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International Criminal Tribunal for the former Yugoslavia
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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 (UN) established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their alleged perpetrators.
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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 (UN) established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their alleged perpetrators. The tribunal is an ad-hoc court which is located in The Hague, the Netherlands.
It was originally proposed by German Foreign Minister Klaus Kinkel and established by Resolution 827 of the United Nations Security Council, which was passed on May 25, 1993. It has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. It can try only individuals, not organizations or governments. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences. The last indictment was issued March 15, 2004. The Tribunal aims to complete all trials by the end of 2009 and all appeals by 2010. The ICTY should not be confused with the International Criminal Court and the International Court of Justice; both courts are also based in The Hague, but have a permanent status and different jurisdictions.
Organization
The Tribunal employs around 1,200 staff. Its organisational components are Chambers, Registry and the Office of the Prosecutor (OTP).
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. Currently, this is Fausto Pocar of Italy (since 2005). His predecessors were Antonio Cassese of Italy (1993–1997), Gabrielle Kirk McDonald of the United States (1997–1999), Claude Jorda of France (1999–2002), Theodor Meron of the United States (2002–2005).
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 Hans Holthuis of the Netherlands (since 2001). His predecessors were Dorothée de Sampayo Garrido-Nijgh of the Netherlands (1995–2000) and Theo van Boven of the Netherlands (February 1994 to December 1994).
The Office of the Prosecutor (OTP) is responsible for investigating crimes, gathering evidence and prosecuting indictees. It is headed by the Prosecutor, Serge Brammertz. Previous Prosecutors have been Ramón Escovar Salom of Venezuela (1993–1994), Richard Goldstone of South Africa (1994–1996), Louise Arbour of Canada (1996–1999) and Carla Del Ponte of Switzerland (1999–2007), who until 2003, simultaneously served as the Prosecutor of the International Criminal Tribunal for Rwanda where she led the OTP since 1999.
Judges
There are 16 permanent judges and 12 ad litem judges who serve on the tribunal. They are elected to four-year terms by the UN General Assembly. They can be re-elected.
On 17 November 2008, Judge Patrick Robinson (Jamaica) was elected as the new President of the ICTY by the permanent judges in an Extraordinary Plenary Session. Judge O-Gon Kwon (South Korea) was elected as the new Vice-President.
List of judges provided on Organs of the Tribunal at: http://www.un.org/icty/glance-e/index.htm
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 justice to 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.
For more information see:
Criticism
Criticisms levelled against the court include:
Practicality
- One key indictee is still not apprehended, which reflects badly on its image. Defenders point out that the Tribunal has no powers of arrest, and is reliant on other agencies (notably national governments, EUFOR, and KFOR) to apprehend and extradite indictees.
- The Tribunal's power to issue secret indictments creates uncertainty among people who regard themselves as possible indictees, which places an unreasonable strain on their ability to proceed with their everyday lives, both in the short and long term.
- 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 the Serb and Croat public. The majority of Croats and Serbs doubt the tribunal's integrity and question the tenability of its legal procedures (although the Serbian and Croatian opinions on the court are almost always exactly the opposite with regard to the cases that involve both parties). Kosovo Albanians and Bosnian Muslims, on the other hand, have expressed their high regard for the court and the trust in its impartiality though these feelings change when their own individuals stand accused of atrocities against opponents.
- Critics, even within the United Nations, have complained of the Tribunal's high cost. The two-year budget for the Tribunal for 2004 and 2005 was $271,854,600 (currently $ million). The cost is borne by all U.N. members.
- Critics have also complained of the length of trials, with some extending for several years. Supporters of the Tribunal respond that many of the defendants are charged with multiple crimes against many victims, all of which must be proven beyond reasonable doubt, thus requiring long trials. Simultaneous translation also slows trials.
Ethical issues
- It was established by the UN Security Council instead of the UN General Assembly. Miloševic's claim that the court has no legal authority rested on the distinction that, as a result, it had not been created on a broad international basis. The Tribunal was established on the basis of Chapter VII of the UN Charter; the relevant portion of the Charter reads "the Security Council can take measures to maintain or restore international peace and security". It is disputed whether a tribunal could be considered a measure to maintain or restore international peace and security. The suggestion to utilize Chapter VII was initially made in a report from the Secretary-General to the Security Council. The legal criticism has been succinctly stated in a issued by Austrian Professor Hans Köchler, which was submitted to the President of the Security Council in 1999.
- Whilst sympathisers of the Tribunal hold that Serb control of the established command structure (and most of the weaponry) of the Yugoslav People's Army (JNA) from the start of the various wars facilitated the commission of crimes on a wide and organised scale; and Serb command structure facilitated the identification of those with command responsibility for war crimes, critics (Serbian sympathisers) remain sceptical about the disproportionately large number (~75%) of indictees being Serbs or Montenegrins (to the extent that a sizeable portion of the Bosnian Serb and Serbian political and military leaderships have been indicted), whereas there have been too few indictments resulting from crimes committed against Serbs (eg. many Croat indictees have been charged with crimes committed against Bosnian Muslims). As non-sympathisers (of the Serbs) in political circles and the media often loosely label the Serbs as having "lost" every conflict, critics respond that the "winning" side must have carried out widespread atrocities to have emerged triumphant.
- The Serbian (and Montenegrin) indictees are of higher rank than those of other nations and face with broader accusations. Although it was reported that had Franjo Tudman and Alija Izetbegovic lived, that they too may have been indicted, the statements came disconcertingly late since their deaths (1999 and 2003 respectively) happened long after the last of their actions (1995). Critics believe that the posthumous accusations were a symbolic gesture so as to appear neutral when in actual fact the court had no intention of trying the individuals when they were alive; yet many Serbs had been appearing in the trial chambers during those years. In addition, whilst Slobodan Miloševic was in power (until 2000), there was very little interest by the court to investigate any atrocities against Serbs.
- NATO spokesman Jamie Shea said the following about the court:
- NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, and of course to build a second chamber so that prosecutions can be speeded up so let me assure that we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don't anticipate any others at this stage.
- The Tribunal has never prosecuted the citizens of any NATO countries as a result of NATO's involvement in the Kosovo conflict.
- The ICTY budget is not entirely financed by the UN, but also by private entities; 14% being privately funded and the remainder being provided by the UN (2001). This private co-financing might prove a problem concerning the Tribunal's independence and impartiality.
Indictees
Since the very first hearing (referral request in the Tadic case) on 8 November, 1994, the Tribunal has indicted a total of 161 individuals, and has already completed proceedings with regard to 100 of them: five have been acquitted, 48 sentenced (seven are awaiting transfer, 24 have been transferred, 16 have served their term, and one died while serving his sentence), 11 have had their cases transferred to local courts. Another 36 cases have been terminated (either because indictments were withdrawn or because the accused died, before or after transfer to the Tribunal).
As of November 2008, there were eight ongoing trials and a further four cases in the pre-trial stage. Ten further cases are at the appeals stage and two accused, Ratko Mladic and Goran Hadžic, are still at large.
The figure of the accused at the appeals stage includes Sefer Halilovic, Fatmir Limaj and Isak Musliu (who have been acquitted and released but against whom an appeal by the Office of the Prosecutor is running), as well as Amir Kubura and Naser Oric. These two accused have been sentenced and granted early release (Kubura) and release (Oric), but the OTP has appealed against the Trial Chamber's Judgements.
A further 19 individuals have also been the subject of contempt proceedings.
The indictees ranged from common soldiers and to generals and police commanders all the way to Prime Ministers. Slobodan Miloševic was the first sitting head of state indicted for war crimes. Other "high level" indictees included Milan Babic, President of the Republika Srpska Krajina; Ramush Haradinaj, former Prime Minister of Kosovo; Radovan Karadžic, former President of the Republika Srpska; Ratko Mladic, former Commander of the Bosnian Serb Army and Ante Gotovina, former General of the Croatian Army.
Haradinaj's trial began at The Hague on March 5, 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.
On July 31, 2008, Radovan Karadzic appeared in front of the judges of the tribunal for the first time in 13 years.
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 and other comforts. They are allowed to phone family and friends daily and can have conjugal visits (Serb general Nebojsa Pavkovic became a father at the age of 59 as a result of one such visit). There is also a library, a gym and various rooms used for religious observances. The inmates are even allowed to cook for themselves. All of the inmates mix freely and are not segregated on the basis of nationality. The prison is often called "the most humane prison on earth".
Further reading
- Ackerman, J.E. and O'Sullivan, E.: Practice and procedure of the International Criminal Tribunal for the Former Yugoslavia: with selected materials for the International Criminal Tribunal for Rwanda, The Hague, KLI, 2000.
- Aldrich, G.H.: Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, American Journal of International Law, 1996, pp. 64-68.
- Bassiouni, M.C.: The Law of the International Criminal Tribunal of the Former Yugoslavia, New York, Transnational Publications, 1996.
- Boelaert-Suominen, S.: The International Criminal Tribunal for the Former Yugoslavia (ICTY) anno 1999: its place in the international legal system, mandate and most notable jurisprudence, Polish Yearbook of International Law, 2001, pp. 95-155.
- Boelaert-Suominen, S.: The International Criminal Tribunal for the Former Yugoslavia and the Kosovo Conflict, International Review of the Red Cross, 2000, pp. 217-251.
- Cassese, Antonio: The ICTY: A Living and Vital Reality”, Journal of International Criminal Justice Vol.2, 2004, No.2, pp. 585-597
- Cisse, C.: The International Tribunals for the Former Yugoslavia and Rwanda: some elements of comparison, Transnational Law and Contemporary Problems, 1997, pp. 103-118.
- Clark, R.S. and SANN, M.: A critical study of the International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law, 1997, pp. 198-200.
- Goldstone, R.J.: Assessing the work of the United Nations war crimes tribunals, Stanford Journal of International Law, 1997, pp. 1-8.
- Ivkovic, S.K.: Justice by the International Criminal Tribunal for the Former Yugoslavia, Stanford Journal of International Law, 2001, pp. 255-346.
- Jones, J.W.R.D.: The practice of the international criminal tribunals for the Former Yugoslavia and Rwanda, New York, Transnational, 2000.
- Kaszubinski, M.: The International Criminal Tribunal for the Former Yugoslavia, in: Bassiouni, M.C. (ed.), Post-conflict justice, New York, Transnational, 2002, pp. 459-585.
- Kerr, R.: International judicial intervention: the International Criminal Tribunal for the Former Yugoslavia, International Relations, 2000, pp. 17-26.
- Kerr, R.: The International Criminal Tribunal for the Former Yugoslavia: an exercise in law, politics and diplomacy, Oxford, OUP, 2004.
- King, F. and La Rosa, A.: Current Developments. International Criminal Tribunal for the Former Yugoslavia, B.T.I.R., 1997, pp. 533-555.
- Klip, A. and Sluiter, G.: Annotated leading cases of international criminal tribunals; (Vol. III) The International Criminal Tribunal for the Former Yugoslavia 2000-2001, Schoten, Intersentia, 2003.
- Köchler, Hans: Global Justice or Global Revenge? International Criminal Justice at the Crossroads, Vienna/New York, Springer, 2003, pp. 166-184.
- Kolb, R.: The jurisprudence of the Yugoslav and Rwandan Criminal Tribunals on their jurisdiction and on international crimes, British Yearbook of International Law, 2001, pp. 259-315.
- Lamb, S.: The powers of arrest of the International Criminal Tribunal for the Former Yugoslavia, British Yearbook of International Law, 2000, pp. 165-244.
- Laughland, J.: Travesty: The Trial of Slobodan Miloševic and the Corruption of International Justice, London, Pluto Press, 2007.
- Lescure, K.: International justice for former Yugoslavia: the working of the International Criminal Tribunal of the Hague, The Hague, KLI, 1996.
- McDonald, G.K.: Reflections on the contributions of the International Criminal Tribunal for the Former Yugoslavia, Hastings International and Comparative Law Review, 2001, pp. 155-172.
- Mettraux, G.: Crimes against humanity in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and for Rwanda, Harvard International Law Journal, 2002, pp. 237-316.
- Morris, V. and Scharf, M.P.: An insider's guide to the International Criminal Tribunal for the Former Yugoslavia, African Yearbook of International Law, 1995, pp. 441-446.
- Murphy, S.D.: Progress and jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, American Journal of International Law, 1999, pp. 57-96.
- Panovsky, D.: Some war crimes are not better than others: the failure of the International Criminal Tribunal for the Former Yugoslavia to prosecute war crimes in Macedonia, Northwestern University Law Review, 2004, pp. 623-655.
- Pilouras, S.: International Criminal Tribunal for the Former Yugoslavia and Milosevic's trial, New York Law School Journal of Human Rights, 2002, pp. 515-525.
- Roberts, K.: The law of persecution before the International Criminal Tribunal for the Former Yugoslavia, Leiden Journal of International Law, 2002, pp. 623-663.
- Robinson, P.L.: Ensuring fair and expeditious trials at the International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law, 2000, pp. 569-589.
- Shenk, M.D.: International Criminal Tribunal for the Former Yugoslavia and for Rwanda, The International Lawyer, 1999, pp. 549-554.
- Shraga, D. and Zackalin, R.: The International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law, 1994, pp. 360-380.
- Sjocrona, J.M.: The International Criminal Tribunal for the Former Yugoslavia: some introductory remarks from a defence point of view, Leiden Journal of International Law, 1995, pp. 463-474.
- Tolbert, David: The ICTY: Unforeseen Successes and Foreseeable Shortcomings, The Fletcher Forum of World Affairs, Vol.26, No.2, Summer/Fall 2002, pp. 7-20
- Tolbert, David: Reflections on the ICTY Registry, Journal of International Criminal Justice, Vol.2, No.2, 2004, pp.480-485
- Vierucci, L.: The First Steps of the International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law, 1995, pp. 134-143.
- Warbrick, C. and McGoldrick, D.: Co-operation with the International Criminal Tribunal for the Former Yugoslavia, International and Comparative Law Quarterly, 1996, pp. 947-953.
See also
External links
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