Giandonato Caggiano

Director of SIOI

ABSTRACT: The article analyses the situation of the proposal of creating a Tribunal for the crimes committed in the former Yugoslavia, which is being discussed at the UN General Assembly. The Tribunal "has trouble starting off". The problem has been tackled by the International Law Commission, which must yet decide whether to make it "a judicial body of the United Nations" or "a conventionally-based institution", whereas the question of "whether or not to include a clause of mandatory extradition" remains "unsolved".

(1994 - IL QUOTIDIANO RADICALE, 3 November 1993)

A permanent jurisdiction on war crimes

The United Nations General Assembly is discussing the creation of the International Penal Tribunal which, in the aftermath of the international mobilization caused by the crimes committed in the former Yugoslavia, is to create a first body of international justice against persons who commit cruel and intolerable crimes. Many believe that this will help make visible the existence of a new international community, which, while still incapable of a common action in international crises (as would be desirable in the current international crises), can at least prove to have a common conception of human dignity, without connivances or complicities with the authors of the gravest crimes and with absolute neutrality regarding the region and front in which they acted.

The Nuremberg international tribunal was devised by the victorious powers: the tribunal for war crimes in the former Yugoslavia has trouble getting started as the "single accomplishment" of international justice, but we cannot conceive a sustainable development for future generations in a world without justice. Thus, after many years of discussions on the drafting of a sophisticated code of crimes against peace and the security of humanity (the project of an international penal code), the general Assembly in 1991 had given priority to the establishment of a permanent international tribunal.

How much progress has been done for the creation of this first segment of the new international law issuing from the end of the cold war and of the practice of crossed vetoes? The International Law Commission, an auxiliary body of the General Assembly charged with preparing the Assembly's decisions on the gradual codification of the international law to the advantage of he General Assembly, recently addressed the question.

The International Law Commission must still decide whether to make it into a judicial body of the United Nations, like the International Court of Justice, or not. If the international penal tribunal is to be an auxiliary body of the United Nations, then its Statute will be adopted by the General Assembly. If instead it will be a conventionally-based institution, a conference of the contracting parts will be necessary. The question of including a clause of mandatory extradition of the defendant, which some believe should be the object of a optional declaration of the states, remains unsolved.

It is estimated that the maximum mobilization that can be achieved today can lead to a major discussion of the political problems in this General Assembly. This so that the International Law Commission can complete its work from a technical point of view in May-July '94 and adopt the statute of the tribunal in the General Assembly of 1994.