In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:
(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.
This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that
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.
One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.
This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.
[UPDATE: One member of Karadzic’s legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is “illegal” because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I’m still trying to get hold of the decision to verify this.]
It is very questionable whether this, or US judgments against Karadžić, are even enforceable in Bosnia under international private law (although there were certain actions taken by SFOR and OHR in checking whether he has any assets). Still, it is worth mentioning that at the moment there is a sort of renaissance with regards these kinds of claims in Bosnia. There are around 3000 cases pending against Republika Srpska (mostly regarding Sarajevo, and basing them selves on Galić and Milošević), and some 1000 against Federation of Bosnia and Herzegovina (since I have not seen the actual claims, I presume they consider it the successor of Republic of Bosnia and Herzegovina)
Additionally, if I may add, in a case of Islamic Community of B&H against the City of Banja Luka and Republika Srpska (for destruction of 16 mosques, some of which were on UNESCO list), decided last year, after winning the first instance, the claimants lost on appeal because of the statute of limitation. Although the destruction of cultural property could, under circumstances, be a war crime not subject to statute of limitations there was no one actually convicted for those acts of destruction and the Supreme Court did not want to go into this sort of deduction of responsibility from the fact on the ground through some prejudicial question. I believe it is heading for Strasbourg.
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