The International Criminal Tribunal for the Former Yugoslavia

The wars in the former Yugoslavia

Efforts to obtain independence were intensified by various national groups in Yugoslavia from 1988 onwards and in 1990/91 some of the former constituent Republics went so far as to declare their independence. The central government in Belgrade, which was dominated by Greater Serbian nationalists, sent in the army in an attempt to preserve the state‘s unity. The subsequent conflict between the federal forces and the newly created Croatian army became a full-fledged civil war, which came to be characterized by paramilitary action and ethnic consolidation in the two territories (Serbian and Croatian). In the course of these campaigns the population was subjected to displacement, mass internment, torture and ethnic cleansing. Founding a state for a single nationality proved least possible in Bosnia and Herzegovina. It was clear that a separate state could only be created if the Serbs, Muslim Bosnians and Croatians were to work together. However, during this second civil war all sides sought to assert their own dominance in their respective regions and did not balk at committing war crimes. In 1998/99, the conflict between the Serbs and the Kosovo Albanians escalated into a third civil war.

The creation of the International Criminal Tribunal for the Former Yugoslavia

After the reports of ethnic cleansing, arbitrary shootings and human rights violations in the detention camps had mounted throughout the summer of 1992, the United Nations established a Commission of Experts in October to investigate human rights violations in the former Yugoslavia. The European Community and the OSCE also collected a considerable quantity of evidence. In various resolutions, the UN Security Council called on the parties to the civil war to comply with the provisions of the Geneva Conventions and reminded persons who committed or ordered the commission of grave breaches of the Conventions of their individual responsibility for such breaches. Finally, in Resolution 808 the Security Council stated its intention of establishing an international tribunal for the prosecution of the persons responsible for such crimes. The Tribunal’s Statute was adopted with Resolution 827 in May 1993 under Chapter VII, Article 41 of the UN Charter. Its provisions are based on the Hague Convention and Regulations on War on Land of 1907, the Geneva Conventions, the Genocide Convention of 1948 and the definition of “crimes against humanity” from the Nuremberg Military Tribunal of 1945. The new count of rape was based on national criminal law and international humanitarian law. Thus, for the first time the particular suffering of women during such massive crimes is explicitly taken into account within the statute of an international court. In addition, comprehensive mechanisms were designed for the protection of witnesses and victims.

The structure of the Tribunal

The Tribunal, which commenced its work in The Hague on 17 November 1993, comprises three Trial Chambers and one Appeals Chamber. Proceedings may only be commenced in the presence of the accused. The maximum penalty that may be imposed is lifelong imprisonment. The 16 judges are selected by the General Assembly of the United Nations from a list submitted by the Security Council. The independent chief prosecutor is appointed by the Security Council on nomination by the Secretary-General.

Achievements

Indictments have been issued for 161 suspects (as of July 2011) from all national groups. The proceedings have concluded in 126 cases. There were 64 guilty verdicts and 13 acquittals. 13 cases were referred to national courts, in 20 cases the prosecutor withdrew his accusation, and 16 indictees died before or during the trial. As of July 2011 there were still 35 ongoing proceedings.

Among those who have been indicted and convicted for atrocities they committed are camp commanders (e.g. in Omarska and Foca), as well as generals from all sides for the systematic displacement and murder of specific population groups, for example in Srebrenica. Police officers who arbitrarily arrested, tortured and shot groups of people or raped women have likewise been convicted, as have persons responsible for the paramilitary groups that played a significant role in the displacements, atrocities and rape.

Some of the accused were extradited to the Tribunal by countries in the region or by third states; others turned themselves in or were arrested by international forces (SFOR). The most prominent indictees before the court are the self-appointed Bosnian Serb President Radovan Karadzic, detained in July 2008, and his military commander, Ratko Mladic who, after long years of hiding, was finally arrested and extradited to the ICTY in May 2011. They are held responsible for the massacre of Srebrenica, where up to 8.000 Muslim
Bosnian men were murdered by Serbian military. At the end of July, 2011, Goran Had‑ic, former President of the self-proclaimed Republic of Serbian Krajina, was arrested. He was the last remaining fugitive indicted by the ICTY.

Unfortunately, the establishment of the ICTY did not immediately produce deterrent effects or contribute to peace-building. The massacre of Srebrenica and other grave crimes occurred in Bosnia and later in Kosovo after the beginning of ICTY’s work. But the pressure that came from the ICTY led to the opening of a series of judicial trials in the states that participated in the conflicts, including proceedings against their own nationals that are presumed to be responsible of war crimes. Those include cases that are referred to the national courts by the ICTY itself. The International Court is, by its very nature, of limited duration. The end of its activities has been now set, after some delays, for the year 2014.

International law questions · The ICTY is the first court ever established by the Security Council. Various commentators have noted that the legal basis cited for the foundation of the court, namely Article 41 of the UN Charter, makes no express mention of the use of judicial measures to maintain or restore international peace and security. However, there is equally no plausible reason to suppose that an international criminal tribunal cannot constitute a measure under that Article.

An international treaty concluded by the states concerned, as in the case of the International Criminal Court, might have lent the body greater legitimacy. Such a treaty was however an impossibility in 1993, when the parties were still at war.

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