Since the end of World War II, the United Nations had not addressed issues of international criminal justice. This was due in large part to the Cold War, which lasted between 1948 and 1989. During that time, the UN continued to undertake a number of projects, such as the now failed effort of codifying international crimes and criminalizing the crime of aggression. But, while governments and experts ascribed the failure to achieve these goals to the Cold War, it was more likely a reflection of Realpolitik, which was not ready to acquiesce to international criminal justice. It was one thing to have international and national processes flowing out of WWII when it was by the victorious allies against the defeated. But, it was quite another thing for all states and, in particular, the major powers, to accept subjecting themselves to an independent, impartial, and fair international criminal justice system. This is why, for example, the US was not held responsible for the nuclear bombings of the two Japanese cities of Hiroshima and Nagasaki, where 200,000 civilians died. This was clearly a war crime. The same applies to the Anglo-American bombing of the city of Dresden in Germany, where an estimated 50,000 civilians were killed for no other reason than retaliation over Germany’s earlier bombing of London and Coventry. Regrettably, this is a recurring historic pattern: to the victors belong the spoils, but also the justice, while to the defeated, there is only the option of submission, and rarely of any justice.
The conflict in Yugoslavia, however, brought about a moral crisis among Europeans and, to some extent, the US when the abhorrent practices of ethnic cleansing and systematic rape started becoming publicly known. More importantly, these atrocities were occurring in the heart of Europe and not in some distant African country whose practices could be ignored by the West. At the time of his presidential campaign, candidate Bill Clinton urged a military intervention in the former Yugoslavia, but the US military and NATO were not favourable to it. After his election, President Clinton was faced with his campaign promises, which could not be realized. His then-Ambassador to the UN and later Secretary of State, Madeline Albright, thought of establishing a commission of inquiry similar to the UN War Crimes Commission that was established in the aftermath of WWII. After much debate in the Security Council, Ambassador Albright, with the support of the UK, was able to fashion a Security Council Resolution establishing a commission of experts. See SC Res. 780 (1992).
This was the first time since the end of the WWII prosecutions that such an international commission was established. But the opposition of Russia, which was strongly supportive of Serbia, remained. More importantly, the UK and other members of the Security Council were concerned that such a commission would affect the efforts of both the EU, represented by Lord David Owen, and the UN, represented by former Secretary of State, Cyrus Vance, who were mandated to achieve a cessation of hostilities. This was the first time that the conflict between the pursuit of a political settlement and the pursuit of justice was so clearly faced by the UN. Its response took the form of a subtle bureaucratic action in which the Commission was hampered in its work by not having personnel and resources. In fact, the Commission had zero budget to conduct its investigations.
The UN Secretary-General selected the members of the Commission after extensive consultation with Security Council members. The Commission members were Frits Kalshoven (Netherlands) as Chairman, M. Cherif Bassiouni (Egypt), William J. Fenrick (Canada), Keba M’baye (Senegal), and Torkel Opsahl (Norway). The Secretary-General wanted to appoint Professor Bassiouni as Chairman, and the latter was so notified by the UN Legal Counsel. But, Russia and the UK exerted pressure against his appointment as Chairman, based on their speculations that because Professor Bassiouni was a Muslim, he would likely be biased in favour of the Bosnian Muslim victims. The Secretary-General who personally knew Professor Bassiouni was convinced that this would not be the case, but he acceded to pressure and appointed Frits Kalshoven (from 26 October 1992 to 19 October 1993) who remained Chairman until he resigned for health reasons. During this time, Professor Bassiouni was appointed Rapporteur on the Gathering and Analysis of Facts, which was the primary function of the Commission. On 19 October 1993, the Secretary-General appointed Professor Bassiouni Chairman.
During that entire period of time, the Commission struggled with the UN Office of Legal Counsel, particularly its second-in-command, Mr. Ralph Zacklin, from the UK, who made it difficult for the Commission to carry out its mission by using bureaucratic tactics. The Commission, through Professor Bassiouni, had to raise its own funds, which it obtained from the Open Society Institute and the MacArthur Foundation, as well as from contributions by governments. More importantly, it obtained contributed personnel from various governments (e.g., the Netherlands, Norway, and Canada). Had it not been for these governments, private and governmental financial contributions, and volunteers, the Commission would have never accomplished its mandate. Because of these contributions, the Commission was able to conduct 32 field missions and document the policy and practice of ethnic cleansing and systematic rape. This was the first investigation in history that focused on rape as an instrument of war.
The Commission’s work was also aided by the support it received from DePaul University’s College of Law International Human Rights Law Institute (IHRLI), which housed its database. The University provided the hosting space free of charge, and the Institute (IHRLI) recruited young lawyers and law students to work on database entry and analyses of the information entered. There were four computers operated by 12 young lawyers and law student volunteers, under the supervision of young lawyers who not only supervised data entry, but also correlated the information and prepared weekly reports on the different categories of violations committed by the six warring factions and 86 paramilitary organizations identified in early 1993. The work of the database was constant (24/7), and the information, analyses, and reports were regularly updated. All of this work was submitted to the commissioners for their periodic review. In a letter by the UN Secretary General, IHRLI’s efforts and contributions were acknowledged.
The 32 field missions varied in the number of persons involved in each, ranging from a minimum of 8 persons up to over 80. The purpose for having such missions was to be able to recruit contributed personnel from governments who would be on missions for relatively short periods of time. For the rape investigations, there were 33 women, 22 of whom were volunteers. They composed 11 teams of three each led by a woman with prosecutorial experience, a psychiatrist or psychologist, and an interpreter to minimize the psychological harm and possible re-traumatization of the victims interviewed. The teams received extensive briefings on how to conduct such investigations. In total, 223 rape victims were interviewed, 575 affidavits were obtained from other rape victims, and information about an estimated 4,200 plus cases was gathered. This was, so far, the biggest rape investigation in history. Unfortunately, it only gave rise to a single case prosecuted by the ICTY. But, it set in motion a worldwide reaction that made the human community more cognizant of this horrible war crime and the need to prevent its occurrence. Unfortunately, this did not prove to be the case during the Rwanda, Sierra Leone, Darfur, or DRC conflicts, which occurred between 1994 and 2013. This and other heinous crimes of war and human atrocities continue, and one can only recall the words of Joan Baez, in her famous song, “when will they ever learn?”
The Commission also conducted an extraordinary investigation into mass graves, identifying 151 such graves, the most heinous being located near the city of Vukovar where it was believed that 214 persons were killed at close range in an abandoned agricultural co-op called Ovčara. These were all people taken from the Vukovar hospital on 20–21 November 1991, including the injured, sick, and staff, by Serb militia to be executed in the most brutal manner under the eyes of Serb army officers and literally under the nose of UN officials. This incident became known as the Vukovar massacre. The Commission was first to discover the mass grave and began exhumation and forensic analysis until it was fired on by the infamous Serb militia known as the Tigers of Arkan. Later, the information obtained by the Commission became the basis of the ICTY’s investigation, which used some of the Commission’s forensic experts. The work in Ovčara, as well as in other mass graves, was carried out thanks to the support of the Netherlands, which provided 65 military persons from the Corp of Engineer to undertake the mass grave exhumation. The Netherlands also contributed funds to the rape investigation after overcoming many difficulties created by Mr. Zacklin of the UN Office of Legal Council, who had once again sought to subtly obstruct the work of the Commission.
The Commission’s Report is the longest in the history of the Security Council, totalling 3,500 pages with over 76,000 attached documents, hundreds of hours of video, and thousands of pictures, all of which were turned over to the first prosecutor of the ICTY. The report and annexes can be found below.
The Commission was terminated by bureaucratic fiat. The Security Council never took a decision to terminate the Commission; the Office of Legal Council decided on its own, but likely at the direction of the major powers in the Council. It was because of the Commission’s work and the overwhelming evidentiary record it produced that the Security Council established the ICTY, referring to the Commission’s work in the Preamble of the SC Res. 827
As of 24 July 2013, the ICTY has indicted 161 individuals. There are no fugitives. Of these, 69 were convicted, 18 acquitted, and 13 referred to a national jurisdiction. The prosecutor withdrew 20 indictments and 16 accused died before being transferred to the ICTY or died prior to the conclusion of their trials. There are 25 ongoing proceedings: four accused are currently at trial and 21 indictees are before the Appeals Chamber.
The tribunal is considered to have achieved a high standard of judicial excellence and fairness. Its functions are estimated to end in 2014. There is no doubt that the ICTY has contributed significantly to international criminal justice. Whether it has contributed to reconciliation among the warring factions in the former Yugoslavia is yet to be seen, as succeeding generations to those who were involved in the conflict may have a different judgment on the tribunal than those that lived through the conflict.
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)