State Cooperation with the International

Criminal Tribunals for the Former Yugoslavia

and for Rwanda

Dagmar Strob*

When establishing the International Criminal Tribunals for the Former

Yugoslavia (Yugoslav Tribunal) and for Rwanda (Rwanda Tribunal) in
1993 and 1994, the United Nations Security Council was aware of the
fact that the success of the Tribunals would depend primarily on the
cooperation of national states with these Tribunals. The contributions
of states to the Tribunals' investigations, and national assistance to in-
ternational court proceedings were considered, and later proved to be,
the key factor in fulfilling the Tribunals* mandate — the prosecution of
violations of international humanitarian law committed during the
conflicts in former Yugoslavia and Rwanda in the beginning of the
1990ies.
Today, the Tribunals are fully operating, having overcome initial
difficulties as well as several difficult interim problems. Even so, the co-
operation of states remains an indispensable requirement for efficient
proceedings of both Tribunals.
This article focuses on state cooperation with the International
Criminal Tribunals from the national perspective. State responsibilities,
compiled under the heading "state cooperation" will be presented, fol-
lowed by a presentation of the legal implications that these responsi-
bilities hold for states. Finally, this paper will highlight both the imple-
mentation of these responsibilities into national law, as well as state
willingness to cooperate with the Tribunals in practice thus far.

* I am grateful for the helpful criticism and comments from Mate S. Johnson.
249
J.A. FroweinandR. Wolfram (eds.),
Max Planck Yearbook of United Nations Law, Volume 5, 2001, 249-283.
© 2001 Kluwer Law International Printed in the Netherlands.
 250 Max Planck UNYB 5 (2001)

I. Legal Authorization of the International

Criminal Tribunals
In response to the atrocities which accompanied the dissolution of the
former multinational State of Yugoslavia beginning in June 1991 and the
ineffectiveness of other measures to restore peace,1 the UN Security
Council, decided in Resolution 808 (1993) to establish an international
tribunal to prosecute the most serious violations of international hu-
manitarian law committed during the Yugoslav conflict.2 It accordingly
requested the Secretary-General to submit a report to the Council on
all aspects of this matter, including specific proposals and appropriate
options for the effective and expeditious implementation of the afore-
mentioned decision.3
On 3 May 1993, the Secretary-General submitted a report4 which
contained in its Annex a draft Statute for an International Tribunal for
the Former Yugoslavia. This Statute was formally adopted in its en-
tirety by Resolution 827 (1993). The International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of Interna-
tional Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991 (ICTY) was called into being.5
The Security Council's decision to establish the Tribunal under
Chapter VII had the advantage that it would be effective immediately
and would create binding obligations for all states.6 This decision quali-
fies as a matter short of the use of armed force under Article 41 of the
Charter. Although Article 41 does not expressly authorize the Security
Council to establish a war crimes tribunal, the Charter has been inter-

1
See for example S/RES/743 (1992) of 21 January 1992 establishing the
United Nations Protection Force (UNPROFOR) and S/RES/771 (1992) of
13 August 1992 where the Security Council condemned grave
breaches of international humanitarian law, among others the so-called "ethnic
cleansing".
2
S/RES/808 (1993) of 22 February 1993.
3
S/RES/808 (1993), para. 2.
4
Doc. S/25704.
5
S/RES/827 (1993) of 25 May 1993. In the following, the Tribunal will be
referred to as Yugoslav Tribunal or, shortly, ICTY.
6
Arts 2 para. 6 and 25 of the Charter.
 Stroh, State Cooperation with the ICTY and the ICTR 251

preted as conferring on the Council all powers necessary to fulfill its re-
sponsibility for the maintenance of international peace and security.7
According to article 31 of its Statute, the ICTY has its seat at The
Hague, the Netherlands. In September 1993, the Judges of the Tribunal
were elected by the UN General Assembly according to article 13 para.
2 of the Statute. They held their first session in The Hague nearly two
months later, on 17 November 1993.
A short time later, in April 1994, the world witnessed another con-
flict in which provisions of international humanitarian law were bla-
tantly disregarded. The fighting in Rwanda between members of the
Hutu-dominated governmental party and members of the Tutsi-
dominated Rwandan Patriotic Front (RPF) escalated, culminating in the
mass killing of more than 1 million people over the next three months.
More than two million Rwandans became refugees, many of whom
sought shelter in neighbouring states.8
Since the mass killing of the Tutsi population had assumed the di-
mensions of genocide, the Security Council decided to establish another
criminal tribunal charged once again with the prosecution of the most
serious violations of international humanitarian law. The International
Criminal Tribunal for the Prosecution of Persons Responsible for
Genocide and Other Serious Violations of International Humanitarian
Law Committed in the Territory of Rwanda and Rwandan Citizens Re-
sponsible for Genocide and Other Such Violations Committed in the
Territory of Neighbouring States between 1 January and 31 December
1994 (ICTR), came into being by virtue of Resolution 955 (1994).9
Again, the Security Council acted under Chapter VII of the UN Char-
ter.10 Annexed to Resolution 955 was the Statute of the Tribunal.

7
An instructive summary of the legitimacy of the Yugoslav Tribunal and the
power of the Security Council to establish such tribunal is given by the
Decision of the Appeals Chamber of the Yugoslav Tribunal of 2 October
1995, in the Case of Prosecutor v. D. Tadic, IT-94-1-72, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction.
8
Report of the Independent Inquiry into the Actions of the United Nations
during the 1994 Genocide in Rwanda, Doc. S/1999/1257 of 15 December
1999.
9
S/RES/955 (1994) of 8 November 1994.
10
In contrast to the Yugoslav conflict, which, after separation of several states
from the former Federation, became an international conflict and therefore
constituted a threat to international peace and security as defined by Arti-
cle 39 of the UN Charter, see in this respect C. Greenwood, "The Devel-
 252 Max Planck UNYB 5 (2001)

The provisions of the Statute of the ICTR (Rwanda Statute) are al-
most identical to those of the Statute of the ICTY (Yugoslav Statute),
particularly in structural organization and procedure. Both Tribunals
consist of three organs — the Registry, which is responsible for the ad-
ministration and servicing of the Tribunal,11 the Chambers,12 and the
Office of the Prosecutor which is in charge of investigations and the
preparation of indictments.13 The few provisions on procedural law that
are contained in the Statutes, are identical, too.14 They only provide for
some basic rights of the accused. More specific provisions on proce-
dural matters are to be found in the Rules of Procedure and Evidence
(RPE) which were enacted by the Judges of the Tribunals according to
article 15 of the Yugoslav Statute and article 14 of the Rwanda Statute.
The provisions of the RPE of both Tribunals are for the most part
identical, too.15
A special link between the International Criminal Tribunals is cre-
ated by the Office of the Prosecutor and by the Appeals Chamber of
the Tribunals. According to article 15 para. 3 of the Rwanda Statute, the
Prosecutor of the ICTY also serves as Prosecutor of the Rwanda Tribu-
nal. A similar provision is set out in article 12 para. 2 of the Rwanda
Statute for the Appeals Chamber. Consequently, there is only one
Prosecutor and one Appeals Chamber serving both Tribunals.
The rules of international law applicable in armed conflict vary de-
pending on whether the conflict is international or internal in character.
The rules of law that govern an internal armed conflict are found pri-
marily in common article 3 of the 1949 Geneva Conventions, which
provide the minimum standard of conduct in such conflicts and in Ad-

opment of International Humanitarian Law by the International Criminal

Tribunal for the Former Yugoslavia", Max Planck UNYB 2 (1998), 96 et
seq., (113 et seq.). The character of the Rwanda conflict in contrast was a
mere national one. Nevertheless, a threat to international peace and secu-
rity could be justified with serious violations of human rights law, as well
as with enormous streams of refugees heading for shelter in the neigh-
bouring states of Rwanda.
11
See article 11 of the Yugoslav Statute and article 10 of the Rwanda Statute.
12
Ibid.
13
See ibid, and in particular article 16 of the Yugoslav Statute and article 15 of
the Rwanda Statute.
14
See article 20 et seq. of the Yugoslav Statute and article 19 et seq. of the
Rwanda Statute.
15
The Rules are amended frequently. The author has used those of 14 July
2000 resp. 26 June 2000.
 Stroh, State Cooperation with the ICTY and the ICTR 253

ditional Protocol II to the Geneva Conventions. Out of that reason the

Ratione Materiae of the ICTR covers genocide, crimes against human-
ity and violations of article 3 common to the Geneva Conventions of
1949 and of the Additional Protocol II, whereas article 2 of the Yugo-
slav Statute refers to Grave Breaches of the Geneva Conventions in
general.16

II. Contents of State Cooperation

1. General Obligation to Cooperate
In para. 4 of S/RES/827 (1993) and para. 2 of S/RES/955 (1994), the Se-
curity Council decided that:
"all States shall cooperate fully with the International Criminal Tri-
bunal and its organs in accordance with the present resolution and
the Statute of the International Tribunal and that consequently all
States shall take any measures necessary under their domestic law to
implement the provisions of the present resolution and the Statute,
including the obligation of States to comply with requests for assis-
tance or orders issued by a Trial Chamber under Article 29 (resp.
Article 28) of the Statute... "
Because of the binding nature of this provision, states are obliged to
grant the International Tribunals any assistance they need. However,
the founding Resolutions speak only in general terms about the duty of
states to cooperate with the Tribunals. Specific responsibilities, com-
piled under the heading "cooperation", are delineated in the provisions
of the Statutes and, more particularly, in the RPE. In contrast to the
Statutes, the RPE are derivative law and, therefore, have no binding ef-
fect per se. However, insofar as they are in harmony with the Statutes,
the RPE are likewise binding. Furthermore, in the case of the ICTY the
obligation to cooperate also results from the General Framework

16
For the applicable law of the Rwanda Tribunal see D. Shraga/ R. Zacklin,
"The International Criminal Tribunal for Rwanda", EJIL 7 (19%), 507 et
seq. See also P. Akhavan, "The International Criminal Tribunal for
Rwanda: The Politics and Pragmatics of Punishment", AJIL 90 (1996), 501
et seq.
 254 Max Planck UNYB 5 (2001)

Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement)

and its Annexes, concluded in 1995.17
Within the Statutes, it is article 29 of the Yugoslav Statute and article
28 of the Rwanda Statute which are the central provision of state coop-
eration. These virtually identical provisions read as follows:
"1. States shall cooperate with the International Tribunal ... in the
investigation and prosecution of persons accused of committing se-
rious violations of international humanitarian law.
2. States shall comply without undue delay with any request for as-
sistance 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...."
Para. 1 of arts 29 Yugoslav Statute and 28 Rwanda Statute merely re-
peats a general request for cooperation that is already mentioned in the
founding Resolutions and affects every UN Member State. In contrast,
para. 2 refers to requests addressed to individual states whose coopera-
tion is sollicited on a case by case basis. The power of the Tribunals to
issue orders and requests is not limited to those enumerated under para.
2; the Tribunals can request the help of states in any respect they con-
sider necessary.18
The obligation to comply with such requests is equally incumbent
upon any UN Member State receiving an order, regardless of the role it
played during the conflict in former Yugoslavia or in Rwanda. Its neu-
trality or even its active participation in those conflicts has no bearing
on a state's obligation to cooperate with the International Tribunals.
It is a fundamental principle that international law can only pre-
scribe the aim a state must accomplish; it may not prescribe the method

17
For the General Framework Agreement see inter alia P. Gaeta, "The Day-
ton Agreements and International Law", EJIL 7 (1996), 147 et seq. P. Ak-
havan, "The Yugoslav Tribunal at Crossroads: The Dayton Peace Agree-
ment and Beyond", HRQ 18 (1996), 259 et seq. To discuss the General
Framework Agreement would go beyond the scope of this article.
18
E.g. Doc. S/25704, para. 125.
 Stroh, State Cooperation with the ICTY and the ICTR 255

or the means the state has to apply.19 A state usually has broad discre-
tion to decide in what manner it will implement an international duty.
Consequently, a state to whom a request for cooperation is directed by
an International Tribunal is under strict obligation to comply, although
its flexibility in implementing the request is preserved.

2. The Various Responsibilities of State Cooperation

According to the provisions of the Statutes of the International Tribu-

nals, state cooperation is mainly required in four areas:
a.- State cooperation is required for the Prosecutor's pre-trial inves-
tigations, including production of evidence, conducting of on-site in-
vestigations, service of documents, questioning of victims and wit-
nesses, and the identification and location of persons.
b.- State cooperation is further required when it comes to the exe-
cution of the Tribunals' arrest warrants and transfer orders.
c.-For the deferral of national court proceedings.
d.- Finally, state cooperation is needed in enforcing the final sen-
tences pronounced by the Tribunals.

a. State Cooperation in Pre-trial Investigations

According to para. 1 of arts 18 Yugoslav Statute and 17 Rwanda Statute,

investigation and preparation of an indictment lies with the Chief
Prosecutor and his or her Office. Like any authority charged with
criminal investigation, the Prosecutor must collect evidence, interview
witnesses, victims, and suspects, and conduct on-site investigations to
prepare an indictment. Article 18 respectively 17 empowers the Prose-
cutor to conduct such investigations on his own account. Because this
necessarily takes place on "foreign" soil, host states must defer their
sovereignty in the field of criminal investigation to the Prosecutor, ei-
ther by simple grants of permission or by direct delegation of these spe-
cific powers to the Tribunals. If required, the Prosecutor may solicit the
assistance of the state authorities concerned. Whereas arts 29 Yugoslav
Statute and 28 Rwanda Statute confer to the Tribunals' Chambers the

19
An exception from this rule is made when international law, in particular
an international treaty, expressis verbis, prescribes the way an international
duty is to be implemented.
 256 Max Planck UNYB 5 (2001)

competence to address binding orders and requests to states, the Office

of the Prosecutor is confined to seek national assistance in an informal
way. Ideally, a state empowers its national authorities to comply with
requests of the Office of the Prosecutor. If this is not the case, the
Prosecutor must ask a Trial Chamber to formally request a state to
bring about the cooperation of the authority concerned. Such formal
requests states have to carry out according to para. 2 of article 29 Yugo-
slav and article 28 Rwanda Statute.
In addition to the competences granted by the Statutes, Rule 39 (i)
of both RPE enable the Prosecutor and his Office to summon suspects,
victims and witnesses and to record their statements. Such competence
is necessary and in harmony with the Statutes. The power to question
witnesses, victims and suspects granted by arts 18 respectively 17 of the
Statutes would be void if the Prosecutor could not put those persons
under the obligation to appear before him or if he could not record
their statements.
According to Rule 39 (ii) of the Rules, the Prosecutor can undertake
any other steps deemed necessary for completing the investigation and
the preparation and conduct of the prosecution at the trial, including
the taking of special measures to provide for the safety of potential wit-
nesses and informants. To that end, the Prosecutor can seek not only
the assistance of state authorities but also the assistance of any relevant
international body, including the International Criminal Police Organi-
zation (INTERPOL).20
Rule 39 (iv) of the Rules reiterates the power of the Prosecutor to
request orders from a Trial Chamber or a Judge; however, before an or-
der can be issued, the indictment of the person concerned must be con-
firmed by a Judge.21 Since preparation for and confirmation of an in-
dictment consumes valuable time, the Prosecutor risks losing both evi-
dentiary material and suspects. Rule 40 of the Rules consequently em-
powers the Prosecutor to request in case of urgency a state to take pro-
visional measures to safeguard investigation proceedings. If so re-
quested, a state shall provide for the provisional arrest of a suspect,
seize or safeguard evidence, and protect witnesses and victimes against
injury or intimidation. Official requests for such provisional measures
are just as binding on states as orders from a Trial Chamber under arti-
cle 29 Yugoslav Statute and 28 Rwanda Statute. Nevertheless, provi-

20
Rule 39 (iii) of the Rules.
21
See para. 2 arts. 19 Yugoslav Statute and 18 Rwanda Statute.
 Stroh, State Cooperation with the ICTY and the ICTR 257

sional measures should be requested only in a case of urgency, when the

usual procedure could not be adhered to.

b. Arrest and Transfer of Persons to the International Tribunals

Another obligation incumbent upon states is as mentioned above to

carry out arrest warrants and transfer orders. Procedural aspects are
regulated by Rules 55 et seq. of the Rules. According to Rule 55 (D)
RPE of the ICTY and Rule 55 (B) RPE of the ICTR an arrest warrant is
transmitted by the Registrar of the respective Tribunal to the national
authorities of the state in whose territory or under whose jurisdiction
or control the accused was last known to reside, together with a state-
ment of rights and cautions to be read at the time of arrest, in a language
the accused understands. A state receiving an arrest warrant and trans-
fer order is obliged to ensure that national authorities execute the order
promptly and effectively.22
According to article 59 bis RPE of the ICTY, arrest and transfer or-
ders can further be transmitted to international authorities or institu-
tions with the capacity to search for and arrest accused persons. This
provision was inserted during the 9th General Assembly of the Yugo-
slav Tribunal to enable an arrest and transfer order to be forwarded to
the former Implementation Force (IFOR) and later to the Stabilization
Force (SFOR), which were established by the General Framework
Agreement for Peace in Bosnia and Herzegovina to safeguard the peace
process in Bosnia and Herzegovina.23 Whether IFOR and SFOR were
not only authorized but legally obliged to carry out an international ar-
rest warrant of the Yugoslav Tribunal was heavily disputed, given the
hesitation of IFOR to do so.24 The question remains academic, how-
ever, since, in practice, SFOR/KFOR demonstrated both a willingness
and capacity to carry out such international arrest warrants.
At the time of an arrest, a member of the Office of the Prosecutor
may be present to guarantee that the rights of the accused are protected.
This also prevents the accused from subsequently raising objections
that could invalidate an indictment. Immediately following the arrest,
national authorities must arrange for the transfer of the accused

22
See Rule 56 RPE.
23
See note 17.
24
See K. Ambos, "Zur Rechtsgrundlage der Festnahme mutmaBllicher
Kriegsverbrecher durch die SFOR im ehemaligen Jugoslawien", Juristen-
zeitung 53 (1998), 887 et seq.
 258 Max Planck UNYB 5 (2001)

through the Registrar of the respective Tribunal. Also involved in such

arrangements are the national authorities of the Tribunals' host state.25
The accused remains in custody while these arrangements are made.
Since the Statutes require that transfer is made without undue delay,26
any delay can only be accepted if the reason lies within the arrange-
ments themselves, for instance if it turns out to be difficult to get a third
state's permission to allow the accused to be transferred through its ter-
ritory. Once the necessary arrangements are met, the Registrar informs
the detention unit of the competent Tribunal of the day the accused will
arrive.
Rules 55 et seq. RPE only authorize the arrest and transfer of an ac-
cused person to the International Tribunals. A suspect does not become
an accused before the indictment is officially confirmed by a judge, at
which time a formal accusation concerning the crime in questions is
brought against the accused.27 During the time between the preparation
and confirmation of an indictment, the Prosecutor is immobilized for
lack of an arrest warrant. To avoid the escape of suspects and ensure
their future arrest, as mentioned above, the Prosecutor can request a
state to provisionally arrest.28 Furthermore, Rule 40 bis RPE29 provides
the Prosecutor with the option of requesting a judge to order an arrest
and transfer of a suspect, provided the following requirements are met:
(i) the person concerned must have already been taken into custody
(or, at least, the Prosecutor must have asked the state to do so),
(ii) the judge must conclude that the suspect could indeed have com-
mitted a crime under the jurisdiction of the Tribunal, and

25
See Rule 57 RPE.
26
See para. 2 arts 20 Yugoslav Statute and 19 Rwanda Statute.
27
Before such confirmation is given, the Prosecutor has to establish a prima-
facie case; he/she will prepare an indictment containing a concise statement
of the facts and the crime or crimes with which the accused is charged un-
der the Statute. The indictment will be transmitted to a judge who will re-
view it and eventually confirm it if he or she is satisfied that the Prosecutor
has been able to establish a prima facie case. If not satisfied, the indictment
will be dismissed. As aforementioned, such confirmation is preconditional
for the issuance of an arrest and transfer order as well as for any other or-
der that may be required for the conduct of the trial. See arts 18 and 19 of
the Yugoslav as well as arts 17 and 18 of the Rwanda Statute.
28
See Rule 40 (i) RPE.
29
Rule 40 bis RPE was added at the 1 Oth Plen. Assembly of the Yugoslav Tri-
bunal in April 1996; the Rules of the Rwanda-Tribunal were amended in
like manner on 15 May 1996.
 Stroh, State Cooperation with the ICTY and the ICTR 259

(iii) the judge must agree that an arrest is necessary to prevent the sus-
pect from fleeing, intimidating witnesses, or hampering proceed-
ings in any other way.
If requested, states not only have to surrender supposed criminals to
the International Tribunals but also witnesses who may be detained in
their national prisons. A fair trial requires both the presence of the ac-
cused and anyone who might contribute to the exploration of the ac-
cused's guilt or innocence. If necessary, a judge may summon a witness
currently serving a prison sentence in another state on the basis of Rule
90 bis (A) and (B) RPE. However, the transfer of detained witnesses
should only be requested if their presence is no longer required in na-
tional proceedings and if their stay at the Tribunal will not exceed their
term of confinement. The procedure for transferring a detained witness
to an International Tribunal is comparable to the transfer of an accused
or suspect.

c. Deferral of National Court Proceedings

According to para. 2 of article 9 Yugoslav Statute and article 8 Rwanda

Statute, the International Tribunals have primacy over national courts.
Due to this primacy, national courts may, at any stage of the procedure,
be formally requested to defer to the competence of the International
Tribunals.
As set out in Rules 8 et seq. of the Rules, deferral proceedings are
initiated by request of the Prosecutor. When a crime that has been the
subject of investigation or criminal proceedings in a court of a given
state appears to fall within the jurisdiction of a Tribunal, the Prosecutor
may request the forwarding of any relevant data.30 If the prerequisites
of Rule 9 RPE are met,31 the Prosecutor submits a formal request for
deferral to the President of the respective Tribunal, who then forwards
it to a Trial Chamber for review. If the Chamber considers a deferral
appropriate, it will formally request the state to defer its current court
proceedings. Once a trial has been deferred to a Tribunal, a completely
new trial begins. Any previous determination of a national court has no
binding effect on the Tribunals.32

30
Rule 8 RPE.
31
For those prerequisites see below.
32
Rule 12 RPE.
 260 Max Planck UNYB 5 (2001)

The Tribunals determine whether or not to exercise their compe-

tence in deferring pending national court proceedings. If they do, na-
tional courts are obliged to defer.
Such obligation does not exclude national courts from prosecuting
crimes that belong within Tribunal jurisdiction. In this way, the Inter-
national Tribunals and national courts share concurrent jurisdiction.33
Because of the universality principle, national courts can declare their
jurisdiction over serious violations of international humanitarian law,
regardless of where those crimes were committed. The mere existence
of an international institution charged with the prosecution of such
crimes does not automatically exclude national jurisdiction; rather, both
systems — one at the national, the other at the international level —
complement each other.34 National courts lose their jurisdiction only if
the Tribunals exercise their primacy.
Since national courts of any state can exercise their jurisdiction over
crimes contained in the Statutes of the Tribunals, the competence of the
latter to interrupt and absorb national proceedings represents a signifi-
cant limitation of national sovereignty in the field of criminal prosecu-
tion. When passing the Statute of the Yugoslav Tribunal, Member States
of the Security Council recommended a narrow interpretation of article
9 of the Statute.
The Tribunals do not possess absolute competence to absorb na-
tional court proceedings. Rather, they may exercise this competence
only if certain conditions set out in Rule 9 RPE are met. In case of the
RPE of the ICTY, those conditions are:
(i) the act being investigated or which is the subject of national court
proceedings is treated as an ordinary crime
(ii) there is a lack of impartiality or independence, or if the investiga-
tions or proceedings are designated to shield the accused from in-
ternational criminal responsibility, or if the case is not diligently
prosecuted, or
(iii) what is in issue is closely related to, or otherwise involves, signifi-
cant factual or legal questions which may have implications for in-
vestigations of prosecutions before the Tribunal...35

33
See para. 1 arts 9 Yugoslav Statute and 8 Rwanda Statute.
34
R. Wblfrum, "The Decentralized Prosecution of International Offences
through National Courts", in: Y. Dinstein, War Crimes in International
Law, 1996,233 et seq.
35
Cf. also Rule 9 RPE of the ICTR.
 Stroh, State Cooperation with the ICTY and the ICTR 261

The purpose of Rule 9 RPE is to assure that national proceedings

against alleged war criminals are not trivialized. Besides, the Tribunals
should be given the opportunity to exercise its jurisdiction in all cases
in which legal or factual questions of a general importance are raised.
The Tribunals do have a legitimate interest in exercising their primacy
in all cases in which a person's alleged criminal behaviour may have le-
gal or factual consequences for the investigations, prosecutions and
convictions in other cases. Questions involving international law should
be settled by the International Tribunals to ensure uniformity and con-
sistency of decision-making.
The International Tribunals cannot exercise their primacy if the
principle non bis in idem hinders a further trial. This principle, widely
accepted on both the national and international level, has been incorpo-
rated into arts 10 Yugoslav Statute and 9 Rwanda Statute and is repeated
by article 13 of the Rules. However, non bis in idem does not apply to
the International Tribunals to the same degree as it does to national
courts. According to para. 1, arts 10 Yugoslav Statute and 9 Rwanda
Statute, no person shall be tried before a national court for crimes
which have previously been tried by an International Tribunal.
In contrast, para. 2 of the provisions permits the International Tri-
bunals to prosecute an individual who has already been tried by a na-
tional court. However, such exceptions to the non bis in idem principle
are restricted to exceptional cases.
Should the Tribunals receive reliable information showing that a na-
tional court has brought criminal proceedings against a person who was
previously tried by a Tribunal, a Trial Chamber will order that court to
permanently drop its charges.36

d. Enforcement of Sentences

Another responsibility which requires state cooperation is the enforce-

ment of the Tribunals' final sentences (see in this respect also under
Section V. 3 d.) Since the International Criminal Tribunals do not oper-
ate prison facilities, sentences can only be served in national prisons.
Tribunal detention units hold accused persons only before or during a
trial. As soon as the time-limit for appeal has elapsed, a convicted per-
son is transferred to the state were he has to serve his prison term.37

36
See Rule 13 RPE.
37
See Rule 103 (B) RPE.
 262 Max Planck UNYB 5 (2001)

In theory, states could be compelled to carry out Tribunal sentences.

However, when the Statutes were adopted, this idea of compulsion was
rejected, since the execution of sentences is likely to cover a long period
of time. For this reason states should voluntarily assume this responsi-
bility. States that are willing to place their prisons at the Tribunals' dis-
posal should indicate their willingness to the Security Council.38 From
the Council's list, the Tribunals may select a state each time the question
of enforcement arises. Such imprisonment shall be in accordance with
the applicable law of the state concerned, subject to the supervision of
the International Tribunal. In making the selection, the Tribunals will
take the following items into consideration: the distances between the
enforcement state, the state in which the conflict occurred, and the
home country of the convicted person; the state's neutrality during the
Yugoslav or the Rwanda conflict; its compliance with international
prison standards; and the capacity of the state to cope with the financial
burdens of the imprisonment.39
The Tribunals supervise the execution of sentences and are at liberty
to intervene when enforcement states do not appropriately fulfil their
duty. According to Rule 104 RPE the Tribunals can also designate or
appoint a separate body that will be in charge of the supervision of
sentences.40

38
See arts 27 Yugoslav Statute and 26 Rwanda Statute and Rule 103 RPE.
39
See in this respect V. Morris/ M. Scharf, An Insider's Guide to the Interna-
tional Criminal Tribunal for the Former Yugoslavia, Vol. 1,1995,305.
40
In contrast to article 26 Rwanda Statute, which allows imprisonment in
Rwanda, article 27 Yugoslav Statute does not provide for imprisonment
being served in the successor states of the Former Yugoslavia. Given the
nature of the crimes committed during the Yugoslav conflict and given the
international character of the Yugoslav Tribunal the framers of the Yugo-
slav Tribunal decided to have sentences enforced outside the former Yugo-
slavia. However, comments on the founding resolution of the Rwanda Tri-
bunal remain silent why these reasons would not likewise apply to persons
convicted by the Rwanda Tribunal. Because of language and cultural differ-
ences, the enforcement of sentences in a different state may be harder than
the enforcement in the home country. However, enforcement in a neutral
country seems indispensable if one wants to assure that the Tribunals' sen-
tences are properly enforced. It is not completely out of question that third
persons are trying to interfere with the enforcement of the Tribunals' sen-
tences, if they sympathize with the convicted person, or if they sympathize
with the victims.
 Stroh, State Cooperation with the ICTY and the ICTR 263

As soon as national law declares a convicted person eligible for par-

don or commutation of a sentence, the enforcement state shall notify
the respective Tribunal.41 In contrast to bi- or multi-lateral agreements
on the enforcement of sentences, a state enforcing the sentence of one
of the Tribunals does not posses an exclusive right to pardon. The final
decision rests with the respective Tribunal. According to article 28
Yugoslav Statute and article 27 Rwanda Statute, the President of the
Tribunal, in consultation with the judges, "decides on the basis of the
interests of justice and the general principles of law".42 This procedure
guarantees that prisoners serving sentences in different states are treated
equally and are considered for pardon based on the same criteria. De-
spite arguments to the contrary, the Tribunals' right to pardon does not
restrict the competence of a national head of state, whose exclusive right
it is to pardon any prisoner within his own jurisdiction.43
Although the state enforcing a Tribunal sentence gains direct power
over the convicted person, he or she is still considered a prisoner of the
Tribunal that passed the sentence. Regardless of the primary responsi-
bility resting with national authorities to execute the sentence, the pris-
oner indirectly remains in custody of the Tribunal throughout the term
of imprisonment.44

41
See arts 28 Yugoslav Statute and 27 Rwanda Statute.
42
According to Rule 125 RPE, the President, in determining whether pardon
or commutation is appropriate, must take into account the gravity of the
crime or crimes for which the prisoner was convicted, the treatment of
similarly-situated prisoners, the prisoner's demonstration of rehabilitation,
as well as any substantial cooperation of the prisoner with the Prosecutor.
43
See article 60 para. 2 of the German Basic Law; article 17 of the French
Constitution; article 122 of the Dutch Constitution.
44
Moreover, it would not be in accordance with the mandate of the Tribunals,
if the final decision on pardon or commutation of sentences could be made
by a state. The International Tribunals were entrusted with the mandate to
prosecute serious violations of international humanitarian law. Prosecution
also implies the execution of prison sentences insofar as the Tribunals con-
sider it necessary. An individual state cannot be in the position to change a
decision which the International Tribunals have made on behalf of the In-
ternational Community.
 264 Max Planck UNYB 5 (2001)

e. Additional Responsibilities of States

The Rules of Procedure and Evidence contain some additional respon-

sibilities requiring the cooperation of states with the International Tri-
bunals:
-According to Rule 74 RPE, a Trial Chamber may under certain cir-
cumstances invite a state, organization or person to appear before it and
to offer legal opinions or any other contribution that could facilitate the
proper determination of a case (so-called amicus curiae).
-The assistance of national courts might be necessary in determining
the ownership of property. Para. 3 of arts 24 Yugoslav and 23 Rwanda
Statute enables a Trial Chamber to order the return of any property or
proceeds acquired by criminal conduct to the rightful owner.45 The de-
tails of restitution proceedings are set out in Rule 105 RPE. If the Trial
Chamber is able to determine the rightful owner on the balance of
probabilities, it will either order the restitution of the property or pro-
ceeds or determine some other appropriate course of action. If owner-
ship cannot be determined by the Tribunals, they will leave judgment to
the competent national authorities. It is not the mandate of the Interna-
tional Tribunals to solve problems of private law. This responsibility re-
sides with national authorities which, for factual and legal reasons, are
in a better position to do so.46
National assistance is further required in the compensation of vic-
tims.47 Although the Tribunals cannot directly rule on compensation,
their sentences do form the basis of compensatory national court deci-
sions. According to Rule 106 (B), a victim, or persons claiming through

45
The duty to restitute is partially seen as an additional punishment besides
imprisonment; in fact, its character is comparable to a civil law duty of
compensation.
46
If national courts or authorities are not able to determine rightful owner-
ship either, it is proposed that the Security Council establishes a further in-
stitution, exclusively charged with the determination of property in cases
of ethnic cleansing.
47
During the elaboration of the Yugoslav Statute, proposals to grant the Tri-
bunal the competence to decide on the matter of compensation were re-
jected. According to Resolution 808 (1993), the Tribunal was only vested
with the power to prosecute serious violations of international humanitar-
ian law. No mention was made of a power to compensate victims. Fur-
thermore, compensation proceedings and investigation would require an
enormous reservoir of financial and personal means, exceeding the limited
means of the Tribunals.
 Strob, State Cooperation with the ICTY and the ICTR 265

the victim, may bring an action in a national court or other competent

body for compensation. For the purposes of such a claim, the judgment
of the Tribunal shall be final and binding as to the criminal responsibil-
ity of the convicted person for such injury.
In addition to the provisions of the Statutes and RPE, the Annexes
to the General Framework Agreement for Peace in Bosnia and Herze-
govina contain further responsibilities that fall upon some of the suc-
cessor states of Former Yugoslavia.48
Of major interest are the duties to grant free movement and unre-
stricted access to members of the Yugoslav Tribunal,49 to exclude from
public office50 and from amnesty51 persons who are under indictment
of the Yugoslav Tribunal, and to exclude such persons from repatriation
until the Yugoslav Tribunal has been notified.52
The host states of the Tribunals, the Netherlands and Tanzania, are
obliged to cooperate even in a wider sense. In allowing the Tribunals to
operate in their countries, these states have made significant concessions
which limit their own sovereign rights. The various arrangements are
set out in the Headquarter Agreements between the United Nations
and the Kingdom of the Netherlands and the Republic of Tanzania re-
spectively.53

III. Nature of State Cooperation

According to para. 2 arts 29 Yugoslav Statute and 28 Rwanda Statute,
states must comply with any request for assistance or order issued by a

48
The Annexes to the General Framework Agreement have been signed by
and are therefore binding upon the Republic of Bosnia and Herzegovina,
the Federation of Bosnia and Herzegovina and the Republika Srpska.
49
See article XIII para. 4 of Annex 6 and article II para. para. 8 of Annex 4.
50
See article IX of Annex 4.
51
Article VI of Annex 7.
52
Article IX and Annex 1 A.
53
Agreement between the United Nations and the Kingdom of the Nether-
lands Concerning the Headquarters 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, of 27 May 1994; Agreement between the United Nations and
the United Republic of Tanzania Concerning the Headquarters of the In-
ternational Criminal Tribunal for Rwanda of 31 August 1995.
 266 Max Planck UNYB 5 (2001)

Trial Chamber of the International Tribunals. There is no legal differ-

ence between "order" and "request", both are equally binding. Conse-
quently, "request"(s) stemming from the International Tribunals carry a
different legal meaning from those made by states within the traditional
framework of international assistance in criminal matters.
In contrast to para. 2, para. 1 of arts 29 respectively 28 speaks of co-
operation between states and the International Tribunals. The term
"cooperate" refers to a joint action which is accomplished on the same
level. If several units are cooperating, none of them is subordinated to
the will of another. However, para. 2 clearly indicates that this coopera-
tion between the Tribunals and states does not take place on the same
level. States are unilaterally obliged to carry out the Tribunals' orders
and requests. States cannot invoke national law to evade an order or re-
quest of the International Tribunal. State interests are not considered
when the Tribunals issue orders or requests. The interests of a state are
subordinated to the will of the Tribunals. Thus, the relationship be-
tween states and the International Tribunals is not horizontally, but hi-
erarchically organized. In view of such hierarchy, the term "cooperate"
is not entirely accurate. It would be more appropriate to speak of na-
tional assistance.
Given the establishment of the International Tribunals on the basis
of Chapter VII of the UN Charter and the absolute necessity of na-
tional action54 for the success of the Tribunals, this hierarchical relation-
ship is not only appropriate but essential.
When a state refuses to comply with an order or request of the In-
ternational Tribunals, the President can notify the Security Council.55
Whether the Security Council decides to take action against the state
concerned remains to be seen.

IV. Necessity of State Cooperation

The cooperation of states is indispensable if the International Criminal
Tribunals for the Former Yugoslavia and for Rwanda are to fulfil their
mandate.
Though the Statutes grant the Prosecutor power to conduct on-site
investigations, gather evidence, and question witnesses, victims, and

54
See below.
55
See Rules 7 his, 11,13, 59 and 61 RPE.
 Stroh, State Cooperation with the ICTY and the ICTR 267

suspects in his own authority,56 this competence cannot be exercised

without the assistance of the state in whose territory such pre-trial in-
vestigation takes place. Criminal investigation activities are sovereign
acts belonging exclusively to the state on the territory of which those
acts are being performed (principle of territoriality). Without permission
of the respective state, other states — or non-state entities like the In-
ternational Criminal Tribunals — are excluded, in principle, from car-
rying out sovereign acts on the territory of a foreign state. An exception
to the principle of territoriality can be made by international agree-
ments. In fact, such exception is constituted by article 18 para. 2 Yugo-
slav and article 17 para. 2 Rwanda Statute. However, these provisions
do not automatically become effective in the national legal systems of
UN Member States. National law requires authorization delegating the
competence of national criminal authorities to the International Tribu-
nals. Since arts 18 and 17 are part of a Security Council Resolution un-
der Chapter VII of the UN Charter, Member States are bound by in-
ternational law to implement or grant such authorization. However,
without such authorization, the Prosecutor cannot become active in
any foreign state.
Furthermore, the Tribunals may not coerce the implementation of
their decisions. Neither the Prosecutor nor any other organ of the Tri-
bunals is authorized to force witnesses to make statements, execute an
arrest warrant, or seize documents or objects. Those measures must be
carried out by national authorities which are authorized to do so under
national law.
The assistance of national authorities is especially important for the
successful execution of arrest warrants and transfer orders. If a state
refuses to comply with an arrest and transfer order, or if it shields
someone from international prosecution, the Tribunals are paralyzed.
Without the presence of the accused at the International Tribunals,
criminal proceedings cannot be initiated. The Statutes do not provide
for a trial in absentia. The only option the Tribunals can fall back on if a
state refuses to execute an arrest and transfer order, is to initiate a so-
called Rule-61 proceeding, which permits the Trial Chamber to issue an
international arrest warrant, although it can never conclude a verdict
about the guilt or innocence of the accused.57

56
See para. 2 of article 18 Yugoslav Statute and 17 Rwanda Statute.
57
See P.P. King/ A.M. La Rosa, "The Jurisprudence of the Yugoslavia Tribu-
nal 1994-1996", EJIL 8 (1997), 123 et seq., (216 et seq.).
268 Max Planck UNYB 5 (2001)

National assistance is likewise essential when national court pro-

ceedings are deferred. National law usually does not allow for deferral
of state court proceedings to a court not linked in the chain of the na-
tional stages of appeal. States must empower their courts to defer their
proceedings to the International Criminal Tribunals, or there is no pos-
sibility for the Tribunals to absorb them. The Security Council could
vest the Tribunals with the competence to order the deferral of national
court proceedings, but it could not reach into national systems and em-
power state courts to defer a case to the Tribunals. A request for defer-
ral can only be executed if states have enabled national courts to com-
ply with requests for deferral. States are obliged to enact such authori-
zation because of the binding character of the Tribunals' founding
Resolutions. However, if states do not abide by this obligation, the Tri-
bunals have no possibility to close national court proceedings and to
initiate a trial of their own.
For the successful enforcement of sentences, the Tribunals again de-
pend on state cooperation. Though states are not obliged to indicate
their willingness to accept convicted persons (in contrast to other areas
where assistance is a strict duty), here, cooperation is nevertheless es-
sential. Without the willingness of states to open their national prison
facilities, Tribunal sentences cannot be enforced.
In his speech before the UN General Assembly in 1995, Antonio
Cassese, First President of the Yugoslav Tribunal, stressed the absolute
need of state cooperation when he declared that:
"the decisions, orders and requests of the International Tribunals
can only be enforced by others, namely national authorities. Unlike
domestic courts, the Tribunal has no enforcement agencies at its dis-
posal: without the intermediary of national authorities, it cannot
execute arrest warrants, it cannot seize evidence, it cannot compel
witnesses to give testimony, it cannot search the scene where crimes
have been allegedly committed. For all these purposes, it must turn
to State authorities and request them to take action. Our Tribunal is
like a giant who has no arms and no legs. To walk and work, he
needs artificial limbs. These artificial limbs are the State authorities;
without their help, the Tribunal cannot operate."
 Stroh, State Cooperation with the ICTY and the ICTR 269

V. National Law and State Cooperation

1. Necessity of a "Cooperation Act"

The enactment of special legislation which enables national authorities
to cooperate with the International Criminal Tribunals for The Former
Yugoslavia and for Rwanda was (and still is) necessary in most legal
systems for two reasons. First, the obligations contained in the Statutes
and RPE are of such nature that national authorities from a legal point
of view usually will need a separate legal authorization to act accord-
ingly. For example, the transfer of accused and the deferral of national
court proceedings touch upon questions as fundamental as the right of
the accused to due process and a trial by a judge. The execution of an
arrest warrant encroaches upon the accused's right to personal freedom
which is guaranteed by most constitutions. The power to question wit-
nesses and seize evidentiary material usually lies with national authori-
ties of the state on whose territory such acts are carried out. If such
rights are conferred upon the Prosecutor of the International Tribunals,
this necessarily implies a restriction of national sovereign rights for
which many constitutions require legal authorization.
It is inadequate to fall back on laws of judicial assistance in criminal
matters. The legal instruments existing in most national systems to
regulate bi- and multilateral assistance in criminal matters cannot serve
as a basis for assistance to the International Tribunals. The differences
between inter-state cooperation in criminal matters and the national as-
sistance required by the International Criminal Tribunals are too large.
Traditional requests for judicial assistance in criminal matters are usu-
ally influenced by the equality of states as well as by the exclusive sov-
ereignty of states in their own territory. Agreements regarding legal as-
sistance in criminal matters usually contain numerous grounds allowing
states to either reject a request or to set conditions. The requested state
is usually permitted to review the request and refuse it if certain condi-
tions are not met. In contrast to traditional requests for judicial assis-
tance in criminal matters, as shown above, requests of the International
Criminal Tribunals can neither be reviewed nor rejected. States are not
equipped with a discretion allowing them to review cooperation re-
quests of the International Tribunals. When requested to transfer a per-
son to the International Tribunals, national courts may only review
whether formal requirements are met and match the identity of the per-
son requested by the Tribunal for transfer with the person appre-
 270 Max Planck UNYB 5 (2001)

hended. Neither the Statutes nor the RPE provide any grounds upon
which states could justify a refusal to comply.58
Furthermore, bi- or multilateral arrangements on judicial assistance
in criminal matters usually follow the principle of reciprocity; this is
not the case with the International Criminal Tribunals. States are unilat-
erally bound to comply with orders and requests of the International
Tribunals, yet a similar obligation placed upon the Tribunals could
hardly be realized and would not be in consistency with their mandate.
As for the transfer of persons, the Statutes stress the difference between
traditional extradition requests and the request of the Tribunals by
avoiding the term "extradition". Extradition treaties usually stipulate
grounds upon which requests for extradition may be rejected, including
such grounds as the nationality of a person and affiliation with various
religious, racial, or minority groups. States are often granted the right to
review whether the crime for which extradition is requested would be
punishable under the law of the requested state. Furthermore, extradi-
tion treaties generally include a clause stipulating the punishment of
only those crimes for which extradition was requested. When requested
to transfer a person to the International Tribunals, states have to com-
ply with that request. They cannot invoke national law or reasons con-
tained hi extradition treaties to refuse compliance. With exception of
the aforementioned formalities, national authorities do not possess a
discretion which would allow them to review a request of the Interna-
tional Tribunals.
Given the fundamental differences between general international as-
sistance in criminal matters and the assistance to the International Tri-
bunals as such, the Security Council decided in the founding Resolu-
tions that:
"all States shall take any measures necessary under their domestic
law to implement the provisions of the present resolution and the
Statute...".59

58
As mentioned above, requests of the Tribunals do have the same binding
effect as orders which the Tribunals can issue on the basis of para. 2 of arts
29 Yugoslav Statute and 28 Rwanda Statute.
59
See para. 4 of Resolution 827 (1993); para. 2 of Resolution 955 (1994). To
facilitate national legislation, the Registry of the Yugoslav Tribunal pub-
lished the so-called "Tentative Guidelines for National Implementing Leg-
islation of United Nations Security Council Resolution 827 of 25 May
1993". These Guidelines are mere proposals of the Registry of the Yugoslav
Tribunal and do not have any binding effect upon states. Their intention is
 Strob, State Cooperation with the ICTY and the ICTR 271

2. Existence of "Cooperation Acts"

As of summer 2000 twenty three states have enacted a law or a similar

legal instrument which authorizes national authorities to cooperate
with the Yugoslav Tribunals.60 A couple of states have done so con-
cerning the Rwanda Tribunal.61 In some cases, such legislation applies
to both Tribunals. In some cases, where a cooperation act regarding the
Yugoslav Tribunal already existed, its provisions have simply been de-
clared applicable for the Rwanda Tribunal. In other cases, separate leg-
islation has been enacted but the provisions of both acts are virtually
identical.
Concerning the ICTY a number of states have indicated that they
do not require implementing legislation to carry out their responsibili-
ties, including the Russian Federation, the Republic of Korea, Singa-
pore and Venezuela.62 In addition, several states have indicated that
they intend to adopt implementing legislation shortly.63

to indicate those areas in which amendment of national law may be re-

quired to enable an effective cooperation between a state and the Yugoslav
Tribunal. Although the Guidelines only concern cooperation with the
Yugoslav Tribunal, they can also serve as guiding principle for legislation
regarding cooperation with the Rwanda Tribunal.
60
Those states are Australia, Austria, Belgium, Bosnia and Herzegovina,
Croatia, Denmark, Germany, Greece, Finland, France, Hungary, Iceland,
Ireland, Italy, New-Zealand, the Netherlands, Norway, Romania, Sweden,
Switzerland, Spain, the United Kingdom and the United States. (7th Anual
Report of the ICTY, Doc. A/55/273 of 7 August 2000-each year in No-
vember the President of the Tribunal submits the Report covering the ac-
tivities of the Tribunal during the preceding period 1 August-31 July).
61
E. g. Austria, Australia, Belgium, Denmark, Germany, France. New-
Zealand, the Netherlands, Norway, Sweden, Switzerland, the United King-
dom and the United States.
62
6th and 7th Annual Report of the ICTY, Docs A/54/187 of 25 August 1999
and A/55/273 of 7 August 2000.
63
Ibid.
 272 Max Planck UNYB 5 (2001)

3. Implementation of Cooperation
a. Cooperation in Pre-trial Investigations of the Prosecutor

Most cooperation acts contain a provision enabling national authorities

to conduct on-site investigations and interrogations of victims and wit-
nesses if so requested by the Prosecutor.64
Generally, national authorities are placed under the obligation to
comply with such requests. Two exceptions include cases wherein na-
tional authorities are vested with the authority to review a request. For
example under article 26 para. 3 of the Australian International War
Crimes Tribunals Act. The Attorney-General, the direct recipient of the
Tribunal's requests, is entitled to judge if the execution of a request
might endanger Australian sovereignty, security, or other national inter-
ests. If it does, or if further "special circumstances" justify the rejection
of a request, the Attorney-General is obligated not to carry it out. A
similar provision can be found in article 57 of New-Zealand's coopera-
tion act.65 It is doubtful that these provisions are in conformity with the
unrestricted obligation to execute as demanded by the Statutes of the
Tribunals.
Many cooperation acts allow a representative of the Prosecutor's
Office to be present when national authorities carry out a request of an
International Tribunal.66 However, with very few exceptions, these acts
do not enable the Prosecutor or the representatives to take action them-
selves.
Only two cooperation acts authorize the Prosecutor to act inde-
pendently on national territory. Article 7 of the Finnish cooperation act
and article 3 para. 3 of the Norwegian act allow investigators from the
Yugoslav Tribunal to question witnesses, victims, and suspects, and

64
As far as responsibility remains with national authorities, this kind of judi-
cial assistance is general practice in mutual assistance in criminal matters.
From a national perspective, it can be sufficient to expand such regulation
to the Tribunals. To allow the Prosecutor to undertake independent inves-
tigations, new legislation will be required.
65
Article 57 of the New-Zealand Cooperation Act grants the Attorney-
General of New-Zealand the competence to reject the enforcement of a re-
quest if enforcement would endanger the sovereignty, security or other na-
tional interests of New-Zealand.
66
See article 8 of the French and article 10 para. 2 of the Belgium Coopera-
tion Act.
 Stroh, State Cooperation with the ICTY and the ICTR 273

conduct an investigation without the mediation of national authorities.

If they wish, they can also seek national assistance. The German and
Austrian cooperation acts require that national authorities be notified
before the Prosecutor may begin independent investigation.67 The Swiss
and the Croatian cooperation act, the latter only applies for the ICTY,
rule that the Office of the Prosecutor first seeks permission before it
begins its activities on national territory.68 Whereas simple notification
of national authorities seems consistent with the intention and provi-
sions of the statutes it is doubtful that the requirement to obtain per-
mission is in harmony with international provisions. Given that na-
tional authorities are more familiar with people and locations, such no-
tification can also be of advantage for the Tribunals. Permission pro-
ceedings, in contrast, can cause unnecessary delay, even if national
authorities are placed under a strict obligation to grant permission. It is
a matter of particular concern, that the cooperation act of Croatia,
whose assistance is of special interest to the Yugoslav Tribunal, requires
that permission first be granted by the Croatian Government.69
Enforcement measures are usually left in the hands of the national
authorities. Since the Statutes of the International Tribunals do not em-
power the Prosecutor to apply coercion, national cooperation acts can
nevertheless be fully in accordance with international requirements.
However, it is indispensable that national cooperation acts provide for
the authorization of national authorities to take coercive measures if re-
quested by the International Tribunals.
Many cooperation acts are progressive and innovative — para. 23 of
the Swiss and para. 11 of the Austrian cooperation act enable the Tribu-
nals to send a summon directly to its addressee. According to arts. 8
and 9 of the Finnish cooperation act, witnesses are under a strict obli-
gation to follow a summon of the International Tribunal; he or she can
be penalized for perjury. According to article 7 para. 2 of the Spanish
and para. 11 of the Austrian cooperation act, witnesses can be paid in

67
See article 9 para. 1 of the Austrian and article 4 para. 4 of the German Co-
operation Act.
68
Article 22 of the Swiss and article 7 of the Croatian Cooperation Act.
69
Article 7 of the Croatian Cooperation Act reads: (English version) "The
Tribunal and the Prosecutor may with the approval of the Government of
the Republic of Croatia undertake specific actions on the territory of the
Republic of Croatia in order to investigate the crimes under its jurisdiction,
except the actions which require force or encroach upon the fundamental
rights and freedoms of citizens."
 274 Max Planck UNYB 5 (2001)

advance for their travel expenses to the International Tribunals. And

arts 36 et seq. of the New-Zealand and arts 41 et seq. of the Australian
cooperation acts contain provisions permitting the Tribunals to sit in
their territory should the Tribunals no longer be hosted by the Nether-
lands or by Tanzania.

b. Arrest and Transfer of Persons

Nearly all the cooperation acts implement the obligation of states to

carry out arrest warrants and transfer orders of the International Tribu-
nals. Each contain a provision, with one exception,70 authorizing na-
tional authorities to arrest a person on the basis of a Tribunal's arrest
warrant and to transfer him or her to the respective Tribunal.71
Due to their binding character, transfer orders of the International
Tribunals could be interpreted to the effect that national authorities can
execute them directly and automatically, without the involvement of a
judge or a national court which could guarantee that the rights of the
accused are observed. The requirements of the Statutes and the Rules of
Procedure and Evidence regarding transfer proceedings are few. Rule 55
(E) RPE of the ICTY only prescribes that the accused at the time of ar-
rest must be informed of his rights and of the crimes he is charged with.
However, national law requires more than simply informing accused
persons about their rights and the crimes laid to their charge. Most legal
systems require the observation of basic rights if a person's subjective
rights are going to be encroached.72 With the exception of Australia and
New-Zealand, all cooperation acts provide for the involvement of a
judge or a national court so that the person concerned at least obtains
the possibility to claim a mistake of identity. Some acts grant the right

70
The Hungarian Cooperation Act simply refers to national law.
71
Although the majority of the Tribunals' indictees will very likely sojourn in
the territory of the Successor States of the Former Yugoslavia or in Rwanda
and its neighbouring states, this must not always be the case. Suspects and
accused of both Tribunals have been arrested in different states all over the
world. Even if the arrest of an accused seems to be unlikely because of the
state's distance to the scene of the crimes, states need to have a regulation
which allows the arrest and the transfer of the person concerned. Further-
more, the Tribunals can issue international arrest warrants on the basis of
Rule 61 RPE which have binding effect on each UN Member State.
72
Chr. Tomuschat, Sitzungsbericht Q - des Deutscken Juristentags, 1994, 53 et
seq., (66).
 Stroh, State Cooperation with the ICTY and the ICTR 275

to appeal against the decision of the court of first instance.73 Article 23

of the Croatian cooperation act even permits a constitutional claim
against the decision of the court of appeal. However, those courts are
not entitled to review legal aspects of the arrest warrant. Due to the un-
conditional and unrestricted obligation of states to execute the Tribu-
nals' transfer orders, the discretion of a judge or court for review is re-
duced to a limited number of formal questions.74
Particular problems may arise when a state is requested to transfer
one of its own citizens. Numerous constitutions prohibit the extradi-
tion of nationals. This mainly applies to states that follow the conti-
nental system. Common law states usually do permit the extradition of
nationals;75 they make exceptions only on the basis of the principle of
reciprocity. Common law states refuse the extradition of nationals if,
within the framework of a bi- or multilateral agreement, the state re-
questing extradition does not extradite its own nationals.
The problem of transferring nationals is treated differently by dif-
ferent cooperation acts. States whose national law generally allows the
extradition of nationals either permit the transfer of nationals to the
Tribunals or have not ruled on the matter at all.76 Some states whose

73
See article 12 § 1 para. 4 and 5 of the Belgian Cooperation Act; article 26
Cooperation Act of Bosnia and Herzegovina; article 13 of the French; arti-
cle 11 para. 2 of the Italian and article 3 para. 2 of the German Cooperation
Act in connection with § 42IRG.
74
With view to transfer proceedings, some cooperation acts fall back on pro-
visions regulating interstate extradition proceedings and hereby render in-
applicable those provisions which are not consistent with the binding char-
acter of a transfer request. See, for instance, the Cooperation Acts of Ger-
many, Denmark, Finland, Norway, the Netherlands and Sweden. Other
Cooperation Acts have introduced special transfer proceedings; see the
Cooperation Acts of Australia and New-Zealand, Belgium, Bosnia-
Herzegowina, France, Italy, Croatia and the United States. If formal re-
quirements are met, national authorities are obliged to transfer the person
in question to the requesting Tribunal. For reasons other than that, a
transfer order cannot be rejected. However, the cooperation acts of Aus-
tralia and New-Zealand allow the rejection of a transfer order in cases
where national authorities determine "special circumstances". See article 16
para. 2 of the Australian and article 12 para. 2 of the New-Zealand Coop-
eration Act.
75
M. Bassiouni, International Extradition: United States Law and Practice,
1996.
76
See the Cooperation Acts of Australia, New-Zealand, the United States and
the United Kingdom.
 276 Max Planck UNYB 5 (2001)

constitutions principally forbid the extradition of nationals consider the

transfer to the Tribunals as a new legal instrument to which extradition
laws do not apply. Therefore, a special regulation in their cooperation
acts was considered unnecessary.77 Other states consider the transfer of
nationals to the Tribunals as a subcase of extradition to which national
extradition law generally applies. The prohibition of extradition of na-
tionals, however, cannot be applied because the law of the Tribunals
does not provide for such exception. Those states,78 therefore, did not
consider it necessary to implement a special permission of extradition
of nationals. Still other states are of the opinion that prohibiting the ex-
tradition of nationals would also apply to the transfer of persons to the
International Tribunals.79 Those states have had to amend their national
law to allow the transfer of nationals to the Tribunals. Their coopera-
tion acts expressly provide for an authorization on the basis of which
national authorities are empowered to transfer nationals to the Interna-
tional Tribunals.80

c. Deferral of National Court Proceedings

A deferral of national court proceedings can have a fundamental impact

on the rights of the accused, in particular on his or her right to due pro-
cess. Furthermore, numerous constitutions contain a prohibition
against exceptional courts. National courts or judicial authorities81 re-
quested to defer a case to the Tribunals usually need legal authorization
to comply with such a request. Even so, only a small number of coop-
eration acts provide for special deferral proceedings.82 According to
such regulation, national courts have to review whether the crime for

77
This is the case for the Belgium, the French, the Croatian, the Dutch and
the Spanish Cooperation Act.
78
Denmark, Finland, Norway, Sweden and Hungary.
79
Germany, Switzerland and Austria.
80
See article 5 of the Austrian and article 10 para. 2 of the Swiss Cooperation
Act. Article 3 para. 1 of the German Cooperation Act.
81
In some states, investigations are carried out by authorities that are not
connected to a court. According to Rule 8 RPE, those authorities are
obliged to comply with the Tribunals' requests for deferral, too.
82
These are the cooperation acts of Belgium, Germany, France, Italy, Croatia,
Austria, Spain, Switzerland, Sweden and the United Kingdom. Other acts
authorize national courts to close pending proceedings if the same case is
tried before one of the International Tribunals, but they do not empower
them to defer to the Tribunals.
 Stroh, State Cooperation with the ICTY and the ICTR 277

which a deferral is requested belongs within the jurisdiction of the Tri-

bunal, and whether the deferral concerns the crime that is subject of the
present proceedings. If both conditions are met, courts are not only
authorized but obliged to defer proceedings to the requesting Tribunal.
Some cooperation acts provide for a hearing before deferral is granted
in order to give all parties the opportunity to present their opinion.83
Against this decision, parties have the right to appeal.84
Some cooperation acts provide for the re-opening or continuation of
national proceedings in case an International Tribunal decides not to
commence a trial of its own.85

d. Enforcement of Sentences

Though states cannot be compelled by unilateral order to enforce the

Tribunals' sentences, they are expected to indicate such willingness be-
cause of their general duty to cooperate with the International Tribu-
nals, according to para. 1 of arts 29 Yugoslav and 28 Rwanda Statute re-
spectively. The Secretary-General and the International Tribunals
through their Presidents and their Registries have addressed several
letters to states in which they asked for national assistance regarding the
enforcement of sentences.
In the first years, some states had indicated to the Yugoslav Tribunal
their willingness to enforce sentences of the Yugoslav Tribunal.86 Some
had indicated that they are not in the position to enforce sentences of
the Yugoslav Tribunal.87 Others have made certain reservations, such as

83
See e.g. article 6 of the Belgium and article 9 para. 3 of the Croatian coop-
eration act. The latter provides for a hearing even in the absence of the ac-
cused.
84
According to article 9 paras 4 and 5 of the Croatian Cooperation Act and
article 3 para. 2 of the Italian act, all participants have the right to appeal to
the Supreme Court within 8 days after the court of first instance issued its
decision. The Supreme Court can confirm the decision of first instance, or
it can amend or reject it. During the appeal, the case is suspended, i.e. it
cannot be deferred to the requesting Tribunal.
85
See for instance article 8 of the Belgian and article 4 para. 4 of the Austrian
Cooperation Act.
86
Pakistan, Bosnia and Herzegovina, Germany, Finland, the Islamic Republic
of Iran, Italy, Croatia, Denmark, Spain and Sweden. See Yearbook of the
ICTY 1996,196 et seq.
87
Bahamas, Belize, Burkina Faso, Ecuador, France, Liechtenstein, Malaysia,
Poland and Slovenia. See Yearbook of the ICTY 1996,197.
 278 Max Planck UNYB 5 (2001)

when the convicted person is a national of or has comparable link to the

enforcement state.88 Others have limited the number of persons they
would be willing to accept.89 The Netherlands, as the host state of the
Yugoslav-Tribunal, has asked not to be the first state to enforce a sen-
tence of the Yugoslav Tribunal.90 Other states have indicated their gen-
eral willingness to accept convicted persons but reserve the right to de-
cide upon a case by case decision.91 As for enforcing the sentences of
the Rwanda Tribunal, most African states, where the enforcement
should preferably be done, have declared themselves unable to execute
the Tribunal's sentences.92
During 1999 three states have concluded agreements with the
United Nations on the enforcement of sentences concerning the ICTY.
On 23 July 1999, Sweden signed an agreement. In addition, an agree-
ment with Spain was initialled on 18 June 1999. At the end of 1999 a
total of five states had signed agreements: Austria, Finland, Italy, Nor-
way and Sweden. The number increased in 2000 to seven after France
and Spain signed Agreements.93 Other states have indicated in 1999 and
2000 their willingness to either the Security Council, the Secretary-
General or the President of the Tribunal, to enforce sentences of the
Tribunal, although an agreement has not yet been concluded. These are
Bosnia and Herzegovina, Croatia, Denmark, Germany, the Islamic Re-

88
See notification of Sweden to the Registrar of the Yugoslav Tribunal of 19
December 1994, see Yearbook of the ICTY 1994,163 (French version).
89
See notification of Norway of 1 February 1995, see Yearbook of the ICTY
1995, 320.
90
See A. Klip, "Nederland en de Internationale strafgerechtshoven voor
Rwanda en het voormalige Joegoslavie", Tijdsckrift voor de Recbterlijke
Macht 1997,22 et seq.
91
See notification of Denmark to the Registrar of the Yugoslav Tribunal of 6
December 1994, see Yearbook of the ICTY 1994,162, footnote 4.
92
But on 12 February 1999, the Registrar of the Tribunal and the Govern-
ment of Mali signed an agreement on the enforcement of the Tribunal's
sentences. This made Mali the first country to provide prison facilities for
the enforcement of the Tribunal's sentences. The Republic of Benin became
the second country to sign such an agreement on 26 August 1999. The
Kingdom of Swaziland became the third country, and the agreement was
signed on 30 August 2000. Belgium, Denmark, Norway and some African
countries have also indicated their willingness to incarcerate (Fact Sheet of
the ICTR No. 6).
93
6th Annual Report of the Tribunal, Doc. A/54/187 of 25 August 1999 and
7th Annual Report Doc. A/55/273 of 7 August 2000.
 Stroh, State Cooperation with the ICTY and the ICTR 279

public of Iran, and Pakistan.94 The provisions of those Agreements,

which were elaborated according to a "model" agreement, indicate the
authority to which enforcement requests must be directed, and describe
the procedure for transferral of the convicted person to the enforcement
state.95 Another provision allows the International Committee of the
Red Cross (ICRC) to regularly check the conditions of the imprison-
ment.96 According to article 13 of the Enforcement Agreements, the
Agreements themselves remain in force for the duration of the impris-
onment. Article 13 is of major significance since the Yugoslav Tribunal,
will be in existence only for a limited time. The question arose whether
its sentences could still be enforced once the Tribunal has been disman-
tled. Article 13 of the Enforcement Agreements has solved this problem
since one party of the Agreements is the United Nations Organization,
not the Yugoslav Tribunal. Therefore, a state is answerable to the UN in
its duty to enforce a sentence of the Yugoslav Tribunal.

VI. State Cooperation in Practice

Requests for deferral are rare. Since their financial and personal means
are limited, the Tribunals make use of their primacy only in exceptional
cases. Unless deferral is due to one of the reasons set out in Rule 9 RPE,
trials are preferably left with national courts. In very few cases where
states have been requested to defer, they have complied without hesita-
tion. As to the enforcement of sentences, it has already been pointed
out that the Tribunals cannot issue binding orders to states. In practice,
state cooperation in pre-trial investigations and the execution of arrest
and transfer orders are of primary interest.
The necessity of state cooperation and the consequences of a state's
failure to cooperate became evident during the so-called subpoena issue
that took place before the Yugoslav Tribunal in 1997 in the case of
Prosecutor v. T. Blaskic.97 Upon request of the Prosecutor, a Judge di-
rected an order to Bosnia and Herzegovina and Croatia, and their re-
spective state officials.98 They were requested to produce certain docu-

94
See above.
95
See arts 2 and 3 of the Agreements on the Enforcement of Sentences.
96
See article 6 para. 1 of the Agreements on the Enforcement of Sentences.
97
CaseNo.IT-95-14-PT.
98
The competent state officials were the Croatian Defence Minister, and for
Bosnia and Herzegovina, the "Custodian of the records of the Central Ar-
 280 Max Planck UNYB 5 (2001)

ments that would serve as evidence in the Blaskic Case. Whereas Bosnia
and Herzegovina tried its best to comply with the order, Croatia denied
the competence of the Yugoslav Tribunal to address a subpoena duces
tecum to a state and its officials. Thereafter, special proceedings took
place in which the parties to the Blaskic Case as well as various other
states and scholars could present their legal opinions about the compe-
tence of the Yugoslav Tribunal to bring about the cooperation of a state,
and the state's duty to respond to Tribunal orders. Since Croatia ap-
pealed against the decision of the Trial Chamber, it took the Tribunal
more than half a year to determine the limits of its competences and
even longer to obtain (some of) the documents requested." As the sub-
poena issue shows, even one state reluctant to cooperate with the Inter-
national Tribunals can hamper their proceedings and can become a
stumbling block in fulfilling their mandate.100
In practise, the carrying out of the Tribunals' arrest and transfer or-
ders is varied. States to whom arrest and transfer orders of the Yugoslav
Tribunal have been addressed (mainly successor states of the former
Yugoslavia) have initially been unable or unwilling to execute such or-

chive of what was formerly the Ministry of Defense of the Croatian Com-
munity of Herceg Bosna." Since the Ministry of Defence of the former
Croat Community Herceg-Bosna had ceased to exist, both the Bosnian
Government and the ordering judge held the Custodian was responsible
for cooperation with the Yugoslav Tribunal.
99
"Similarly, the Appeals Chamber found that the Tribunal did not have the
inherent judicial power to subpoena a State or its officials whereas they did
have the power to subpoena an individual by virtue of this source of
power", D. Sarooshi, "The Powers of the United Nations International
Criminal Tribunals", Max Planck UNYB 2 (1998), 141 et seq., (153), with
further references. See also P. Malanczuk, "A note on the Judgement of the
Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia on the Issuance of Subpoena Duces Tecum in the Blaskic Case",
Yearbook of International Humanitarian Law 1 (1998), 229 et seq.
100
Although the Rwanda Tribunal is not bound expressis verbis by the deci-
sions and statements of the Yugoslav Tribunal, the decisions of the sub-
poena issue can also be applied by the Rwanda Tribunal since they concern
very basic questions about the Tribunals' basic law. When establishing the
Rwanda Tribunal, the Security Council wanted to equip it with exactly the
same competences as the Yugoslav Tribunal. Therefore, the competences of
the Rwanda Tribunal should be defined in the same way as those of the
Yugoslav Tribunal. Practise has already shown, that the Rwanda Tribunal is
keen on following general decisions and statements of the Yugoslav Tribu-
nal.
 Stroh, State Cooperation with the ICTY and the ICTR 281

ders.101 It took a long time before the Yugoslav Tribunal could get hold
of its first accused. IFOR also hesitated to execute international arrest
warrants of the Yugoslav Tribunal.102 103
Arrest and transfer warrants of the Rwanda Tribunal have been exe-
cuted promptly and willingly by nearly all states to which such orders
have been addressed. Arrest and transfer orders of the Rwanda Tribunal
have mostly been addressed to African States, in particular to Kenya,
Cameroon, Zambia and the Ivory Coast, but also to some European
states as Belgium and Switzerland. Mention should be made of the
spectacular Naki (Nairobi-Kigali) operation of 1997, in the course of
which seven accused or suspects of the Rwanda Tribunal were arrested
and transferred to the Rwanda Tribunal.104 Among those were the for-
mer minister of Rwanda for Family and Women's Affairs, the first
women ever to be accused by an international tribunal.105

VII. Conclusion
As practice shows, it depends for the most part on the cooperation of
states whether the International Criminal Tribunals for the Former
Yugoslavia and for Rwanda can fulfil their mandate and prosecute seri-
ous violations of international humanitarian law committed during the
Yugoslav and the Rwanda conflicts. The Tribunals have been equipped
with far-reaching legal and institutional means to guarantee an efficient

101
In particular Bosnia and Herzegovina seemed to be willing but did not
have the necessary means to carry out arrest warrants of the Yugoslav Tri-
bunal. The attitude of Croatia, which in the beginning was rather reluctant
to execute such orders, seems to be changing. Only the Republic of Serbia
and Montenegro has demonstrated that it is not willing to cooperate with
the Yugoslav Tribunal.
102
As mentioned above, SFOR/ KFOR is undoubtedly authorized to execute
international arrest warrants of the Yugoslav Tribunal. Whether it is put
under obligation to do so, remains a contentious issue. However, this issue
has lost its practical importance since SFOR had proved its willingness to
execute arrest warrants of the Yugoslav Tribunal.
103
The Yugoslav Tribunal has expressed it appreciation of the cooperation in it
5th Annual Report as well as in the 6th. and 7th.
104
See C. Cisse, "The End of a Culture of Impunity in Rwanda?", Yearbook
of International Humanitarian Law 1 (1998), 161 et seq.
105
See for further developments the 5th Annual Report of the Tribunal, Doc.
A/ 55/435 of 2 October 2000.
 282 Max Planck UNYB 5 (2001)

prosecution of such crimes. If the Tribunals are unable to fulfil their

mandate, it will be the fault of the International Community.
The Tribunals remain paralyzed if their orders are not carried out. It
is especially important that states cooperate in executing arrest warrants
and transfer orders. If they do not, an international organization or in-
stitution, as a last resort, can step in and remedy the situation. Thanks
to the efforts of SFOR/KFOR, the Yugoslav Tribunal successfully initi-
ated criminal proceedings against some (major) criminals of the Yugo-
slav conflict. On the other hand, the example of the Rwanda Tribunal
demonstrates that such an international force is not necessary if states
fulfil their part and assist the Tribunal as prescribed by the Statutes.
The example of the Rwanda Tribunal further shows that a coopera-
tion act is not necessarily needed to foster successful cooperation be-
tween the International Tribunals and states. Not one of the African
states that have executed arrest and transfer orders of the Rwanda Tri-
bunal had a legal instrument at their disposal authorizing national
authorities to comply with such order. On the contrary the Yugoslav
example made clear that the mere existence of a cooperation act is not
necessarily an indication of a state's willingness to cooperate with the
Tribunals. Some European states have enacted very clear cooperation
acts, but when asked to execute an order, they claimed that compliance
might threaten national security or similar national interests.
It is noteworthy that the persons currently facing trial at the
Rwanda Tribunal are, without exception, the main instigators of the
atrocities committed during the Rwanda conflict. Most of them held
key positions in politics, media or the economy before and during the
civil war. Until recently those standing trial before the Yugoslav Tribu-
nal, were merely pawns of those who were primarily responsible for the
atrocities. This is not to say that minor war criminals should not be
prosecuted; every participant in the crimes should be subject to prose-
cution. However, because the resources of the International Tribunals
are limited and their credibility is at stake, minor criminals should be
left to the national courts which can exercise their jurisdiction accord-
ing to the principle of universality. The extradition of Slobodan
Milosevic to the ICTY in July 2001 and the fact that B. Plavsic, for-
merly a member of the Presidency of the so called Serbian Republic of
Bosnia and Herzegovina, and a member of the supreme command of
the armed forces of the Serbian republic, who is indicted currently at
the ICTY, have changed the picture for the ICTY.
Should serious violators of international humanitarian law princi-
pally be prosecuted by an international court? It may be argued that
Stroh, State Cooperation with the ICTY and the ICTR 283

leaving this task with national courts would preserve valuable re-
sources. However, to ensure the equal dispensation of justice, to con-
tribute to national reconciliation, and because of the preventative func-
tion of a criminal court, prosecution of violations of international hu-
manitarian law should be handled by an international court. Even so,
the aim of an international court should be the prosecution and convic-
tion of the key figures.