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 established to prosecute serious
crimes committed during the
wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in
The Hague, the
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 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. Various countries have signed agreements with the UN to carry out custodial sentences. The last indictment was issued 15 March 2004. The Tribunal aims to complete all trials by the middle of 2011 and all appeals by 2013, with the exception of
Radovan Karadžić whose trial is expected to end in 2012 and the appeal to be heard by February 2014.
[1] Ratko Mladić and
Goran Hadžić have been charged, however are still at large and thus do not fall within the court's completion strategy.
[2]
The International Criminal Tribunal for the former Yugoslavia 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.
[edit] History
The Court was originally proposed by German Foreign Minister
Klaus Kinkel.
[3] 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. However, the new international tribunal was viewed very skeptically. 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 it for the ICTY it would be even a bigger undertaking 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. In 1993, the ICTY built its internal infrastructure, in 1994 the first indictment was issued against the Bosnian-Serb concentration camp commander Dragan Nikolić and in 1995 the second indictment was issued against a group of 21 Bosnian-Serbs who were 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.
[4]
1993-1994: In the first year of its existence, the Tribunal laid the foundations for its existence as a judicial organ. The international court established the legal framework of the Tribunal s 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 was part of the United Nations and as it was the first
international court for
criminal justice, the development of a juridical infrastructure considered quite a challenge. However after the first year the first ICTY judges had drafted and adopted all the rules for court proceedings.
1994-1995: The ICTY completed a courtroom and detention facilities in Scheveningen in The Hague (The Netherlands). 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. The court confirmed 8 indictments against 46 individuals and issued arrest warrants. Duško Tadic´ became the subject of the Tribunal's first trial. The Bosnian-Serb Duško Tadić was arrested by German police in Munich in 1994 for his alleged actions in the Prijedor region in Bosnia-Herzegovina (especially his actions in the Omarska, Trnopolje and Keraterm detention camps). Tadic´ made his initial appearance before the ICTY Trial Chamber on 26 April 1995 and pleaded not guilty to all of the charges in the indictment.
1995-1996: 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 tribunals detention unit. In addition to Duško Tadic, by June of 1996 the tribunal had Tihofil Blaškic, Dražen Erdemovic, Zejnil Delalic, Zdravko Mucic, Esad Landžo and Hazim Delic in custody. The accused Erdemovic became the first person to enter a guilty plea before the tribunal's court. Between 1995 and 1996, the ICTY also dealt with miscellaneous cases involving several detainees - Djukic, Krsmanovic, Kremenovic, Lajic - which never reached the trial stage. Some of the accused had been arrested and others surrendered to the ICTY. However, most of the new states that came out of Yugoslavia - most notably Serbia and the Serbian entity in Bosnia-Hertzegovina - refused to cooperate with the international tribunal.
[edit] Organization
The Tribunal employs around 1,200 staff. Its organisational components are Chambers, Registry and the Office of the Prosecutor (OTP).
Lateral view of the building.
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
Patrick Lipton Robinson of
Jamaica (since 2008). 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),
Fausto Pocar of
Italy (2005-2008).
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 (since May 2009). His predecessors were
Hans Holthuis of the
Netherlands (2001–2009),
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), Eric Östberg of Sweden, 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.
[edit] 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 Lipton 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.
[5]
List of judges provided on Organs of the Tribunal at:
http://www.icty.org/sid/151
[edit] Detention facilities
A typical 15 m
2 single cell at the ICTY detention facilities.
Photograph provided courtesy of the ICTY. 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 (without Internet access) and other comforts. 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; Serbian and Bosnian Muslim detainees (once mortal enemies) now reportedly share friendly chess and backgammon games and watch film screenings. 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”.
[6]
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.
[7]
[edit] Activity
[edit] Accomplishments
In 2004, the ICTY published a list of five successes which it claimed it had accomplished:
[8]
- "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:
ICTY at a glance
[edit] Indictees
Since the very first hearing (referral request in the Tadić case) on 8 November, 1994, the Tribunal has indicted 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 Mladić and
Goran Hadžić, are still at large.
[9]
The accused currently at the appeals stage include Sefer Halilović, 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 Orić. These two accused have been sentenced and granted early release (Kubura) and release (Orić), but the OTP has appealed against the Trial Chamber's Judgements.
A further 19 individuals have also been the subject of contempt proceedings.
[10]
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.
[11] Other "high level" indictees included
Milan Babić, 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
[12] and the closing brief was given on 23 January 2008.
[13] 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 Mr. Haradinaj or at best inconclusive.
[14] But he also complained of witness intimidation, saying some witnesses had not testified because they had been afraid.
[15]
On 31 July 2008, Karadžić appeared in front of the judges of the tribunal.
On 21 July 2010, the cases of UÇK (
Kosovo Liberation Army) commanders
Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj were re-opened for re-trial.
[16]
[edit] Criticism
Criticisms levelled against the court include:
- Two key indictees are 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.
- Critics have questioned whether the Tribunal exacerbates tensions rather than promotes reconciliation,[citation needed] as is claimed by Tribunal supporters. Polls show a generally negative reaction to the Tribunal among the Serb and Croat public.[citation needed] 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).[citation needed] 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.[citation needed]
- 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 $303 million).[17] 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.
- Some three-quarters of indictees thus far have been Serbs (or Montenegrins),[citation needed] to the extent that a sizeable portion of the Bosnian Serb and Serbian political and military leaderships have been indicted, while there have been far fewer indictments resulting from crimes committed against Serbs.[citation needed] Critics of the tribunal have seen this as reflecting bias, while the tribunal's defenders have seen this as indicative of the actual proportion of crimes committed.[citation needed]
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, therefore it 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 that it is anti-democratic and a violation of national sovereignty.
[18]
[edit] See also
[edit] References
[edit] 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.
- Ivković, 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 Milošević 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.
- Pronk, E.: "The ICTY and the people from the former Yugoslavia. A reserved relationship." (thesis)
- 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.
- Wilson, Richard Ashby: ‘Judging History: the Historical Record of the International Criminal Tribunal for the Former Yugoslavia.’ Human Rights Quarterly. 2005. August. Vol. 27, No. 3, pp. 908-942.
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[edit] External links
- Official website of ICTY
- International Progress Organization: Monitoring of the ICTY
- Del Ponte, Carla (2003). 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 (deals also with ICTY) 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
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