Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) [Contains text of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991]

Introduction

1.       By paragraph 1 of resolution 808 (1993) of 22 February 1993, the Security Council decided "that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991".

2.       By paragraph 2 of the resolution, the Secretary-General was requested "to submit for consideration by the Council at the earliest possible date, and if possible no later than 60 days after the adoption of the present resolution, a report on all aspects of this matter, including specific proposals and where appropriate options for the effective and expeditious implementation of the decision [to establish an international tribunal], taking into account suggestions put forward in this regard by Member States." 

3.       The present report is presented pursuant to that request. 1/

A

4.       Resolution 808 (1993) represents a further step taken by the Security Council in a series of resolutions concerning serious violations of international humanitarian law occurring in the territory of the former Yugoslavia.

5.       In resolution 764 (1992) of 13 July 1992, the Security Council reaffirmed that all parties to the conflict are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches.

6.       In resolution 771 (1992) of 13 August 1992, the Security Council expressed grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia and especially in Bosnia and Herzegovina, including reports of mass forcible expulsion and deportation of civilians, imprisonment and abuse of civilians in detention centres, deliberate attacks on non-combatants, hospitals and ambulances, impeding the delivery of food and medical supplies to the civilian population, and wanton devastation and destruction of property.  The Council strongly condemned any violations of international humanitarian law, including those involved in the practice of "ethnic cleansing", and demanded that all parties to the conflict in the former Yugoslavia cease and desist from all breaches of international humanitarian law.  It called upon States and international humanitarian organizations to collate substantiated information relating to the violations of humanitarian law, including grave breaches of the Geneva Conventions, being committed in the territory of the former Yugoslavia and to make this information available to the Council.  Furthermore, the Council decided, acting under Chapter VII of the Charter of the United Nations, that all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, should comply with the provisions of that resolution, failing which the Council would need to take further measures under the Charter.

7.       In resolution 780 (1992) of 6 October 1992, the Security Council requested the Secretary-General to establish an impartial Commission of Experts to examine and analyse the information as requested by resolution 771 (1992), together with such further information as the Commission may obtain through its own investigations or efforts, of other persons or bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia.

8.       On 14 October 1992 the Secretary-General submitted a report to the Security Council pursuant to paragraph 3 of resolution 780 (1992) in which he outlined his decision to establish a five-member Commission of Experts (S/24657).  On 26 October 1992, the Secretary-General announced the appointment of the Chairman and members of the Commission of Experts.

9.       By a letter dated 9 February 1993, the Secretary-General submitted to the President of the Security Council an interim report of the Commission of Experts (S/25274), which concluded that grave breaches and other violations of international humanitarian law had been committed in the territory of the former Yugoslavia, including wilful killing, "ethnic cleansing", mass killings, torture, rape, pillage and destruction of civilian property, destruction of cultural and religious property and arbitrary arrests.  In its report, the Commission noted that should the Security Council or another competent organ of the United Nations decide to establish an ad hoc international tribunal, such a decision would be consistent with the direction of its work.

10.      It was against this background that the Security Council considered and adopted resolution 808 (1993).  After recalling the provisions of resolutions 764 (1992), 771 (1992) and 780 (1992) and, taking into consideration the interim report of the Commission of Experts, the Security Council expressed once again its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuation of the practice of "ethnic cleansing".  The Council determined that this situation constituted a threat to international peace and security, and stated that it was determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.  The Security Council stated its conviction that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace.

11.      The Secretary-General wishes to recall that in resolution 820 (1993) of 17 April 1993, the Security Council condemned once again all violations of international humanitarian law, including in particular, the practice of "ethnic cleansing" and the massive, organized and systematic detention and rape of women, and reaffirmed that those who commit or have committed or order or have ordered the commission of such acts will be held individually responsible in respect of such acts.

B

12.      The Security Council's decision in resolution 808 (1993) to establish an international tribunal is circumscribed in scope and purpose:  the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.  The decision does not relate to the establishment of an international criminal jurisdiction in general nor to the creation of an international criminal court of a permanent nature, issues which are and remain under active consideration by the International Law Commission and the General Assembly.

C

13.      In accordance with the request of the Security Council, the Secretary-General has taken into account in the preparation of the present report the suggestions put forward by Member States, in particular those reflected in the following Security Council documents submitted by Member States and noted by the Council in its resolution 808 (1993):  the report of the committee of jurists submitted by France (S/25266), the report of the commission of jurists submitted by Italy (S/25300), and the report submitted by the Permanent Representative of Sweden on behalf of the Chairman-in-Office of the Conference on Security and Cooperation in Europe (CSCE) (S/25307).  The Secretary-General has also sought the views of the Commission of Experts established pursuant to Security Council resolution 780 (1992) and has made use of the information gathered by that Commission.  In addition, the Secretary-General has taken into account suggestions or comments put forward formally or informally by the following Member States since the adoption of resolution 808 (1993):  Australia, Austria, Belgium, Brazil, Canada, Chile, China, Denmark, Egypt,* Germany, Iran (Islamic Republic of),* Ireland, Italy, Malaysia,* Mexico, Netherlands, New Zealand, Pakistan,* Portugal, Russian Federation, Saudi Arabia,* Senegal,* Slovenia, Spain, Sweden, Turkey,* United Kingdom of Great Britain and Northern Ireland, United States of America and Yugoslavia.  He has also received suggestions or comments from a non-member State (Switzerland).

14.      The Secretary-General has also received comments from the International Committee of the Red Cross (ICRC) and from the following non-governmental organizations:   Amnesty International, Association Internationale des Jeunes Avocats, Ethnic Minorities Barristers' Association, Fédération internationale des femmes des carrières juridiques, International Criminal Police Organization, Jacob Blaustein Institution for the Advancement of Human Rights, Lawyers Committee for Human Rights, National Alliance of Women's Organisations (NAWO), and Parliamentarians for Global Action.  Observations have also been received from international meetings and individual experts in relevant fields. 

15.      The Secretary-General wishes to place on record his appreciation for the interest shown by all the Governments, organizations and individuals who have offered valuable suggestions and comments.

D

16.      In the main body of the report which follows, the Secretary-General first examines the legal basis for the establishment of the International Tribunal foreseen in resolution 808 (1993).  The Secretary-General then sets out in detail the competence of the International Tribunal as regards the law it will apply, the persons to whom the law will be applied, including considerations as to the principle of individual criminal responsibility, its territorial and temporal reach and the relation of its work to that of national courts.  In succeeding chapters, the Secretary-General sets out detailed views on the organization of the international tribunal, the investigation and pre-trial proceedings, trial and post-trial proceedings, and cooperation and judicial assistance.  A concluding chapter deals with a number of general and organizational issues such as privileges and immunities, the seat of the international tribunal, working languages and financial arrangements.

17.      In response to the Security Council's request to include in the report specific proposals, the Secretary-General has decided to incorporate into the report specific language for inclusion in a statute of the International Tribunal.  The formulations are based upon provisions found in existing international instruments, particularly with regard to competence ratione materiae of the International Tribunal.  Suggestions and comments, including suggested draft articles, received from States, organizations and individuals as noted in paragraphs 13 and 14 above, also formed the basis upon which the Secretary-General prepared the statute.  Texts prepared in the past by United Nations or other bodies for the establishment of international criminal courts were consulted by the Secretary-General, including texts prepared by the United Nations Committee on International Criminal Jurisdiction, 2/ the International Law Commission, and the International Law Association.  Proposals regarding individual articles are, therefore, made throughout the body of the report; the full text of the statute of the International Tribunal is contained in the annex to the present report.

I.     THE LEGAL BASIS FOR THE ESTABLISHMENT OF THE INTERNATIONAL TRIBUNAL

18.      Security Council resolution 808 (1993) states that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.  It does not, however, indicate how such an international tribunal is to be established or on what legal basis.

19.      The approach which, in the normal course of events, would be followed in establishing an international tribunal would be the conclusion of a treaty by which the States parties would establish a tribunal and approve its statute.  This treaty would be drawn up and adopted by an appropriate international body (e.g., the General Assembly or a specially convened conference), following which it would be opened for signature and ratification.  Such an approach would have the advantage of allowing for a detailed examination and elaboration of all the issues pertaining to the establishment of the international tribunal.  It also would allow the States participating in the negotiation and conclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not.

20.      As has been pointed out in many of the comments received, the treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force.  Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective.

21.      A number of suggestions have been put forward to the effect that the General Assembly, as the most representative organ of the United Nations, should have a role in the establishment of the international tribunal in addition to its role in the administrative and budgetary aspects of the question.  The involvement of the General Assembly in the drafting or the review of the statute of the International Tribunal would not be reconcilable with the urgency expressed by the Security Council in resolution 808 (1993).  The Secretary-General believes that there are other ways of involving the authority and prestige of the General Assembly in the establishment of the International Tribunal.

22.      In the light of the disadvantages of the treaty approach in this particular case and of the need indicated in resolution 808 (1993) for an effective and expeditious implementation of the decision to establish an international tribunal, the Secretary-General believes that the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII of the Charter of the United Nations.  Such a decision would constitute a measure to maintain or restore international peace and security, following the requisite determination of the existence of a threat to the peace, breach of the peace or act of aggression. 

23.      This approach would have the advantage of being expeditious and of being immediately effective as all States would be under a binding obligation to take whatever action is required to carry out a decision taken as an enforcement measure under Chapter VII.

24.      In the particular case of the former Yugoslavia, the Secretary-General believes that the establishment of the International Tribunal by means of a Chapter VII decision would be legally justified, both in terms of the object and purpose of the decision, as indicated in the preceding paragraphs, and of past Security Council practice.

25.      As indicated in paragraph 10 above, the Security Council has already determined that the situation posed by continuing reports of widespread violations of international humanitarian law occurring in the former Yugoslavia constitutes a threat to international peace and security.  The Council has also decided under Chapter VII of the Charter that all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, shall comply with the provisions of resolution 771 (1992), failing which it would need to take further measures under the Charter.  Furthermore, the Council has repeatedly reaffirmed that all parties in the former Yugoslavia are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches.

26.      Finally, the Security Council stated in resolution 808 (1993) that it was convinced that in the particular circumstances of the former Yugoslavia, the establishment of an international tribunal would bring about the achievement of the aim of putting an end to such crimes and of taking effective measures to bring to justice the persons responsible for them, and would contribute to the restoration and maintenance of peace.

27.      The Security Council has on various occasions adopted decisions under Chapter VII aimed at restoring and maintaining international peace and security, which have involved the establishment of subsidiary organs for a variety of purposes.  Reference may be made in this regard to Security Council resolution 687 (1991) and subsequent resolutions relating to the situation between Iraq and Kuwait.

28.      In this particular case, the Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature.  This organ would, of course, have to perform its functions independently of political considerations;  it would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions.  As an enforcement measure under Chapter VII, however, the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto.

29.      It should be pointed out that, in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to "legislate" that law.  Rather, the International Tribunal would have the task of applying existing international humanitarian law.

30.      On the basis of the foregoing considerations, the Secretary-General proposes that the Security Council, acting under Chapter VII of the Charter, establish the International Tribunal.  The resolution so adopted would have annexed to it a statute the opening passage of which would read as follows:

Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, 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 (hereinafter referred to as "the International Tribunal") shall function in accordance with the provisions of the present Statute.

II.  COMPETENCE OF THE INTERNATIONAL TRIBUNAL

31.      The competence of the International Tribunal derives from the mandate set out in paragraph 1 of resolution 808 (1993).  This part of the report will examine and make proposals regarding these fundamental elements of its competence:  ratione materiae (subject‑matter jurisdiction), ratione personae (personal jurisdiction), ratione loci (territorial jurisdiction) and ratione temporis (temporal jurisdiction), as well as the question of the concurrent jurisdiction of the International Tribunal and national courts.

32.      The statute should begin with a general article on the competence of the International Tribunal which would read as follows:

Article 1
Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

A.  Competence ratione materiae (subject-matter jurisdiction)

33.      According to paragraph 1 of resolution 808 (1993), the international tribunal shall prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.  This body of law exists in the form of both conventional law and customary law.  While there is international customary law which is not laid down in conventions, some of the major conventional humanitarian law has become part of customary international law.

34.      In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.  This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.

35.      The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in:  the Geneva Conventions of 12 August 1949 for the Protection of War Victims; 3/ the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; 4/ the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; 5/ and the Charter of the International Military Tribunal of 8 August 1945. 6/

36.      Suggestions have been made that the international tribunal should apply domestic law in so far as it incorporates customary international humanitarian law.  While international humanitarian law as outlined above provides a sufficient basis for subject-matter jurisdiction, there is one related issue which would require reference to domestic practice, namely, penalties (see para. 111 below).

Grave breaches of the 1949 Geneva Conventions

37.      The Geneva Conventions constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts.  These Conventions regulate the conduct of war from the humanitarian perspective by protecting certain categories of persons:  namely, wounded and sick members of armed forces in the field; wounded, sick and shipwrecked members of armed forces at sea; prisoners of war, and civilians in time of war.

38.      Each Convention contains a provision listing the particularly serious violations that qualify as "grave breaches" or war crimes.  Persons committing or ordering grave breaches are subject to trial and punishment.  The lists of grave breaches contained in the Geneva Conventions are reproduced in the article which follows.

39.      The Security Council has reaffirmed on several occasions that persons who commit or order the commission of grave breaches of the 1949 Geneva Conventions in the territory of the former Yugoslavia are individually responsible for such breaches as serious violations of international humanitarian law.

40.      The corresponding article of the statute would read:

Article 2
Grave breaches of the Geneva Conventions of 1949

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a)  wilful killing;

(b)  torture or inhuman treatment, including biological experiments;

(c)  wilfully causing great suffering or serious injury to body or health;

(d)  extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e)  compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f)   wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g)  unlawful deportation or transfer or unlawful confinement of a civilian;

(h)  taking civilians as hostages.

Violations of the laws or customs of war

41.      The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto comprise a second important area of conventional humanitarian international law which has become part of the body of international customary law.

42.      The Nürnberg Tribunal recognized that many of the provisions contained in the Hague Regulations, although innovative at the time of their adoption were, by 1939, recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war.  The Nürnberg Tribunal also recognized that war crimes defined in article 6(b) of the Nürnberg Charter were already recognized as war crimes under international law, and covered in the Hague Regulations, for which guilty individuals were punishable.

43.      The Hague Regulations cover aspects of international humanitarian law which are also covered by the 1949 Geneva Conventions.  However, the Hague Regulations also recognize that the right of belligerents to conduct warfare is not unlimited and that resort to certain methods of waging war is prohibited under the rules of land warfare.

44.      These rules of customary law, as interpreted and applied by the Nürnberg Tribunal, provide the basis for the corresponding article of the statute which would read as follows:

Article 3
Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war.  Such violations shall include, but not be limited to:

(a)  employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b)  wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)  attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d)  seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e)  plunder of public or private property.

Genocide

45.      The 1948 Convention on the Prevention and Punishment of the Crime of Genocide confirms that genocide, whether committed in time of peace or in time of war, is a crime under international law for which individuals shall be tried and punished.  The Convention is today considered part of international customary law as evidenced by the International Court of Justice in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951. 7/

46.      The relevant provisions of the Genocide Convention are reproduced in the corresponding article of the statute, which would read as follows:

Article 4
Genocide

1.   The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

2.   Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)        killing members of the group;

(b)        causing serious bodily or mental harm to members of the group;

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

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

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

3.   The following acts shall be punishable:

(a)        genocide;

(b)        conspiracy to commit genocide;

(c)        direct and public incitement to commit genocide;

(d)        attempt to commit genocide;

(e)        complicity in genocide.

Crimes against humanity

47.      Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as in Law No. 10 of the Control Council for Germany. 8/  Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character. 9/

48.      Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.  In the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called "ethnic cleansing" and widespread and systematic rape and other forms of sexual assault, including enforced prostitution.

49.      The corresponding article of the statute would read as follows:

Article 5
Crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a)  murder;

(b)  extermination;

(c)  enslavement;

(d)  deportation;

(e)  imprisonment;

(f)   torture;

(g)  rape;

(h)  persecutions on political, racial and religious grounds;

(i)   other inhumane acts.

B.  Competence ratione personae (personal jurisdiction) and individual criminal responsibility

50.      By paragraph 1 of resolution 808 (1993), the Security Council decided that the International Tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.  In the light of the complex of resolutions leading up to resolution 808 (1993) (see paras. 5‑7 above), the ordinary meaning of the term "persons responsible for serious violations of international humanitarian law" would be natural persons to the exclusion of juridical persons.

51.      The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal.  The Secretary-General believes that this concept should not be retained in regard to the International Tribunal.  The criminal acts set out in this statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups. 

52.      The corresponding article of the statute would read:

Article 6
Personal jurisdiction

The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.

Individual criminal responsibility

53.      An important element in relation to the competence ratione personae (personal jurisdiction) of the International Tribunal is the principle of individual criminal responsibility.  As noted above, the Security Council has reaffirmed in a number of resolutions that persons committing serious violations of international humanitarian law in the former Yugoslavia are individually responsible for such violations. 

54.      The Secretary-General believes that all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible.

55.      Virtually all of the written comments received by the Secretary-General have suggested that the statute of the International Tribunal should contain provisions with regard to the individual criminal responsibility of heads of State, government officials and persons acting in an official capacity.  These suggestions draw upon the precedents following the Second World War.  The Statute should, therefore, contain provisions which specify that a plea of head of State immunity or that an act was committed in the official capacity of the accused will not constitute a defence, nor will it mitigate punishment.

56.      A person in a position of superior authority should, therefore, be held individually responsible for giving the unlawful order to commit a crime under the present statute.  But he should also be held responsible for failure to prevent a crime or to deter the unlawful behaviour of his subordinates.  This imputed responsibility or criminal negligence is engaged if the person in  superior authority knew or had reason to know that his subordinates were about to commit or had committed crimes and yet failed to take the necessary and reasonable steps to prevent or repress the commission of such crimes or to punish those who had committed them.

57.      Acting upon an order of a Government or a superior cannot relieve the perpetrator of the crime of his criminal responsibility and should not be a defence.  Obedience to superior orders may, however, be considered a mitigating factor, should the International Tribunal determine that justice so requires.  For example, the International Tribunal may consider the factor of superior orders in connection with other defences such as coercion or lack of moral choice.

58.      The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognized by all nations.

59.      The corresponding article of the statute would read:

Article 7
Individual criminal responsibility

1.   A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2.   The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3.   The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4.   The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

C.  Competence ratione loci (territorial jurisdiction) and ratione temporis (temporal jurisdiction)

60.      Pursuant to paragraph 1 of resolution 808 (1993), the territorial and temporal jurisdiction of the International Tribunal extends to serious violations of international humanitarian law to the extent that they have been "committed in the territory of the former Yugoslavia since 1991".

61.      As far as the territorial jurisdiction of the International Tribunal is concerned, the territory of the former Yugoslavia means the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters.

62.      With regard to temporal jurisdiction, Security Council resolution 808 (1993) extends the jurisdiction of the International Tribunal to violations committed "since 1991".  The Secretary-General understands this to mean anytime on or after 1 January 1991.  This is a neutral date which is not tied to any specific event and is clearly intended to convey the notion that no judgement as to the international or internal character of the conflict is being exercised.

63.      The corresponding article of the statute would read:

Article 8
Territorial and temporal jurisdiction

The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters.  The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991.

D.  Concurrent jurisdiction and the principle of non-bis-in-idem

64.      In establishing an international tribunal for the prosecution of persons responsible for serious violations committed in the territory of the former Yugoslavia since 1991, it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to such acts.  Indeed national courts should be encouraged to exercise their jurisdiction in accordance with their relevant national laws and procedures. 

65.      It follows therefore that there is concurrent jurisdiction of the International Tribunal and national courts.  This concurrent jurisdiction, however, should be subject to the primacy of the International Tribunal.  At any stage of the procedure, the International Tribunal may formally request the national courts to defer to the competence of the International Tribunal.  The details of how the primacy will be asserted shall be set out in the rules of procedure and evidence of the International Tribunal.

66.      According to the principle of non-bis-in-idem, a person shall not be tried twice for the same crime.  In the present context, given the primacy of the International Tribunal, the principle of non-bis-in-idem would preclude subsequent trial before a national court.  However, the principle of non-bis-in idem should not preclude a subsequent trial before the International Tribunal in the following two circumstances:

(a)  The characterization of the act by the national court did not correspond to its characterization under the statute; or

(b)  Conditions of impartiality, independence or effective means of adjudication were not guaranteed in the proceedings before the national courts.

67.      Should the International Tribunal decide to assume jurisdiction over a person who has already been convicted by a national court, it should take into consideration the extent to which any penalty imposed by the national court has already been served.

68.      The corresponding articles of the statute would read:

Article 9
Concurrent jurisdiction

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.

Article 10
Non-bis-in-idem

1.   No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal.

2.   A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if:

(a)        the act for which he or she was tried was characterized as an ordinary crime; or

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

3.   In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.

III.  THE ORGANIZATION OF THE INTERNATIONAL TRIBUNAL

69.      The organization of the International Tribunal should reflect the functions to be performed by it.  Since the International Tribunal is established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, this presupposes an international tribunal composed of a judicial organ, a prosecutorial organ and a secretariat.  It would be the function of the prosecutorial organ to investigate cases, prepare indictments and prosecute persons responsible for committing the violations referred to above.  The judicial organ would hear the cases presented to its Trial Chambers, and consider appeals from the Trial Chambers in its Appeals Chamber.  A secretariat or Registry would be required to service both the prosecutorial and judicial organs.

70.      The International Tribunal should therefore consist of the following organs:  the Chambers, comprising two Trial Chambers and one Appeals Chamber; a Prosecutor; and a Registry.

71.      The corresponding article of the statute would read as follows:

Article 11
Organization of the International Tribunal

The International Tribunal shall consist of the following organs:

(a)  The Chambers, comprising two Trial Chambers and an Appeals Chamber;

(b)  The Prosecutor; and

(c)  A Registry, servicing both the Chambers and the Prosecutor.

A.  The Chambers

1.  Composition of the Chambers

72.      The Chambers should be composed of 11 independent judges, no 2 of whom may be nationals of the same State.  Three judges would serve in each of the two Trial Chambers and five judges would serve in the Appeals Chamber. 

73.      The corresponding article of the statute would read as follows:

Article 12
Composition of the Chambers

The Chambers shall be composed of eleven independent judges, no two of whom may be nationals of the same State, who shall serve as follows:

(a)  Three judges shall serve in each of the Trial Chambers;

(b)  Five judges shall serve in the Appeals Chamber.

2.  Qualifications and election of judges

74.      The judges of the International Tribunal should be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.  Impartiality in this context includes impartiality with respect to the acts falling within the competence of the International Tribunal.  In the overall composition of the Chambers, due account should be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.

75.      The judges should be elected by the General Assembly from a list submitted by the Security Council.  The Secretary-General would invite nominations for judges from States Members of the United Nations as well as non-member States maintaining permanent observer missions at United Nations Headquarters.  Within 60 days of the date of the invitation of the Secretary-General, each State would nominate up to two candidates meeting the qualifications mentioned in paragraph 74 above, who must not be of the same nationality.  The Secretary-General would forward the nominations received to the Security Council.  The Security Council would, as speedily as possible, establish from the nominations transmitted by the Secretary-General, a list of not less than 22 and not more than 33 candidates, taking due account of the adequate representation of the principal legal systems of the world.  The President of the Security Council would then transmit the list to the General Assembly.  From that list, the General Assembly would proceed as speedily as possible to elect the 11 judges of the International Tribunal.  The candidates declared elected shall be those who have received an absolute majority of the votes of the States Members of the United Nations and of the States maintaining permanent observer missions at United Nations Headquarters.  Should two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected. 

76.      The judges shall be elected for a term of four years.  The terms and conditions of service shall be those of the Judges of the International Court of Justice.  They shall be eligible for re-election.

77.      In the event of a vacancy occurring in the Chambers, the Secretary-General, after consultation with the Presidents of the Security Council and the General Assembly, would appoint a person meeting the qualifications of paragraph 74 above, for the remainder of the term of office concerned.

78.      The corresponding article of the statute would read as follows:

Article 13
Qualifications and election of judges

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

2.   The judges of the International Tribunal shall be elected by the General Assembly from a list submitted by the Security Council, in the following manner:

                        (a)        The Secretary-General shall invite nominations for judges of the International Tribunal from States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters;

(b)        Within sixty days of the date of the invitation of the Secretary-General, each State may nominate up to two candidates meeting the qualifications set out in paragraph 1 above, no two of whom shall be of the same nationality;

(c)        The Secretary-General shall forward the nominations received to the Security Council.  From the nominations received the Security Council shall establish a list of not less than twenty‑two and not more than thirty‑three candidates, taking due account of the adequate representation of the principal legal systems of the world;

(d)        The President of the Security Council shall transmit the list of candidates to the President of the General Assembly.  From that list the General Assembly shall elect the eleven judges of the International Tribunal.  The candidates who receive an absolute majority of the votes of States Members of the United Nations and of the non-member States maintaining permanent observer missions at United Nations Headquarters, shall be declared elected.  Should two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected.

3.   In the event of a vacancy in the Chambers, after consultation with the Presidents of the Security Council and of the General Assembly, the Secretary-General shall appoint a person meeting the qualifications of paragraph 1 above, for the remainder of the term of office concerned.

4.   The judges shall be elected for a term of four years.  The terms and conditions of service shall be those of the Judges of the International Court of justice.  They shall be eligible for re-election.

3.  Officers and members of the Chambers

79.      The judges would elect a President of the International Tribunal from among their members who would be a member of the Appeals Chamber and would preside over the appellate proceedings.

80.      Following consultation with the members of the Chambers, the President would assign the judges to the Appeals Chamber and to the Trial Chambers.  Each judge would serve only in the chamber to which he or she was assigned. 

81.      The members of each Trial Chamber should elect a presiding judge who would conduct all of the proceedings before the Trial Chamber as a whole.

82.      The corresponding article of the statute would read as follows:

Article 14
Officers and members of the Chambers

1.   The judges of the International Tribunal shall elect a President.

2.   The President of the International Tribunal shall be a member of the Appeals Chamber and shall preside over its proceedings.

3.   After consultation with the judges of the International Tribunal, the President shall assign the judges to the Appeals Chamber and to the Trial Chambers.  A judge shall serve only in the Chamber to which he or she was assigned.

4.   The judges of each Trial Chamber shall elect a Presiding Judge, who shall conduct all of the proceedings of the Trial Chamber as a whole. 

4.  Rules of procedure and evidence

83.      The judges of the International Tribunal as a whole should draft and adopt the rules of procedure and evidence of the International Tribunal governing the pre-trial phase of the proceedings, the conduct of trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.  

84.      The corresponding article of the statute would read as follows:

Article 15
Rules of procedure and evidence

The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.

B.  The Prosecutor

85.      Responsibility for the conduct of all investigations and prosecutions of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991 should be entrusted to an independent Prosecutor.  The Prosecutor should act independently as a separate organ of the International Tribunal.  He or she shall not seek or receive instructions from any Government or from any other source.

86.      The Prosecutor should be appointed by the Security Council, upon nomination by the Secretary-General.  He or she should possess the highest level of professional competence and have extensive experience in the conduct of investigations and prosecutions of criminal cases.  The Prosecutor should be appointed for a four-year term of office and be eligible for reappointment.  The terms and conditions of service of the Prosecutor shall be those of an Under‑Secretary-General of the United Nations.

87.      The Prosecutor would be assisted by such other staff as may be required to perform effectively and efficiently the functions entrusted to him or her.  Such staff would be appointed by the Secretary-General on the recommendation of the Prosecutor.  The Office of the Prosecutor should be composed of an investigation unit and a prosecution unit.

88.      Staff appointed to the Office of the Prosecutor should meet rigorous criteria of professional experience and competence in their field.  Persons should be sought who have had relevant experience in their own countries as investigators, prosecutors, criminal lawyers, law enforcement personnel or medical experts.  Given the nature of the crimes committed and the sensitivities of victims of rape and sexual assault, due consideration should be given in the appointment of staff to the employment of qualified women.

89.      The corresponding article of the statute would read as follows:

Article 16
The Prosecutor

1.   The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

2.   The Prosecutor shall act independently as a separate organ of the International Tribunal.  He or she shall not seek or receive instructions from any Government or from any other source.

3.   The Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required.

4.   The Prosecutor shall be appointed by the Security Council on nomination by the Secretary-General.  He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases.  The Prosecutor shall serve for a four-year term and be eligible for reappointment.  The terms and conditions of service of the Prosecutor shall be those of an Under-Secretary-General of the United Nations.

5.   The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor.

C.  The Registry

90.      As indicated in paragraph 69 above, a Registry would be responsible for the servicing of the International Tribunal.  The Registry would be headed by a Registrar, whose responsibilities shall include but should not be limited to the following:

(a)  Public information and external relations;

(b)  Preparation of minutes of meetings;

(c)  Conference-service facilities;

(d)  Printing and publication of all documents;

(e)  All administrative work, budgetary and personnel matters; and

(f)   Serving as the channel of communications to and from the International Tribunal.

91.      The Registrar should be appointed by the Secretary-General after consultation with the President of the International Tribunal.  He or she would be appointed to serve for a four-year term and be eligible for reappointment.  The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations.

92.      The corresponding article of the statute would read as follows:

Article 17
The Registry

1.   The Registry shall be responsible for the administration and servicing of the International Tribunal.

2.   The Registry shall consist of a Registrar and such other staff as may be required.

3.   The Registrar shall be appointed by the Secretary-General after consultation with the President of the International Tribunal.  He or she shall serve for a four-year term and be eligible for reappointment.  The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations.

4.   The staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar. 

IV.  INVESTIGATION AND PRE-TRIAL PROCEEDINGS

93.      The Prosecutor would initiate investigations ex officio, or on the basis of information obtained from any source, particularly from Governments or United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor would assess the information received or obtained and decide whether there is a sufficient basis to proceed.

94.      In conducting his investigations, the Prosecutor should have the power to question suspects, victims and witnesses, to collect evidence and to conduct on‑site investigations.  In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.

95.      Upon the completion of the investigation, if the Prosecutor has determined that a prima facie case exists for prosecution, he would prepare an indictment containing a concise statement of the facts and the crimes with which the accused is charged under the statute.  The indictment would be transmitted to a judge of a Trial Chamber, who would review it and decide whether to confirm or to dismiss the indictment.

96.      If the investigation includes questioning of the suspect, then he should have the right to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it.  He shall also be entitled to the necessary translation into and from a language he speaks and understands.

97.      Upon confirmation of the indictment, the judge would, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender and transfer of persons, or any other orders as may be necessary for the conduct of the trial.

98.      The corresponding articles of the statute would read as follows:

Article 18
Investigation and preparation of indictment

1.   The Prosecutor shall initiate investigations ex officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

2.   The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations.  In carrying out these tasks the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.

3.   If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands.

4.   Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.  The indictment shall be transmitted to a judge of the Trial Chamber.

Article 19
Review of the indictment

1.   The judge of the Trial Chamber to whom the indictment has been transmitted shall review it.  If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment.  If not so satisfied, the indictment shall be dismissed.

2.   Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.

V.  TRIAL AND POST-TRIAL PROCEEDINGS

A.  Commencement and conduct of trial proceedings

99.      The Trial Chambers should ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence and with full respect for the rights of the accused.  The Trial Chamber should also provide appropriate protection for victims and witnesses during the proceedings.

100.    A person against whom an indictment has been confirmed would, pursuant to an order or a warrant of the International Tribunal, be informed of the contents of the indictment and taken into custody.

101.    A trial should not commence until the accused is physically present before the International Tribunal.  There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, 10/ which provides that the accused shall be entitled to be tried in his presence.

102.    The person against whom an indictment has been confirmed would be transferred to the seat of the International Tribunal and brought before a Trial Chamber without undue delay and formally charged.  The Trial Chamber would read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea.  After the plea has been entered, the Trial Chamber would set the date for trial.

103.    The hearings should be held in public unless the Trial Chamber decides otherwise in accordance with its rules of procedure and evidence.

104.    After hearing the submissions of the parties and examining the witnesses and evidence presented to it, the Trial Chamber would close the hearing and retire for private deliberations.

105.    The corresponding article of the statute would read:

Article 20
Commencement and conduct of trial proceedings

1.   The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

2.   A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.

3.   The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea.  The Trial Chamber shall then set the date for trial.

4.   The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.

B.  Rights of the accused

106.    It is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings.  In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights. 10/

107.    The corresponding article of the statute would read as follows:

Article 21
Rights of the accused

1.   All persons shall be equal before the International Tribunal.

2.   In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.

3.   The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

4.   In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a)        to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b)        to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c)        to be tried without undue delay;

(d)        to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e)        to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f)         to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;

(g)        not to be compelled to testify against himself or to confess guilt.

C.  Protection of victims and witnesses

108.    In the light of the particular nature of the crimes committed in the former Yugoslavia, it will be necessary for the International Tribunal to ensure the protection of victims and witnesses.  Necessary protection measures should therefore be provided in the rules of procedure and evidence for victims and witnesses, especially in cases of rape or sexual assault.  Such measures should include, but should not be limited to the conduct of in camera proceedings, and the protection of the victim's identity.

109.    The corresponding article of the statute would read as follows:

Article 22

Protection of victims and witnesses

The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses.  Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity.

D.  Judgement and penalties

110.    The Trial Chambers would have the power to pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.  A judgement would be rendered by a majority of the judges of the Chamber and delivered in public.  It should be written and accompanied by a reasoned opinion.  Separate or dissenting opinions should be permitted.

111.    The penalty to be imposed on a convicted person would be limited to imprisonment.  In determining the term of imprisonment, the Trial Chambers should have recourse to the general practice of prison sentences applicable in the courts of the former Yugoslavia.

112.    The International Tribunal should not be empowered to impose the death penalty.

113.    In imposing sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

114.    In addition to imprisonment, property and proceeds acquired by criminal conduct should be confiscated and returned to their rightful owners.  This would include the return of property wrongfully acquired by means of duress.  In this connection the Secretary-General recalls that in resolution 779 (1992) of 6 October 1992, the Security Council endorsed the principle that all statements or commitments made under duress, particularly those relating to land and property, are wholly null and void.

115.    The corresponding articles of the statute would read as follows:

Article 23
Judgement

1.   The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.

2.   The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public.  It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.

Article 24
Penalties

1.   The penalty imposed by the Trial Chamber shall be limited to imprisonment.  In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

2.   In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3.   In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

E.  Appellate and review proceedings

116.    The Secretary-General is of the view that the right of appeal should be provided for under the Statute.  Such a right is a fundamental element of individual civil and political rights and has, inter alia, been incorporated in the International Covenant on Civil and Political Rights.  For this reason, the Secretary-General has proposed that there should be an Appeals Chamber.

117.    The right of appeal should be exercisable on two grounds:  an error on a question of law invalidating the decision or, an error of fact which has occasioned a miscarriage of justice.  The Prosecutor should also be entitled to initiate appeal proceedings on the same grounds.

118.    The judgement of the Appeals Chamber affirming, reversing or revising the judgement of the Trial Chamber would be final.  It would be delivered by the Appeals Chamber in public and be accompanied by a reasoned opinion to which separate or dissenting opinions may be appended.

119.    Where a new fact has come to light which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber, and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor should be authorized to submit to the International Tribunal an application for review of the judgement.

120.    The corresponding articles of the statute would read as follows:

Article 25
Appellate proceedings

1.   The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

(a)        an error on a question of law invalidating the decision; or

(b)        an error of fact which has occasioned a miscarriage of justice.

2.   The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

Article 26
Review proceedings

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

F.  Enforcement of sentences

121.    The Secretary-General is of the view that, given the nature of the crimes in question and the international character of the tribunal, the enforcement of sentences should take place outside the territory of the former Yugoslavia.  States should be encouraged to declare their readiness to carry out the enforcement of prison sentences in accordance with their domestic laws and procedures, under the supervision of the International Tribunal.

122.    The Security Council would make appropriate arrangements to obtain from States an indication of their willingness to accept convicted persons.  This information would be communicated to the Registrar, who would prepare a list of States in which the enforcement of sentences would be carried out.

123.    The accused would be eligible for pardon or commutation of sentence in accordance with the laws of the State in which sentence is served.  In such an event, the State concerned would notify the International Tribunal, which would decide the matter in accordance with the interests of justice and the general principles of law.

124.    The corresponding article of the statute would read as follows:

Article 27
Enforcement of sentences

Imprisonment shall be served in a State designated by the International Tribunal from a list of States which have indicated to the Security Council their willingness to accept convicted persons.  Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal.

Article 28
Pardon or commutation of sentences

If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly.  The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.

VI.  COOPERATION AND JUDICIAL ASSISTANCE

125.    As pointed out in paragraph 23 above, the establishment of the International Tribunal on the basis of a Chapter VII decision creates a binding obligation on all States to take whatever steps are required to implement the decision.  In practical terms, this means that all States would be under an obligation to cooperate with the International Tribunal and to assist it in all stages of the proceedings to ensure compliance with requests for assistance in the gathering of evidence, hearing of witnesses, suspects and experts, identification and location of persons and the service of documents.  Effect shall also be given to orders issued by the Trial Chambers, such as warrants of arrest, search warrants, warrants for surrender or transfer of persons, and any other orders necessary for the conduct of the trial.

126.    In this connection, an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations.

127.    The corresponding article of the statute would read as follows:

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.

VII.  GENERAL PROVISIONS

A.  The status, privileges and immunities of the International Tribunal

128.    The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 would apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff.  The judges, the Prosecutor, and the Registrar would be granted the privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law.  The staff of the Prosecutor and the Registrar would enjoy the privileges and immunities of officials of the United Nations within the meaning of articles V and VII of the Convention.

129.    Other persons, including the accused, required at the seat of the International Tribunal would be accorded such treatment as is necessary for the proper functioning of the International Tribunal.

130.    The corresponding article of the statute would read:

Article 30
The status, privileges and immunities of the International Tribunal

1.   The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff.

2.   The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

3.   The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article.

4.   Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal.

B.  Seat of the International Tribunal

131.    While it will be for the Security Council to determine the location of the seat of the International Tribunal, in the view of the Secretary-General, there are a number of elementary considerations of justice and fairness, as well as administrative efficiency and economy which should be taken into account.  As a matter of justice and fairness, it would not be appropriate for the International Tribunal to have its seat in the territory of the former Yugoslavia or in any State neighbouring upon the former Yugoslavia.  For reasons of administrative efficiency and economy, it would be desirable to establish the seat of the International Tribunal at a European location in which the United Nations already has an important presence.  The two locations which fulfil these requirements are Geneva and The Hague.  Provided that the necessary arrangements can be made with the host country, the Secretary-General believes that the seat of the International Tribunal should be at The Hague.

132.    The corresponding article of the statute would read:

Article 31
Seat of the International Tribunal

The International Tribunal shall have its seat at The Hague.

C.  Financial arrangements

133.    The expenses of the International Tribunal should be borne by the regular budget of the United Nations in accordance with Article 17 of the Charter of the United Nations.

134.    The corresponding article of the statute would read:

Article 32
Expenses of the International Tribunal

The expenses of the International Tribunal shall be borne by the regular budget of the United Nations in accordance with Article 17 of the Charter of the United Nations.

D.  Working languages

135.    The working languages of the Tribunal should be English and French.

136.    The corresponding article of the statute would read as follows:

Article 33
Working languages

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

E.  Annual report

137.    The International Tribunal should submit an annual report on its activities to the Security Council and the General Assembly.

138.    The corresponding article of the statute would read:

Article 34
Annual report

The President of the International Tribunal shall submit an annual report of the International Tribunal to the Security Council and to the General Assembly.

Notes

1/       On 19 April 1993, the Secretary-General addressed a letter to the President of the Security Council informing him that the report would be made available to the Security Council no later than 6 May 1993.

2/       The 1953 Committee on International Criminal Jurisdiction was established by General Assembly resolution 687 (VII) of 5 December 1952.

3/       Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, Convention relative to the Treatment of Prisoners of War of 12 August 1949, Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (United Nations, Treaty Series, vol. 75, No. 970‑973).

4/       Carnegie Endowment for International Peace, The Hague Conventions and Declarations of 1899 and 1907 (New York, Oxford University Press, 1915), p. 100.

5/       United Nations, Treaty Series, vol. 78, No. 1021.

6/       The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed at London on 8 August 1945 (United Nations, Treaty Series, vol. 82, No. 251); see also Judgement of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis (United States Government Printing Office, Nazi Conspiracy and Aggression, Opinion and Judgement) and General Assembly resolution 95 (I) of 11 December 1946 on the Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal.

7/       Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:  Advisory Opinion of 28 May 1951, International Court of Justice Reports, 1951, p. 23.

8/       Official Gazette of the Control Council for Germany, No. 3, p. 22, Military Government Gazette, Germany, British Zone of Control, No. 5, p. 46, Journal Officiel du Commandement en Chef Francais en Allemagne, No. 12 of 11 January 1946.

9/       In this context, it is to be noted that the International Court of Justice has recognized that the prohibitions contained in common article 3 of the 1949 Geneva Conventions are based on "elementary considerations of humanity" and cannot be breached in an armed conflict, regardless of whether it is international or internal in character.  Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement of 27 June 1986:  I.C.J. Reports 1986, p. 114.

10/      United Nations, Treaty Series, vol. 999, No. 14668, p. 171 and vol. 1057, p. 407 (proces-verbal of rectification of authentic Spanish text).

Annex
Statute of the International Tribunal

Having been established by the Security Council acting under Chapter VII of the Charter of the United Nations, 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 (hereinafter referred to as "the International Tribunal") shall function in accordance with the provisions of the present Statute.

Article 1
Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.

Article 2
Grave breaches of the Geneva Conventions of 1949

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a)  wilful killing;

(b)  torture or inhuman treatment, including biological experiments;

(c)  wilfully causing great suffering or serious injury to body or health;

(d)  extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e)  compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f)   wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g)  unlawful deportation or transfer or unlawful confinement of a civilian;

(h)  taking civilians as hostages.

Article 3
Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war.  Such violations shall include, but not be limited to:

(a)  employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b)  wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)  attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d)  seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e)  plunder of public or private property.

Article 4
Genocide

1.       The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

2.       Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)  killing members of the group;

(b)  causing serious bodily or mental harm to members of the group;

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

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

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

3.       The following acts shall be punishable:

(a)  genocide;

(b)  conspiracy to commit genocide;

(c)  direct and public incitement to commit genocide;

(d)  attempt to commit genocide;

(e)  complicity in genocide.

Article 5
Crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a)  murder;

(b)  extermination;

(c)  enslavement;

(d)  deportation;

(e)  imprisonment;

(f)   torture;

(g)  rape;

(h)  persecutions on political, racial and religious grounds;

(i)   other inhumane acts.

Article 6
Personal jurisdiction

The International Tribunal shall have jurisdiction over natural persons pursuant to the provisions of the present Statute.

Article 7
Individual criminal responsibility

1.       A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2.       The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3.       The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4.       The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Article 8
Territorial and temporal jurisdiction

The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and  territorial waters.  The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991.

Article 9
Concurrent jurisdiction

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.

Article 10
Non-bis-in-idem

1.       No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal.

2.       A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if:

(a)  the act for which he or she was tried was characterized as an ordinary crime; or

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

3.       In considering the penalty to be imposed on a person convicted of a crime under the present Statute, the International Tribunal shall take into account the extent to which any penalty imposed by a national court on the same person for the same act has already been served.

Article 11
Organization of the International Tribunal

The International Tribunal shall consist of the following organs:

(a)  The Chambers, comprising two Trial Chambers and an Appeals Chamber;

(b)  The Prosecutor, and

(c)  A Registry, servicing both the Chambers and the Prosecutor.

Article 12
Composition of the Chambers

The Chambers shall be composed of eleven independent judges, no two of whom may be nationals of the same State, who shall serve as follows:

(a)  Three judges shall serve in each of the Trial Chambers;

(b)  Five judges shall serve in the Appeals Chamber.

Article 13
Qualifications and election of judges

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

2.       The judges of the International Tribunal shall be elected by the General Assembly from a list submitted by the Security Council, in the following manner:

(a)  The Secretary-General shall invite nominations for judges of the International Tribunal from States Members of the United Nations and non-member States maintaining permanent observer missions at United Nations Headquarters;

(b)  Within sixty days of the date of the invitation of the Secretary-General, each State may nominate up to two candidates meeting the qualifications set out in paragraph 1 above, no two of whom shall be of the same nationality;

(c)  The Secretary-General shall forward the nominations received to the Security Council.  From the nominations received the Security Council shall establish a list of not less than twenty-two and not more than thirty-three candidates, taking due account of the adequate representation of the principal legal systems of the world;

(d)  The President of the Security Council shall transmit the list of candidates to the President of the General Assembly.  From that list the General Assembly shall elect the eleven judges of the International Tribunal.  The candidates who receive an absolute majority of the votes of the States Members of the United Nations and of the non-Member States maintaining permanent observer missions at United Nations Headquarters, shall be declared elected.  Should two candidates of the same nationality obtain the required majority vote, the one who received the higher number of votes shall be considered elected.

3.       In the event of a vacancy in the Chambers, after consultation with the Presidents of the Security Council and of the General Assembly, the Secretary-General shall appoint a person meeting the qualifications of paragraph 1 above, for the remainder of the term of office concerned.

4.       The judges shall be elected for a term of four years.  The terms and conditions of service shall be those of the judges of the International Court of Justice.  They shall be eligible for re-election.

Article 14
Officers and members of the Chambers

1.       The judges of the International Tribunal shall elect a President.

2.       The President of the International Tribunal shall be a member of the Appeals Chamber and shall preside over its proceedings.

3.       After consultation with the judges of the International Tribunal, the President shall assign the judges to the Appeals Chamber and to the Trial Chambers.  A judge shall serve only in the Chamber to which he or she was assigned.

4.       The judges of each Trial Chamber shall elect a Presiding Judge, who shall conduct all of the proceedings of the Trial Chamber as a whole.

Article 15
Rules of procedure and evidence

The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.

Article 16
The Prosecutor

1.       The Prosecutor shall be responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

2.       The Prosecutor shall act independently as a separate organ of the International Tribunal.  He or she shall not seek or receive instructions from any Government or from any other source.

3.       The Office of the Prosecutor shall be composed of a Prosecutor and such other qualified staff as may be required.

4.       The Prosecutor shall be appointed by the Security Council on nomination by the Secretary-General.  He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases.  The Prosecutor shall serve for a four-year term and be eligible for reappointment.  The terms and conditions of service of the Prosecutor shall be those of an Under-Secretary-General of the United Nations.

5.       The staff of the Office of the Prosecutor shall be appointed by the Secretary-General on the recommendation of the Prosecutor.

Article 17
The Registry

1.       The Registry shall be responsible for the administration and servicing of the International Tribunal.

2.       The Registry shall consist of a Registrar and such other staff as may be required.

3.       The Registrar shall be appointed by the Secretary-General after consultation with the President of the International Tribunal.  He or she shall serve for a four-year term and be eligible for reappointment.  The terms and conditions of service of the Registrar shall be those of an Assistant Secretary-General of the United Nations.

4.       The staff of the Registry shall be appointed by the Secretary-General on the recommendation of the Registrar.           

Article 18
Investigation and preparation of indictment

1.       The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

2.       The Prosecutor shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations.  In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.

3.       If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands.

4.       Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute.  The indictment shall be transmitted to a judge of the Trial Chamber.

Article 19
Review of the indictment

1.       The judge of the Trial Chamber to whom the indictment has been transmitted shall review it.  If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment.  If not so satisfied, the indictment shall be dismissed.                   

2.       Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.

Article 20
Commencement and conduct of trial proceedings

1.       The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

2.       A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.

3.       The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea.  The Trial Chamber shall then set the date for trial.

4.       The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.

Article 21
Rights of the accused

1.       All persons shall be equal before the International Tribunal.

2.       In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.

3.       The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.

4.       In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a)  to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b)  to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c)  to be tried without undue delay;

(d)  to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e)  to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f)   to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;

(g)  not to be compelled to testify against himself or to confess guilt.

Article 22
Protection of victims and witnesses

The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses.  Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity.

Article 23
Judgement

1.       The Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.

2.       The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public.  It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended.

Article 24
Penalties

1.       The penalty imposed by the Trial Chamber shall be limited to imprisonment.  In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

2.       In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3.       In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.

Article 25
Appellate proceedings

1.       The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

(a)  an error on a question of law invalidating the decision; or

(b)  an error of fact which has occasioned a miscarriage of justice.

2.       The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

Article 26
Review proceedings

          Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Article 27
Enforcement of sentences

Imprisonment shall be served in a State designated by the International Tribunal from a list of States which have indicated to the Security Council their willingness to accept convicted persons.  Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal.

Article 28
Pardon or commutation of sentences

If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly.  The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.

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.

Article 30
The status, privileges and immunities of the International Tribunal

1.       The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff.   

2.       The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

3.       The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article.

4.       Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal.

Article 31
Seat of the International Tribunal

The International Tribunal shall have its seat at The Hague.

Article 32
Expenses of the International Tribunal

The expenses of the International Tribunal shall be borne by the regular budget of the United Nations in accordance with Article 17 of the Charter of the United Nations.

Article 33
Working languages

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

Article 34
Annual report

The President of the International Tribunal shall submit an annual report of the International Tribunal to the Security Council and to the General Assembly.

* On behalf of the members of the Organization of the Islamic Conference (OIC) and as members of the Contact Group of OIC on Bosnia and Herzegovina.