International Tribunal Spotlight
 |
The International Criminal Tribunal for the Former Yugoslavia
By: Taylor G. Stout, Reporter, International Judicial Monitor
The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first war crimes tribunal created by the United Nations and the first tribunal of its type since the war crimes tribunals organized in Nuremberg and Tokyo following World War II. The United Nations Security Council established the ICTY in May 1993 to try individuals accused of committing genocide, war crimes, and crimes against humanity in the territory of the former Yugoslavia.
History
Instability following the collapse of the communist regime in Yugoslavia in the early 1990s led to war between rival groups resulting from political and ethnic differences. These groups sought to assert autonomy and control over certain areas of the territory. Innocent civilians suffered horrific violence at the hands of soldiers and police. Some of the warring factions instituted a policy of ethnic cleansing, resulting in the death of over 250,000 civilians and the displacement of over one million. The violence included systematic deportations, mass executions, mass sexual assaults, and confinement in concentration camps.
The atrocities sparked outrage across the world. In response, in October 1992, the UN Security Council asked the UN Secretary-General to establish a Commission of Experts to investigate potential breaches of international humanitarian law in the former Yugoslavia. The evidence of crimes against humanity unearthed by the Commission led to widespread public outcry for intervention in the situation, including calls for the creation of a tribunal similar to the one at Nuremberg. In February 1993, the Security Council asked UN Secretary-General Boutros Boutros Ghali to take steps to create a tribunal to try the war criminals from the conflict. The Secretary-General reported back in sixty days with the Statute of the ICTY. Finally, in May 1993 the UN Security Council passed Resolution 827 pursuant to its power under Chapter VII of the UN Charter, adopting the Statute of the ICTY without change. Resolution 827 established the ICTY, giving it the purpose of trying individuals responsible for committing grave violations of international humanitarian law. The ICTY hopes to deter future crimes and to administer justice so that the peoples of the region may coexist in peace.
Structure
The ICTY sits in The Hague, Netherlands. It is comprised of three organs: (1) the Chambers, (2) the Office of the Prosecutor, and (3) the Registry. The Chambers is made up of sixteen judges, divided into three Trial Chambers and an Appeals Chamber. In addition, the ICTY may call on up to nine ad litem (temporary) judges drawn from a set pool of candidates. The UN General Assembly elects the judges to four-year terms of service, and only permanent judges may be reelected. Moreover, no two permanent judges, and no two ad litem judges may be from the same country. Cases are normally heard by three-judge “sections.” The ICTY has a President and a Vice-President. The President assigns judges to cases, presides over the Appeals Chamber, conducts plenary meetings of the ICTY, supervises the Registry, and performs diplomatic and political functions for the tribunal. The Vice-President carries out the President’s duties in the event that the President is unable to do so. Both the President and the Vice-President are elected to two-year terms by a majority vote of the permanent judges. The current members of the tribunal are: President Patrick L. Robinson (Jamaica); Vice-President O-Gon Kwon (South Korea); Carmel A. Agius (Malta); Jean-Claude Antonetti (France); Christoph Flugge (Germany); Mehmet Guney (Turkey); Burton Hall (Bahamas); Liu Daqun (China); Guy Delvoie (Belgium); Theodor Meron (Poland); Bakone Justice Moloto (South Africa); Howard Morrison (United Kingdom); Alphons M. M. Orie (Netherlands); Kevin Parker (Australia); Fausto Pocar (Italy); Andresia Vaz (Senegal).
The Office of the Prosecutor investigates crimes, gathers evidence, prepares indictments, and presents the prosecution’s case to the tribunal. Although the UN Security Council created the ICTY, the Office of the Prosecutor is independent of the Security Council and may initiate investigations on its own or on the basis of information provided by any state or organization. But it operates wholly independent of any nation or other organization.
Although defendants have the right to representation, there is no corresponding office of defense counsel. Defendants may hire their own counsel or accept the assignment of an attorney from a list maintained by the Registry. In September 2002, defense attorneys organized the Association of Defence Counsel practicing before the ICTY (ADC-ICTY). The ADC-ICTY is an organization completely independent of the ICTY.
The Registry is the administrative organ of the ICTY. In addition to providing basic administrative support, it operates a support program for witness and victims, oversees the detention unit, and maintains a list of defense counsel that may be assigned to defendants upon request.
Jurisdiction
The goal of the ICTY is to bring to justice those guilty of serious violations of international humanitarian law committed in the former Yugoslavia since 1991. By doing so, the ICTY hopes to restore a lasting peace to the region. The ICTY possesses jurisdiction over individual people. It does not have jurisdiction to prosecute military units, political parties, nongovernmental organizations, or other entities. The ICTY has the authority to prosecute four crimes: (1) grave breaches of the 1949 Geneva Conventions, (2) war crimes, (3) genocide, and (4) crimes against humanity. The jurisdiction to prosecute these crimes extends geographically throughout the territory of the former Yugoslavia, which includes present-day Bosnia and Herzegovina, Serbia and Montenegro, Croatia, Kosovo, Macedonia, and Slovenia. The jurisdiction of the ICTY runs temporally from January 1, 1991 through the present, until peace is secured and full judicial responsibility may be handed over to the relevant national court systems.
The ICTY shares concurrent jurisdiction over the four crimes enumerated in the ICTY statute with the national courts of the countries affected. But the jurisdiction of the ICTY is superior to that of the national courts, and the ICTY may take over investigations and prosecutions from the national justice systems if doing so serves the interests of international justice. In addition, the ICTY may refer cases to national authorities. Defendants tried in the ICTY may not be retried on the same charges in a domestic national court, but defendants tried by national courts may be retried in the ICTY if the domestic trial is not deemed independent and impartial or where the crimes charged in the domestic court are different from the crimes within the jurisdiction of the ICTY.
Accomplishments
The ICTY has charged over one hundred sixty defendants, including heads of state, prime ministers, military chiefs-of-staff, and many other high-level and mid-level political and military leaders. It has tried defendants responsible for crimes committed against various ethnic groups in Bosnia and Herzegovina, Croatia, Serbia, Kosovo, and Macedonia. Over sixty individuals have been convicted. The tribunal has made precedent-setting decisions in cases involving war crimes, genocide, and crimes against humanity, further developing and defining these areas of international humanitarian law. The tribunal has become a model for post-conflict reconciliation and development, paving the way for the International Criminal Tribunal for Rwanda and other international criminal courts. The ICTY has provided a forum for victims to voice the horrors they experienced and has become a catalyst for maintaining peace in the region. Perhaps most importantly, the ICTY has individualized responsibility for the atrocities committed, rendering true justice possible in the eyes of the victimized societies. Those leaders who committed rapes and mass murders, or ordered them to be done, may not avoid accountability for their actions by hiding behind the mantle of “collective responsibility.”
The ICTY has not yet completed its mandate, but its work is beginning to wind down. It has instituted a “completion strategy” whereby it concentrates on prosecuting senior leadership while leaving prosecutions of lower-ranking officials to domestic courts. This plan will allow the tribunal to help maintain peace and stability in the region while strengthening the capacity of the domestic courts. Ultimately, the ICTY will hand off all prosecutions to the domestic courts of the nations of the region, leaving a self-sustaining justice system. Until that time, however, the ICTY remains the paradigmatic example of the international criminal tribunal and provides a model of justice that can be emulated in post-conflict zones around the world.
Sources:
http://www.icty.org/sections/AbouttheICTY
http://www.humanrightsfirst.org/cah/ij/w_context/w_cont_02.aspx
http://www.law.columbia.edu/library/Research_Guides/internat_law/icty
http://www.pict-pcti.org/courts/ICTY.html
International
Judicial Monitor