International Criminal Tribunal for the former Yugoslavia


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, more commonly referred to as the International Criminal Tribunal for the
former Yugoslavia or ICTY, is a body of the United Nations established to
prosecute serious crimes committed during the Yugoslav Wars, and to try
their perpetrators. The tribunal is an ad hoc court which is located in The
Hague, Netherlands. The Court was established by Resolution
827 of the United Nations Security Council, which was passed on 25 May
1993. It has jurisdiction over four clusters of crimes committed on the
territory of the former Yugoslavia since 1991: grave breaches of the Geneva
Conventions, violations of the laws or customs of war, genocide, and crimes
against humanity. The maximum sentence it can impose is life imprisonment.
Various countries have signed agreements with the UN to carry out custodial
sentences. The final indictments were issued in
December 2004, the last of which were confirmed and unsealed in the spring of
2005. The Tribunal aims to complete all trials by the end of 2012 and all
appeals by 2015, with the exception of Radovan Karadžić whose trial is expected
to end in 2014 and Ratko Mladić and Goran Hadžić, who were not arrested
until 2011. The United Nations Security Council
called upon the Tribunal to finish its work by 31 December 2014 to prepare for
its closure and transfer of its responsibilities to the International
Residual Mechanism for Criminal Tribunals which began functioning for
the ICTY branch on 1 July 2013. The Tribunal will conduct and complete all
outstanding first instance trials, including those of Karadžić, Mladić and
Hadžić. It will conduct and complete all appeal proceedings for which the notice
of appeal against the judgement or sentence was filed before 1 July 2013.
Any appeals for which notice is filed after that date will be handled by the
Residual Mechanism. Hadžić became the last of 161 indicted fugitives to be
arrested after Serbian President Boris Tadić announced his arrest on 20 July
2011. History
=Yugoslav Wars and Genocide=The former state of Yugoslavia was
divided into separate republics, leading to a war that caused severe civilian
casualties on all sides. When discussing the events of the 1990s, historians and
sociologists have used the phrases war crimes and genocide to describe the
actions of military leaders, especially those of Croatia and Bosnia. The term
genocide is often controversial – and is separate in meaning to mass killing –
because it implies the killing and displacement of an entire ethnic,
national, racial, religious or political group During the Yugoslav Wars the
Srebrenica Massacre became the most infamous systematic killing of a
religious group on European soil since the Holocaust. More than 2,000 Muslim
men, women and children were killed by Serbian troops.
Coined after World War Two by Rafael Lemkin and adopted by the United Nations
General Assembly in 1948, the term has developed into one of the most crucial
laws of international co-operation. In its brief history in international law,
the understanding of genocide has helped law makers to create a reasonable method
for prosecuting accused perpetrators of “the crimes of crimes” as stated by
historian William Schabas which has led to the creation of Tribunals such as the
ICTY.=Creation=
United Nations Security Council Resolution 808 of 22 February 1993
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”, and
calling on the Secretary-General to “submit for consideration by the Council
… a report on all aspects of this matter, including specific proposals and
where appropriate options … taking into account suggestions put forward in this
regard by Member States”. The Court was originally proposed by
German Foreign Minister Klaus Kinkel. By 25 May 1993, the international community
had tried to pressure the leaders of the former Yugoslavian republics
diplomatically, militarily, politically, economically, and – with Resolution 827
– through juridical means. Resolution 827 of 25 May 1993 approved S/25704
report of the Secretary-General and adopted the Statute of the International
Tribunal annexed to it, formally creating the ICTY. It would have
jurisdiction over four clusters of crime committed on the territory of the former
Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of
the laws or customs of war, genocide, and crime against humanity. The maximum
sentence it can impose is life imprisonment.
=Implementation=In 1993, the ICTY built its internal
infrastructure. 17 states have signed an agreement with the ICTY to carry out
custodial sentences. 1993-94: In the first year of its
existence, the Tribunal laid the foundations for its existence as a
judicial organ. The Tribunal established the legal framework for its operations
by adopting the rules of procedure and evidence, as well as its rules of
detention and directive for the assignment of defense counsel. Together
these rules established a legal aid system for the Tribunal. As the ICTY is
part of the United Nations and as it was the first international court for
criminal justice, the development of a juridical infrastructure was considered
quite a challenge. However after the first year the first ICTY judges had
drafted and adopted all the rules for court proceedings.
1994-95: The ICTY established its offices within the Aegon Insurance
Building in The Hague and detention facilities in Scheveningen in The Hague.
The ICTY hired now many staff members. By July 1994 there were sufficient staff
members in the office of the prosecutor to begin field investigations and by
November 1994 the first indictment was presented and confirmed. In 1995, the
entire staff numbered more than 200 persons and came from all over the
world. Moreover, some governments assigned their legally trained people to
the ICTY.=Operation=
In 1994 the first indictment was issued against the Bosnian-Serb concentration
camp commander Dragan Nikolić. This was followed on 13 February 1995 by two
indictments comprising 21 individuals which were issued against a group of 21
Bosnian-Serbs charged with committing atrocities against Muslim and Croat
civilian prisoners. While the war in the former Yugoslavia was still raging, the
ICTY prosecutors showed that an international court was viable. However,
no accused was arrested. The court confirmed 8 indictments
against 46 individuals and issued arrest warrants. Bosnian Serb indictee Duško
Tadić became the subject of the Tribunal’s first trial. Tadić was
arrested by German police in Munich in 1994 for his alleged actions in the
Prijedor region in Bosnia-Herzegovina. He made his first appearance before the
ICTY Trial Chamber on 26 April 1995, and pleaded not guilty to all of the charges
in the indictment. 1995–96: Between June 1995 and June
1996, 10 public indictments had been confirmed against a total of 33
individuals. Six of the newly indicted persons were transferred in the
Tribunal’s detention unit. In addition to Duško Tadic, by June 1996 the
tribunal had Tihomir Blaškić, Dražen Erdemović, Zejnil Delalić, Zdravko
Mucić, Esad Landžo and Hazim Delić in custody. Erdemović became the first
person to enter a guilty plea before the tribunal’s court. Between 1995 and 1996,
the ICTY dealt with miscellaneous cases involving several detainees, which never
reached the trial stage. Some of the accused had been arrested and others
surrendered to the ICTY.=Accomplishments=
In 2004, the ICTY published a list of five successes which it claimed it had
accomplished: “Spearheading the shift from impunity to
accountability”, pointing out that, until very recently, it was the only
court judging crimes committed as part of the Yugoslav conflict, since
prosecutors in the former Yugoslavia were, as a rule, reluctant to prosecute
such crimes; “Establishing the facts”, highlighting
the extensive evidence-gathering and lengthy findings of fact that Tribunal
judgments produced; “Bringing to justice thousands of
victims and giving them a voice”, pointing out the large number of
witnesses that had been brought before the Tribunal;
“The accomplishments in international law”, describing the fleshing out of
several international criminal law concepts which had not been ruled on
since the Nuremberg Trials; “Strengthening the Rule of Law”,
referring to the Tribunal’s role in promoting the use of international
standards in war crimes prosecutions by former Yugoslav republics.
Organization The Tribunal employs around 900 staff.
Its organisational components are Chambers, Registry and the Office of the
Prosecutor.=Prosecutors=
The Prosecutor is responsible for investigating crimes, gathering evidence
and prosecutions and is head of the Office of the Prosecutor. The Prosecutor
is appointed by the UN Security Council upon nomination by the UN
Secretary-General. The current prosecutor is Serge
Brammertz. Previous Prosecutors have been Ramón Escovar Salom of Venezuela,
Richard Goldstone of South Africa, Louise Arbour of Canada, Eric Östberg of
Sweden, and Carla Del Ponte of Switzerland, who until 2003,
simultaneously served as the Prosecutor of the International Criminal Tribunal
for Rwanda where she led the OTP since 1999. David Tolbert, the President of
the International Center for Transitional Justice, was also appointed
Deputy Prosecutor of the ICTY.=Chambers=
Chambers encompasses the judges and their aides. The Tribunal operates three
Trial Chambers and one Appeals Chamber. The President of the Tribunal is also
the presiding Judge of the Appeals Chamber.
Judges There are 20 permanent judges and three
ad litem judges who serve on the Tribunal.
UN member and observer states can each submit up to two nominees of different
nationalities to the UN Secretary-General. The UN
Secretary-General submits this list to the UN Security Council which selects
from 28 to 42 nominees and submits these nominees to the UN General Assembly. The
UN General Assembly then elects 14 judges from that list. Judges serve for
4 years and are eligible for re-election. The UN Secretary-General
appoints replacements in case of vacancy for the remainder of the term of office
concerned. On 21 October 2015, Judge Carmel Agius
of Malta was elected President of the ICTY and Liu Daqun of China was elected
Vice-President; they will assume their new positions on 17 November 2015. His
predecessors were Antonio Cassese of Italy, Gabrielle Kirk McDonald of the
United States, Claude Jorda of France, Meron, Fausto Pocar of Italy, Patrick
Robinson of Jamaica, and Theodor Meron of the United States.
=Registry=The Registry is responsible for handling
the administration of the Tribunal; activities include keeping court
records, translating court documents, transporting and accommodating those who
appear to testify, operating the Public Information Section, and such general
duties as payroll administration, personnel management and procurement. It
is also responsible for the Detention Unit for indictees being held during
their trial and the Legal Aid program for indictees who cannot pay for their
own defence. It is headed by the Registrar, currently John Hocking of
Australia. His predecessors were Hans Holthuis of the Netherlands, Dorothée de
Sampayo Garrido-Nijgh of the Netherlands, and Theo van Boven of the
Netherlands.=Detention facilities=
Those defendants on trial and those who were denied a provisional release are
detained at the United Nations Detention Unit on the premises of the Penitentiary
Institution Haaglanden, location Scheveningen, located some 3 km by road
from the courthouse. The indicted are housed in private cells which have a
toilet, shower, radio, satellite TV, personal computer and other luxuries.
They are allowed to phone family and friends daily and can have conjugal
visits. There is also a library, a gym and various rooms used for religious
observances. The inmates are allowed to cook for themselves. All of the inmates
mix freely and are not segregated on the basis of nationality. As the cells are
more akin to a university residence instead of a jail, some have derisively
referred to the ICT as the “Hague Hilton”. The reason for this luxury
relative to other prisons is that the first president of the court wanted to
emphasise that the indictees are innocent until proven guilty.
Indictees The very first hearing at the ICTY was
referral request in the Tadić case on 8 November 1994. As of August 2014, the
Tribunal has indicted 161 individuals, and has already completed proceedings
with regard to 141 of them: 18 have been acquitted, 74 sentenced, 13 have had
their cases transferred to courts in Bosnia and Herzegovina, Croatia and
Serbia. Another 36 cases have been terminated either because indictments
were withdrawn or because the indictees died before or after transfer to the
Tribunal. Of the 74 convicted, 51 were transferred to 14 different states where
they served their prison sentences, excluding those whose sentences amounted
to time spent in detention during trial. 50 have served their term, and 3 died
while serving their sentences. Proceedings for another 20 indictees are
still ongoing — 4 are in the trial phase and 16 are before the Appeals Chamber.
The indictees ranged from common soldiers to generals and police
commanders all the way to prime ministers. Slobodan Milošević was the
first sitting head of state indicted for war crimes. Other “high level” indictees
included Milan Babić, former President of the Republika Srpska Krajina; Ramush
Haradinaj, former Prime Minister of Kosovo; Radovan Karadžić, former
President of the Republika Srpska; Ratko Mladić, former Commander of the Bosnian
Serb Army and Ante Gotovina, former General of the Croatian Army.
Haradinaj’s trial began at The Hague on 5 March 2007 and the closing brief was
given on 23 January 2008. The final decision of the ICTY was expected in
March 2008. On 3 April 2008, ICTY issued a public notice of the Haradinaj
verdict, in which he was acquitted of all charges. The judge said much of the
evidence had been non-existent against Haradinaj or at best inconclusive. But
he complained of witness intimidation, saying some witnesses had not testified
because they had been afraid. On 21 July 2010, the cases of UÇK commanders Ramush
Haradinaj, Idriz Balaj and Lahi Brahimaj were re-opened for trial. However on 29
November 2012 all three were acquitted of all charges for a second time.
=The Cases=As of August 2014, there are four
ongoing trials: Goran Hadžić, Ratko Mladić, Radovan Karadžić and Vojislav
Šešelj. Each case is in the process of judgement by the courts, with the cases
for Karadžić and Šešelj due in late 2015. The case of Karadžić was brought
to the public eye once again in July 2015 with the twentieth anniversary of
the Srebrenica massacre which resulted in the deaths of as many as eight
thousand men and boys by soldiers under the command of Karadžić.
Controversy has played a part in the case of Šešelj, with one judge being
disqualified in 2013 for having “demonstrated an unacceptable appearance
of bias in favour of conviction”. which is in violation of Article 20 of the
ICTY Statute. Article 20 empowers the judges to
“ensure that a trial is fair and expeditious and that proceedings are
conducted … [to allow for the] full respect for the rights of the accused
and due regard for the protection of victims and witnesses infusing due
process Since late 2014 Šešelj has been in
Serbia awaiting his verdict due to humanitarian reasons concerning his
health, which has deteriorated over the course of the trial. Five further cases
are at the appeals stage—Đorđević, Perišić, Popović et al, Šainović et al,
and Tolimir cases. An additional 23 individuals have been the subject of
contempt proceedings. Croat Serb General and former President of the Republic of
Serbian Krajina Goran Hadžić was the last fugitive wanted by the Tribunal to
be arrested on 20 July 2011. Criticism
Skeptics argued that an international court could not function while the war
in the former Yugoslavia was still going on. This would be a huge undertaking for
any court, but for the ICTY it would be an even greater one, as the new tribunal
still needed judges, a prosecutor, a registrar, investigative and support
staff, an extensive interpretation and translation system, a legal aid
structure, premises, equipment, courtrooms, detention facilities, guards
and all the related funding. Criticisms of the court include:
Moscow has criticised the ICTY as being ineffective, costly and politically
motivated On 6 December 2006, the Tribunal at The
Hague approved the use of force-feeding of Serbian politician Vojislav Šešelj.
They decided it was not “torture, inhuman or degrading treatment if there
is a medical necessity to do so… and if the manner in which the detainee is
force-fed is not inhuman or degrading”. Reducing the indictment charges after
the arrest of Ratko Mladić, Croatian officials publicly condemned chief
prosecutor Serge Brammertz for his announcement that the former Bosnian
Serb General will be tried solely for crimes allegedly committed in Bosnia,
not in Croatia. Critics have questioned whether the
Tribunal exacerbates tensions rather than promotes reconciliation, as is
claimed by Tribunal supporters. Polls show a generally negative reaction to
the Tribunal among both Serbs and Croats. A majority of Serbs and Croats
have expressed doubts regarding the ICTY’s integrity and question the
tenability of its legal procedures. 68% of indictees have been Serbs, to the
extent that a sizeable portion of the Bosnian Serb and Croatian Serb political
and military leaderships have been indicted. Many have seen this as
reflecting bias, while the Tribunal’s defenders have seen this as indicative
of the actual proportion of crimes committed. However, Marko Hoare claimed
that, aside from Milošević, only Momčilo Perišić, who was acquitted, has been
indicted from the Serbian military or political top when it comes to wars in
Croatia and Bosnia. According to Hoare, a former employee at
the ICTY, an investigative team worked on indictments of senior members of the
“joint criminal enterprise”, including not only Milošević but also Veljko
Kadijević, Blagoje Adžić, Borisav Jović, Branko Kostić, Momir Bulatović and
others. However, Hoare claims that, due to Carla del Ponte’s intervention, these
drafts were rejected, and the indictment limited to Milošević alone.
There have been allegations of censorship: in July 2011, the Appeals
Chamber of ICTY confirmed the judgment of the Trial Chamber which found
journalist and former Tribunal’s OTP spokesperson Florence Hartmann guilty of
contempt of court and fined her €7,000. She disclosed documents of FR
Yugoslavia’s Supreme Defense Council meetings and criticized the Tribunal for
granting confidentiality of some information in them to protect Serbia’s
‘vital national interests’ during Bosnia’s lawsuit against the country for
genocide in front of the International Court of Justice. Hartmann argued that
Serbia was freed of the charge of genocide because ICTY redacted certain
information in the Council meetings. Since these documents have in the
meantime been made public by the ICTY itself, a group of organizations and
individuals, who supported her, said that the Tribunal in this appellate
proceedings “imposed a form of censorship aimed to protect the
international judges from any form of criticism”.
Klaus-Peter Willsch compared the Ante Gotovina verdict, in which the late
Croatian president Franjo Tuđman was posthumously found to have been
participating in a Joint Criminal Enterprise, with the 897 Cadaver Synod
trial in Rome, when Pope Stephen VI had the corpse of Pope Formosus exhumed, put
on trial and posthumously convicted. Some sentences have been considered too
mild sentences, even within the Tribunal, complained at small sentences
of convicted war criminals in comparison with their crimes. In 2010, Veselin
Šljivančanin’s sentence for his involvement in the Vukovar massacre was
cut from 17 to 10 years, which caused outrage in Croatia. Upon hearing that
news, Vesna Bosanac, who had been in charge of the Vukovar hospital during
the fall of the city, said that the “ICTY is dead” for her: “For crimes that
he [Šljivančanin], had committed in Vukovar, notably at Ovčara, he should
have been jailed for life. I’m outraged…. The Hague(-based) tribunal
has showed again that it is not a just tribunal.” Danijel Rehak, the head of
Croatian Association of Prisoners in Serbian Concentration Camps, said, “The
shock of families whose beloved ones were killed at Ovčara is unimaginable.
The court made a crucial mistake by accepting a statement of a JNA officer
to whom Šljivančanin was a commander. I cannot understand that”. Pavle Strugar’s
8-year sentence for shelling of Dubrovnik, a UNESCO World Heritage Site,
also caused outrage in Croatia. Judge Kevin Parker was named in a Croatian
journal as a main cause of the system’s failure for having dismissed the
testimonies of numerous witnesses. Some of the defendants, such as Slobodan
Milošević, claimed that the Court has no legal authority because it was
established by the UN Security Council instead of the UN General Assembly and
so had not been created on a broad international basis. The Tribunal was
established on the basis of Chapter VII of the United Nations Charter; the
relevant portion of which reads “the Security Council can take measures to
maintain or restore international peace and security”. The legal criticism has
been succinctly stated in a memorandum issued by Austrian Professor Hans
Köchler, which was submitted to the President of the Security Council in
1999. British Conservative Party MEP Daniel Hannan has called for the court
to be abolished, claiming it is anti-democratic and a violation of
national sovereignty. The interactive thematic debate on the
role of international criminal justice in reconciliation was convened on 10
April 2013 by the President of the General Assembly during the resumed part
of the GA’s 67th Session. The debate was scheduled after the convictions of Ante
Gotovina and Mladen Markač for inciting war crimes against Serbs in Croatia were
overturned by an ICTY Appeals Panel in November 2012. The ICTY president
Theodor Meron announced that all three Hague war-crimes courts turned down the
invitation of UNGA president to participate in the debate about their
work. The President of the General Assembly described Meron’s refusal to
participate in this debate as scandalous. He emphasized that he does
not shy away from criticizing the ICTY, which has “convicted nobody for inciting
crimes committed against Serbs in Croatia.” Tomislav Nikolić, the
president of Serbia criticized the ICTY, claiming it did not contribute but
hindered reconciliation in the former Yugoslavia. He added that although there
is no significant ethnic disproportion among the number of casualties in the
Yugoslav wars, the ICTY sentenced Serbs and ethnic Serbs to a combined total of
1150 years in prison while claiming that members of other ethnic groups have been
sentenced to a total of 55 years for crimes against Serbs. Vitaly Churkin,
the ambassador of Russia to the UN, criticized the work of the ICTY,
especially the overturned convictions of Gotovina and Ramush Haradinaj.
=Response to criticism=Supporters of the work of the ICTY
responded to critics in various publications. In a response to David
Harland’s Selective Justice, Jelena Subotić, an assistant professor of
political science at Georgia State University and author of Hijacked
Justice: Dealing with the Past in the Balkans, responded that the critics of
the Tribunal miss the point, “which is not to deliver justice for past wrongs
equally for ‘all sides’, fostering reconciliation, but to carefully measure
each case on its own merits … We should judge the work of the tribunal by
its legal expertise, not by the political outcomes we desire.”
Marko Hoare claims the accusations of the tribunal’s “selective justice” stem
from Serbian nationalist propaganda. He wrote: “This is, of course, the claim
that hardline Serb nationalists and supporters of Slobodan Milosevic have
been making for about the last two decades. Instead of carrying out any
research into the actual record of the ICTY in order to support his thesis,
Harland simply repeats a string of cliches of the kind that frequently
appear in anti-Hague diatribes by Serb nationalists.”
See also Command responsibility
Joint Criminal Enterprise International Criminal Court
International Criminal Tribunal for Rwanda
Trial of Gotovina et al Thematic debate on the role of
international criminal justice in reconciliation
References Further reading
External links International Progress Organization:
Monitoring of the ICTY Del Ponte, Carla. The role of
international criminal prosecutions in reconstructing divided communities,
public lecture by Carla Del Ponte, Prosecutor, International Criminal
Tribunal for the Former Yugoslavia, given at the London School of Economics,
20 October 2003. Topical digests of the case law of ICTR
and ICTY, Human Rights Watch, 2004 Hague Justice Portal: Academic gateway
to The Hague organisations concerning international peace, justice and
security. Calendar of court proceedings before the
ICTY: Hague Justice Portal Why Journalists Should be Worried by the
Rwanda Tribunal Precedents by Thierry Cruvellier for Reporters Without Borders
SENSE News Agency, a special project based in ICTY
Complete web-based video archive of the Milosevic trial
War Crimes, conditionality and EU integration in the Western Balkans, by
Vojin Dimitrijevic, Florence Hartmann, Dejan Jovic, Tija Memisevic, edited by
Judy Batt, Jelena Obradović, Chaillot Paper No. 116, June 2009, European Union
Institute for Security Studies Introductory note by Fausto Pocar on the
Statute of the International Criminal Tribunal for the former Yugoslavia in
the Historic Archives of the United Nations Audiovisual Library of
International Law Procedural history of the Statute of the
International Criminal Tribunal for the former Yugoslavia in the Historic
Archives of the United Nations Audiovisual Library of International Law
Lecture by Fausto Pocar entitled Completing the Mandate: The Legal
Challenges Facing the International Criminal Tribunal for the former
Yugoslavia in the Lecture Series of the United Nations Audiovisual Library of
International Law Lecture by Fausto Pocar entitled
Contribution of the International Criminal Tribunal for the former
Yugoslavia to the Development of International Humanitarian Law in the
Lecture Series of the United Nations Audiovisual Library of International Law
Lecture by Patrick Lipton Robinson, Fairness and Efficiency in the
Proceedings of the International Criminal Tribunal for the former
Yugoslavia in the Lecture Series of the United Nations Audiovisual Library of
International Law

Leave a Reply

Your email address will not be published. Required fields are marked *