seems to grow in 
direct proportion to the ever-increasing weight of the accumulating evidence demonstrar- 
ing the total failure of our system of criminal justice"). At about che same time as 
Langbein's civil procedure campaignj A/4.te/;;er argued for a refonn of the procedures for 
implementing antitrust law. Policy and Methods in German and American Antitrust Law, 
New York and Wesiport. 1986 and Rechtspolitik und Methoden im deutschen und 
amerikanischen Kartellrecht, eine vergleichende Betrachtung, München, 1986. While com- 
mended in reviews, Maxeiner's work was ignored. 

>' R. Allen, J.Köck, K. Riechenberg & D.Rosen, "The German Advantage in Civij 
Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarshipr 
82 Northwestern University L.Rev. 705 (1988). 



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Civil Justice Reform In the United Staces 



865 



important respects and that we would do well to embrace aspects of that 

System". 

Allen complains that he cannot determine from Langbein s articlc the 
truth of Langbeins geiieralities. In particular, he is bothered by the lack 
of empirical works to support Langbeines claims, and suspects that 
Langbein has emphasized the most negative appraisals of the American 
System while relying on the most charitable appraisals of the German. 

Allen in his criticism of the "German Advantage" never escapesjfoi^ 
an American perspective. He repeatedly assumes - as is very easy to do - 
greater similarities in the two Systems than actually exist because of 
parallels in the problems they treat. Allen challenges the "German 
Advantage" by pointing out that variations in the German approach to a 
particular problem parallel those in the American approach. What Allen 
overlooks, however, is that while problems in the two Systems may 
parallel each other, the variations between the two Systems are far more 
striking. This is apparent upon examination of several of Allen's princi- 

pal criticisms: i 

Episodic or concentrateci triai Langbein writes abput the problems 
that American procedure creates through use of a single, concentrated 
trial. The entire case must be fully discovered to avoid surprise at trial 
Allen counters that "courts in the United States tend to deal with the 
matter ... in a fashion at least somewhat analogous to Langbeines 
portrayal of the German response." Allen is right that U.S. courts do 
sometimes grant continuances to deal with the unexpected, but the usual 
case is dealt with in one concentrated proceeding and it is the usual case 
for which the attorneys must prepare. A focused but limited inquiry is 
rarely possible under U.S. procedures. 

Coached or iinprepared\^Allen makes much of the fact that the 
German prohibition on contacting witnesses has been loosened some- 
what in recent years. This is true enough, but it does not affect the basic 
difference. Coaching, as known in the U.S/^is unknown in Germany. 
Even simple contact remains rare. In the United States, on the other 
band, contact is the rule and Coaching common. 

Jiidicial control of fact-gathering. Allen acknowledges that the Ger- 
man judge ihg jiidgij is constrained by the Verhandlnngsmaxime and by 
the Dispositionsmaxime which limit the judge's ability to control com- 
pletely the gather