International Criminal Tribunal for the Former Yugoslavia
Rules of Procedure and Evidence: Rule 106 provides:
- (A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty of a crime which has caused injury to a victim.
- (B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
- (C) For the purposes of a claim made under Sub-rule (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.
The compensation provision contained in Rule 106 is rather vague and would benefit from interpretation to facilitate its application. Although it makes clear that the victims have a right to obtain compensation, it does not specify where such compensation may be claimed. The ICTY does not itself have power to award damages (except for restitution of property in some cases) (1), and, although at some stage it envisioned the creation of a claims commission for victims, none was established. (2) As a result, there is no other forum to bring compensation claims than domestic courts. (3) It is necessary therefore to interpret the provisions in Rule 106 which refer to "pursuant to the relevant national legislation" and "in a national court," with these realities in mind.
Rule 106 does not specify any particular national court, and the Rule explicitly states that victims may bring a cause of action pursuant to the relevant national legislation, reflecting that the ICTY does not have the power to alter domestic law or jurisdiction grounds.(5)
Types of Jurisdiction
In international law, the classic criminal jurisdiction is territorial, which means that the courts competent to hear the case are those of the state where the crimes were committed. In tort law, jurisdiction is similar; municipal courts are often reluctant to assume jurisdiction in cases concerning a foreign element and adhere to the territorial principle conditioned by the situs(6) of the facts in issue. Courts often extend jurisdiction based on criteria relating to the concepts of allegiance(7) or domicile and doctrines of either prior express submission to the jurisdiction or tacit submission, for example on the basis of the ownership of property in the state of the forum. (8)
However, the exercise of jurisdiction does not always depend on a connection to the state where the crimes were committed. First, in criminal law, there are some crimes that give rise to universal jurisdiction, wherein all courts are competent to hear the case regardless of any connection between the state and the crime, victims or perpetrator. For instance, crimes committed in the former Yugoslavia could be (and some were) tried not only in an international tribunal but alternatively in a foreign national court based on universal jurisdiction.(9) It is not clear, however, whether the crimes that give rise to universal jurisdiction in criminal cases would also give rise to such jurisdiction in the context of a tort claim.(10)
Possible Interpretations of Rule 106
It is clear that states must recognise the judgements of the Tribunal to be final and binding as to the criminal responsibility. However, there can be two broad interpretations of Rule 106 with respect to the role of national courts in affording a civil remedy: a) that the Rule reaffirms the right of all victims to bring claims for compensation in national courts to the extent permitted by domestic law or b) that this provision obligates states to afford a civil remedy specifically to victims of crimes tried before the ICTY.
Interpretation A: The Rule reaffirms the right of all victims to bring claims for compensation in national courts where permitted by domestic law.
Some take the view that the Rule recognises the possibility that victims of crimes tried before the ICTY, like all other victims, may bring compensation claims before national courts wherever permitted to do so under domestic law. Thus, domestic law would determine where such claims could be brought.
If this is the case, then the only fora in which compensation could be claimed by victims of crimes committed on the territory of the former Yugoslavia since 1991 would be a) the succeeding states of the former Yugoslavia (pursuant to the rules of succession of states)(11), b) other countries that have legislation allowing universal jurisdiction for civil claims for compensation-(12), or c) other countries that have a link to a particular criminal act (such as the perpetrator's nationality or domicile or the location of his/her assets) and have legislation allowing for extraterritorial jurisdiction based on such a link.
Following this line of interpretation would imply that a civil claim for compensation could be brought in the former Yugoslavia (i.e. Bosnia and Herzegovina in the present case) and in the US, the only country with explicit universal civil jurisdiction, independently of the ICTY ruling. The only advantage of the Tribunal judgment would be that, pursuant to Rule 106, the criminal responsibility of the accused would have been proven.(13)
Interpretation B: The Rule obligates states to afford a civil remedy specifically to victims of crimes tried before the ICTY.
As noted above, Rule 106 states that a victim may bring an action in a national court, meaning no particular national court is presumed to be the appropriate forum. The question then arises as to whether Rule 106 creates an obligation for all states to afford a civil remedy to victims of crimes tried by the ICTY and therefore an obligation to implement legislation to this end or to interpret existing legislation in favour of this right.
In answering in the affirmative, some suggest that "relevant national legislation" in Rule 106(b) refers to enabling legislation. According to the UN Special Rapporteur on Reparation, "Rule 106(B) appears to anticipate that states will enact enabling legislation pursuant to their obligations under Chapter VII of the UN Charter and Article 29 of the Statute."(14) As Article 29(2)(15) of the Statute reads, "States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons.(e) the surrender or transfer of the accused to the International Tribunal".(16) The implication is that where a State has implemented legislation incorporating the ICTY Statute and Rules, it is bound by the obligations therein. Thus, "106(C) appears to refer to a state's obligations under Article 29".
Further support for this interpretation is given by those who find it hard to believe that the drafters of the Tribunal's Statute would have wanted to limit the right to compensation to only a select group of fora while victims seeking redress through domestic courts often have easy access to bringing claims for damages, particularly in many civil law countries where such claims can be attached to criminal proceedings. For instance, if a criminal case based on universal jurisdiction is brought in a domestic court against an alleged perpetrator from the former Yugoslavia, the victims can be awarded compensation for the injuries suffered. Giving a limited interpretation to Rule 106, however, would result in the irony that victims of cases where the Tribunal has not interfered would have a better opportunity to obtain compensation than those were the ICTY has exercised its jurisdiction.
Furthermore, some hold the view that Rule 106 expands the right of victims to bring actions for compensation to different fora since it reads: "pursuant to relevant legislation. in a national court or other competent body" [italics added]. Taking this into consideration, it is difficult to believe that the judges, when drafting these Rules (adopted in 1994), were limiting the right of victims to claim compensation only to the national courts where the conflict occurred,(17) or in a national court were existing extraterritorial legislation would allow such a claim.(18)
Finally, in order to comply with their obligations pursuant to Article 29 of the ICTY Statute, many states enacted implementing legislation(19) but others chose to interpret their existing laws in a manner consistent with their obligations towards the ICTY.(20) This means that even if states have no specific legislation implementing some provision of the Statute and/or the Rules and Procedure and Evidence, existing laws should be interpreted in a consistent manner.
- Rule 105: "Restitution of Property - (A) After a judgement of conviction containing a specific finding as provided in Sub-rule 98 ter (B), the Trial Chamber shall, at the request of the Prosecutor, or may, proprio motu, hold a special hearing to determine the matter of the restitution of the property or the proceeds thereof, and may in the meantime order such provisional measures for the preservation and protection of the property or proceeds as it considers appropriate. (B) The determination may extend to such property or its proceeds, even in the hands of third parties not otherwise connected with the crime of which the convicted person has been found guilty. (C) Such third parties shall be summoned before the Trial Chamber and be given an opportunity to justify their claim to the property or its proceeds. (D) Should the Trial Chamber be able to determine the rightful owner on the balance of probabilities, it shall order the restitution either of the property or the proceeds or make such other order as it may deem appropriate. (E) Should the Trial Chamber not be able to determine ownership, it shall notify the competent national authorities and request them so to determine. (F) Upon notice from the national authorities that an affirmative determination has been made, the Trial Chamber shall order the restitution either of the property or the proceeds or make such other order as it may deem appropriate. (G) The Registrar shall transmit to the competent national authorities any summonses, orders and requests issued by a Trial Chamber pursuant to Sub-rules (C), (D), (E) and (F)."
- The ICTY Statute was adopted unanimously along with SC Res 827. The Resolution addresses compensation: "The work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law." [Para 7] Professor Michael Scharf co-drafted Resolution 827, and comments: "What we had in mind was a procedure similar to that devised for the victims of the Iraqi invasion of Kuwait, in which frozen Iraqi assets and proceeds from Iraq oil sales would be dispersed to victims through a UN Compensation Commission." [Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Tribunal Since Nuremberg, (Durham, North Carolina: Carolina Academic Press), 1997, p63.] A clause was included in the Security Council Resolution 827 (which approved the Statute of the Tribunal), declaring that creation of the Tribunal was without prejudice to the future establishment of a victim compensation program [S.C. Res. 827, UN SCOR, 48th Sess., 3217th mtg., UN Doc. S/RES/827 (1993)]. However the Security Council later unfroze the assets of Serbia and the Bosnian Serbs [S.C. Res. 1074, UN SCOR, 50th Sess., 3700th mtg., UN Doc. S/RES/1074 (1995)], thereby ending any possibility of such a program for the victims of the Balkans.
- Though numerous other international mechanisms are listed on this website, their mandates would not allow them to address the criminal acts that are covered by the mandate of the ICTY. For example, the International Criminal Tribunal for Rwanda can address criminal acts committed in or concerning Rwanda, while the International Criminal Court is only able to hear cases stemming from acts committed since July 2002.
- International Criminal Tribunal for Rwanda.
- At the time of adoption, several states emphasised this limitation on the tribunal, and its inability to alter domestic law - eg. UK; China; Brazil; Russia. The Morocco and Djibouti delegates emphasised the importance of providing compensation for victims - no mention of a mechanism for doing so. [S/RES/827 (1993) and Verbatim Record of the 3217th Meeting S/PV.3217, 25th May 1993].
- [Latin] The location or position (of something for legal purposes). Black's law Dictionary, West, 1996.
- Allegiance: A citizen's obligation of fidelity and obedience to the government or sovereign. Black's Law Dictionary, 1996.
- See BROWNLIE Ian, Principles of Public International Law, Oxford, 1998.
- According to the Statute, the ICTY has primary jurisdiction over national courts. Article 9, regarding concurrent jurisdiction provides: "1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. 2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal."
- See Al Adsani v. the United Kingdom. European Court of Human Rights (Appl. No. 35763/97, Judgement of 21 November 2001).
- See the Vienna Convention on Succession of States in Respect to Treaties, UN Doc. A/CONF. 80/83 (1978).
- The Torture Victim Protection Act (TVPA) and the Alien Tort Claims Act (ATCA) in the US. There is no other domestic legislation in any other county that expressly grants courts extraterritorial civil jurisdiction. See TERRY John. "Taking Filartiga on the Road: Why Courts Outside the United States Should Accept Jurisdiction Over Action Involving Torture Committed Abroad". Torture as Tort edited by SCOTT (2001).
- It would also help in case personal immunity is claimed in the case of high military commanders, former head of states, etc.
- Professor Cherif Bassiouni, UN Special Rapporteur on Reparation.
- ICTY Statute Article 29 - Cooperation and judicial assistance: "1. States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal.
- M. Cherif Bassiouni and Peter Manikan, The Law of the International Criminal Tribunal for the former Yugoslavia, (New York: Transnational Publishers Inc) 1996, p704.
- Part of the reason for creating an international tribunal was the incapacity of the national courts where the atrocities were committed to afford impartial justice. See Alvarez "Rush To Closure: Lesson of the Tadic Judgment" Michigan Law Review (1998).
- As at 10 November 1997, the following twenty states have enacted legislation regarding the International Criminal Tribunal for the Former Yugoslavia: Italy, Finland, Netherlands, Germany, Iceland, Spain, Norway, Sweden, Denmark, France, Republic of Bosnia and Herzegovina, Australia, Switzerland, New Zealand, United States, United Kingdom, Belgium, Republic of Croatia, Austria, Hungary and Venezuela.
- Four countries have indicated that they do not need implementing legislation. Cassese, Antonio "On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law." E.J.I.L. Vol. 9 (1998) No. 1.