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. The tribunal is an ad-hoc court and is located in The Hague in 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 tribunals are also based in The Hague, but have a permanent status and different jurisdictions.
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[edit] Organization
The Tribunal employs around 1,200 staff. Its main 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 Pesident 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 (from 1993–1997), Gabrielle Kirk-McDonald of the United States (from 1997–1999), Claude Jorda of France (from 1999–2002), Theodor Meron of the United States (from 2002–2005).
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 2000). His predecessors were Dorothée de Sampayo Garrido-Nijgh of the Netherlands (frin 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, 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. Previous Prosecutors have been Ramón Escovar-Salom of Venezuela (from 1993–1994), Richard Goldstone of South Africa (from 1994–1996) and Louise Arbour of Canada (from 1996–1999).
[edit] Judges
Current judges (as of March 1 2007):
President:
Fausto Pocar (Italy)
Vice-President:
Kevin Parker (Australia)
Presiding Judges:
Patrick Lipton Robinson (Jamaica)
Carmel A. Agius (Malta)
Alphonsus Martinus Maria Orie (Netherlands)
Judges:
Mohamed Shahabuddeen (Guyana)
Mehmet Güney (Turkey)
Liu Daqun (China)
Andresia Vaz (Senegal)
Theodor Meron (United States of America)
Wolfgang Schomburg (Germany)
O-Gon Kwon (South Korea)
Jean-Claude Antonetti (France)
Iain Bonomy (United Kingdom)
Christine Van Den Wyngaert (Belgium)
Bakone Justice Moloto (South Africa)
Ad Litem Judges:
Krister Thelin (Sweden)
Janet M. Nosworthy (Jamaica)
Frank Hoepfel (Austria)
Árpád Prandler (Hungary)
Stefan Trechsel (Switzerland)
Antoine Kesia-Mbe Mindua (Democratic Republic of Congo)
Ali Nawaz Chowhan (Pakistan)
Tsvetana Kamenova (Bulgaria)
Kimberly Prost (Canada)
Ole Bjørn Støle (Norway)
Frederik Harhoff (Denmark)
List of judges provided on Organs of the Tribunal at: http://www.un.org/icty/glance-e/index.htm
[edit] Accomplishments of the Court
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 Yugsolavia 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] Criticisms of the Court
Some of the criticisms levelled against the court include:
- It was established by the UN Security Council instead of the UN General Assembly. Milošević'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. It was established on the basis of the Chapter VII of the UN Charter; 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 Memorandum issued by Austrian Professor Hans Köchler, which was submitted to the President of the Security Council in 1999.
- An apparently disproportionately large number (~3/4) of indictees are Serbs (to the extent that a sizeable portion of the Bosnian Serb and Serbian political and military leaderships have been indicted), whereas there have been very few indictments resulting from crimes committed against Serbs (many Croat indictees were charged with crimes committed against Bosnian Muslims); furthermore, Serbian indictees are of higher rank than those of other nations and face with broader accusations. Defenders of the Tribunal respond 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 wider and more organised scale; furthermore, the Serb command structure facilitated the identification of those with command responsibility for war crimes. However, this fails to explain why a number of specific crimes committed against Serbs are not prosecuted.
- Six of the 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.
- 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.
- The Tribunal has not prosecuted the citizens of any NATO countries as a result of NATO's involvement in the Kosovo conflict. 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.
- 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 Serbs's and Croats's opinions on the court are almost always exactly the opposite with regard to the cases that involve both parties). On the other hand, Kosovo Albanians and Bosnian Muslims have frequently expressed their high regard for the court and the trust in its impartiality.
- 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 (USD). 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.
- In the political analysts milieu one can frequently encounter the following thesis: court verdicts do not succeed in writing history. Historians have observed that trials like the Nuremberg trials or the Tokyo processes did not affect German and Japanese populaces, respectively, in the wished-for way: they resulted in national homogenization and helped form a uniform, self-defensive opinion which treated these judicial processes as show trials or a weapon of revenge wielded by occupying forces. Only after more than two decades and the onset of economic prosperity did German general public come to agree with the many-but not all- points encountered in the Nuremberg trials indicements; on the other hand, frequent Sino-Japanese and Korean-Japanese diplomatic clashes about the veracity of Japanese history textbooks testify that Japanese public opinion have not, generally, accepted the interpretation of the WW2 history prevalent in the US, the EU and the neighboring countries, most importantly Korea and China. Criticism along these lines has been voiced with regard to the ICTY. The involved nations' public opinions, particularly those of Serbs and Croats, as well as of their dominant intellectual elites (especially with regard to historiography, political, economic and sociological analyses; also, political journalism, geopolitical analyses and military history), do not seem to be willing to accept or agree with the theses of the Hague court that, in their respective views, pretend to pass the final verdict on the turbulent periods of their national histories. Overviews of Croatian and Serbian history books and best-selling political journalism, as well as opinion polls, show the predictable course of events has occurred: peoples, as a rule, do not accept other's assessment of their national histories, especially if these evaluations are seen as being predominantly politically motivated. Since the majority of Serbs and Croats, a minority of Bosnians and Albanians, and a sizeable part of international community legal experts consider the ICTY to be a political court and the puppet of Anglo-American geopolitical interests- the possibility that the ICTY's verdicts will be, in a foreseeable future, regarded as impartial by the recently warring sides it has been founded to deal with is- virtually nil.
[edit] Indictees
(As of 13 March 2007)
Since the very first hearing (referral request in the Tadić 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).
Proceedings are on-going with regard to 61 accused: 13 are at the appeals stage, two are awaiting judgement by a Trial Chamber, 26 are currently on trial, 14 are at pre-trial and six are still at large.
The figure of the accused at the appeals stage includes 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.[1]
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[2] Other "high level" indictees included Milan Babić, Croatian Serb prime minister of Republika Srpska Krajina; Ramush Haradinaj, Albanian prime minister of Kosovo; Radovan Karadžić, Montenegrin former President of Republika Srpska; and Ratko Mladić, Bosnian Serb army commander.
Haradinaj's trial begins at The Hague on March 5, 2007[3]
[edit] Detention Facilities
Those defendants on trial and those who were denied a provisional release are detained at a prison facility in Scheveningen, located some 4 km 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.
[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.
- 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.
- 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.
- 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.
[edit] References
[edit] See also
- Command responsibility
- International Criminal Court
- International Criminal Tribunal for Rwanda
- State Court of Bosnia and Herzegovina
[edit] External links
- Official website of ICTY
- International Progress Organization: Monitoring of the ICTY
- Topical digests of the case law of ICTR and ICTY, Human Rights Watch, 2004
- Why Journalists Should be Worried by the Rwanda Tribunal Precedents (deals also with ICTY) by Thierry Cruvellier for Reporters Without Borders
