Legacy of the ICTY

By Ajla Škrbić

Introduction

The International Court is the judicial body that brings to justice individuals accused of violation of the international law. The idea to create the court arose after the end of the World War II and it is based on the principle: all persons, including high-ranking state officials, accused of committing serious international crimes must be punished.

International criminal tribunals should not be considered in the same way as domestic or national courts. When people hear the words “court” and “law” – they immediately think it refers to national law, but they are wrong. There is distinction even between personnel that works in international and national courts, and much less in other characteristics.

The paper will put a special emphasis to the work of the ICTY, describing a number of positive as well as the negative sides of the Court.

The ICTY

The ICTY[1] has been established at the proposal of the UN Secretary General on the basis of Resolution No. 827 of the UN Security Council of 25 May 1993. The territorial jurisdiction of the Court covers the territory of the former Socialist Federal Republic of Yugoslavia (hereinafter: the former Yugoslavia), including its land surface, airspace and territorial waters, while the temporal jurisdiction includes the period from 1 January 1991, without indicating when the temporal jurisdiction ends.[2] However, the UN Security Council ordered to the Court to end its work by 2010, by Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due to the abovementioned reasons, the Court was supposed to put an end to all investigations and filing all indictments by 2004; to end all trials by 2008 and to end all appeal proceeding by 2010. However, the year is 2015 and the ICTY has not ended its work. According to some estimations given in December 2014, three out of four appeal proceedings are expected to be completed during 2015, while the judgment in the case of Ratko Mladic is expected to be rendered in March 2017 or event after this date. However, addressing the UN Security Council on 10 December 2014, President of the ICTY Theodor Meron assured that these forecasts do not mean closure of the ICTY in 2017.[3]

The ICTY is an ad hoc court based in The Hague. The Court can prosecute only individuals and not organizations or governments. The court can impose life imprisonment as maximum penalty. As a result, the Court signed an agreement with a number of countries, in order to enable enforcement of the penalties on their territories.

Huge role of the ICTY’s Trial Chamber significantly determines work of the ICTY and it implies wide powers of arbitrators and initiative relating to probative evidence.[4] The basic principles that the Court follows in its work are: justice, rapidity and equality of arms.[5]

The aim of establishment of the ICTY is to bring to justice persons responsible for serious violations of the international humanitarian law during conflict in the area of the former Yugoslavia.[6] However, “although it was obvious that many actions of the conflicting sides, people who fought within their ranks or who joined them, represent serious crimes under domestic law or the international humanitarian law (the former Yugoslavia ratified all the Geneva Conventions of 1949 and their Protocols of 1977), almost none of the suspects for these crimes was charged and brought to the Court until 1993”.[7]

All violations that are put under the jurisdiction of the ICTY and which represent violation of the international humanitarian law committed in the former Yugoslavia, are divided into:

• Grave breaches of the Geneva Conventions of 1949;
• Violations of the laws or customs of war;
• Genocide;
• Crimes against humanity.[8]

The criminal defense of crime against humanity exists under the following conditions:

• In case of an attack;
• If the accused committed the crime as part of the attack;
• If the attack was directed against any civilian population;

• If the attack was widespread or systematic;
• If the accused knows that his acts are part of a pattern of widespread or systematic crimes directed against a civilian population and if he knows that his act fit in the pattern.[9]

Regardless of the rules that regulate work of the ICTY, its employees are faced with several challenges.

The first challenge certainly refers to a rule that an individual may be punished for grave breach of the Geneva Conventions under the Article 2 of the Statute, only if the crime for which he is charged, was committed against persons and property that are considered protected.[10]

Another challenge is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4 Paragraph 3 of the Statute. Namely, when the Court finds that the accused person had no genocidal intent, but he or she helped others to commit genocide, the question is which of these two provisions of the Statute of the Court should be applied. The first Article envisages responsibility for assisting in committing any criminal offense put under the jurisdiction of the Court, while the second Article envisages, inter alia, complicity in genocide.[11] Furthermore, the Court has the jurisdiction to act in case of committing any of the criminal offenses listed in Article 5 of the Statute, but only if the crimes were committed in an armed conflict. Therefore, an armed conflict is a precondition for prosecution before the ICTY. At the same time, the only Article of the Statute that relates to penalties is the Article 24 that envisages the obligation of the Chamber when sentencing, to take into account gravity of the defense and individual circumstances of the perpetrator. However, the Article 2 of the Statute represents the biggest challenge and it envisages that every crime regulated by this Article, shall be committed in the context of the international armed conflict.

The first trial before the ICTY started on 7 May 1996 and the first verdict was rendered on 29 November 1996. So far, a total of 161 persons have been indicted. Proceedings against 147 persons ended, while proceedings against 14 persons are still ongoing.[12]

Legacy of the ICTY

The region of the former Yugoslavia welcomed the establishment of the ICTY with great suspicion, complaining that incompetent body has established the Tribunal (the Security Council), and that the Court cannot be an impartial judicial body, since it has been established as a subsidiary body to the executive authority (the Security Council)[13]. However, author of this paper shares the standpoint of Dr. Vojin Dimitrijevic, who says that „in a sea of ​​such attacks (…) legitimate and legal reviews of critics about the way The Tribunal has been established, the advisability of some of the provisions of its Statute, the quality of the rules of procedure and so on, are lost (…)“.[14] The author also shares Dimitrijevic’ stance that work and existence of the ICTY should be seen as a “unique judicial experience in the actual application of the international humanitarian law, its written and unwritten rules and the very Statute of the first international criminal Tribunal that, despite of the fact that it has been formed on temporary basis as an ad hoc court, has acted so long and prosecuted so many persons on various posts for so many crimes that are considered international crimes”.[15]

There is no doubt that there are positive and negative aspects of the international criminal proceedings led before all courts.[16] Positive sides of the proceedings before the ICTY are certainly higher level of impartiality, easier ways to collect evidence, uniformity in the application of the international law and greater preventive effect of international trials.[17] Namely, it is logical that people who are not involved in a concrete dispute, i.e. judges who are not related to armed conflicts will be more objective to decide about the dispute. National courts are almost always insufficiently objective, and these courts are not interested enough to lead proceedings against its own nationals who have committed crimes against foreign nationals. At the same time, the fact that this is a proceeding led before an international court, proceedings related to these and all other conflicts in the international community are set to be uniform, with the continuity in application of law and decision-making process.

Although a proceeding before the ICTY does not fully meet all demands which the right to fair trial puts before the Court, its practice gives hope that the proceedings will get closer to the standards of the fair trial.[18] The procedure led before the ICTY is complex, but it was inevitable because it has been established quickly as a reaction to the situation on the ground (for example, the states harmonized their stances about formation of the International Criminal Court for years). Principles like the ones from the Geneva Conventions of 1949 (ratified by most of the states in the world) would certainly remain only a dead letter, if it was no courts like the ICTY. Namely, such courts defined an armed conflict, defined when an armed conflict begins etc.

One of the important specifics that refer to international crimes is the existence of a large number of victims. The procedural status of victims and witnesses in criminal proceedings for these crimes is a particular problem in international judiciary, because of direct or indirect risk of intimidation, reprisal or retaliation against the victims.[19] For these reasons, rules of the ICTY include adequate provisions on protection of victims and witnesses in the proceedings. Per example, such provisions are stipulated in the rule that the main hearing will be held without the presence of the public; the rule about the protection of identity of the victims, and the rule on formation of Department for Victims and Witnesses, as the body in charge to provide support and advices to victims and witnesses and propose measure for their protection.

The ICTY has contributed to clarification of some basic concepts that are of huge importance for the international criminal law and the international humanitarian law. For example, the rule on the obligation to distinguish civilians from combatants was clarified in the judgment in the cases of Tadic, Martic, and Kupreskic, while the rule to distinguish civilian from military facilities was clarified in the judgment in cases of Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and Furundzija defined torture, etc. For the first time in the history, an international court found that rape (although prohibited by humanitarian law) may constitute torture. This is also the first international court which included sexual violence as a crime against humanity in its Statute.[20] Besides, the Court also gave huge contribution to the interpretation of serious violations of the Geneva Conventions.[21]

According to the current President of the ICTY Theodor Meron, the ICTY has demonstrated to the world that, after half a century of impunity, it is possible to lead complex trials at the international level, in accordance with the highest international standards. The ICTY has developed an influential body of jurisprudence concerning a large number of procedural issues and issues related to evidence and thus, created conditions for establishment of new international and mixed criminal courts. The support to strengthening of national judicial systems relating to war crimes trials is certainly one of the most positive things in the heritage of the ICTY.[22]

Many criticize the ICTY for the reason that all the accused have not been convicted especially the ones who are accused of the crime of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 stipulates very strict conditions for proving genocide. The Genocide[23] is a crime that does not have to be committed during armed conflicts: the crime can be committed in peacetime, during a war, against civilians and against combatants, with or without committing widespread or systematic attack. Under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “(… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”[24]

As the aforementioned definition reads, it is a state of mind of the perpetrator of the crime of genocide that matters (that he committed the crime with intention to destroy, in whole or in part, a national, ethnical, racial or religious group). Therefore, certain group and not individuals in the group should be the main objective and likewise, the destruction should be physical or biological nature, not cultural.[25] Proving responsibility for the crime of genocide is harder than proving responsibility for any other international crime. Murders and other prohibited acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group (dolus specialis). If a prosecutor fails to prove that intention, it is considered a crime against humanity or a war crime – and the ICTY is not authorized to prosecute these crimes.

The latest criticisms directed against work of the ICTY are addressed to the President Theodor Meron, an experienced US (Israeli) lawyer and a judge. Many believe that he made terrible mistakes in individual trials which he chaired, especially in the cases of Gotovina and Markac, Stanisic and Simatovic and in a particularly interesting case from the legal point of few – case of Momcilo Perisic. The judgment in the case of Momcilo Perisic has established a new legal standard of command responsibility, providing amnesty to political leaders and military commanders in case of committing war crimes in the future period. Namely, the appeal judgment to Perisic has adopted the new specific direction criterion which has not existed in the international customary law. The question is whether court judgments discourage future threats against human civilization or the opposite? The UN Security Council has established the ICTY after some people endangered peace and security of the civilization[26] and nowadays, some experts believe that the ICTY turned into its contradiction after Perisic’s acquittal, and its decisions jeopardize international peace, security and order.[27]

When it comes to criticisms related to the impact of the Hague judgments to victims of the conflict, we must take into account that, when it comes to individual criminal responsibility, the ICTY is authorized to prosecute the crimes, but it has no option to adjudicate adequate compensation for victims of the crimes.[28] Namely, primary role of the ICTY is retributive: the Court renders a judgment and defines whether someone is guilty for a certain crime or not, and orders an appropriate penalty for the crime.[29] Of course, the ICTY also has a restorative function and it aims to ensure accountability, establish facts, bring justice for the victims and give them the right to speak, enhance the rule of law and pawing a way for reconciliation in the region. However, the ICTY is not established to be a mean for bringing complete justice to the victims and a mean to deal with the past.

Regardless of the aforementioned facts, the ICTY has taken away from us the ability to forget the past. The legacy of the ICTY is greater and more significant than occasional mistakes and judgments rendered without a legal explanation, while the Court will provide insight to future generations into judgments and facts about the atrocities.[30]

Conclusion

The abovementioned text has led us to conclusion that, when it has established the ICTY, the international community has directly contributed to sanctioning of state policies and individuals responsible for initiation and conduct of armed conflicts at the territory of the former Yugoslavia. The paper also led us to conclusion that judgments rendered by the ICTY have clarified some theoretical parts of the international humanitarian law, international criminal law and the international human rights law.

Despite of many criticisms directed against the ICTY, the author of the paper believes that the ICTY has registered more positive than negative results. Unreasonably high expectations from work of the Court have been huge. At the end, when a conflict starts and when crimes happen, people say nowadays: “Send him to The Hague”, which was not the case a few years ago, when there was no court authorized to prosecute the perpetrators.

There is no doubt that existence of such a court is necessary and we could see it clearly in the case of Leipzig in 1921, when Germans were allowed to trial to themselves on their own. As a result, audience, judges, prosecutors greeted some people who were accused of crimes when they entered a courtroom, not to mention that all sanctions were minimal; two months, six months and four years of imprisonment. Therefore, author of the paper believes that foreign judges did not bring expertise in proceedings related to this territory, but impartiality.

Author of the paper considers the following facts as the greatest contributions of the ICTY:

• The ICTY is a legal body that represents a basis for establishment of new judicial bodies;
• The ICTY revealed limitations of trials;
• The ICTY has left us legacy.

On the other hand, the fact that the ICTY has primarily focused on jurisprudence and its impact, without realizing how much it is important to reach out to the victims, is the main deficiency of this body.

Notes:

1. Full name of the ICTY is 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.
2. The Article 8 of the Statute of The ICTY of 1991
3. B. Krivokapic, Encyclopedic Dictionary of the International Law and International Relations, The Official Gazette, Belgrade 2010, pg. 557. See also: The ICTY, http://www.icty.org/sid/10016 (17 September 2015)
4. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008, pg. 198
5. Ibid., pg. 199, fn. 1223
6. The Resolution of the UN Security Council, No. S / RES / 827 (1993), adopted at the 3217^th session on 25 May 1993 and the Report of the UN Secretary-General, S / 257074, of 3 May 1993, Paragraphs 19-20
7. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008., XIII (translation made by the author of this article)
8. The Article 2-5 of the ICTY Statute of 1991
9. General elements of the crimes against humanity are envisaged in the Article 5 of the ICTY Statute and elaborated in details before the ICTY in the case ‘Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic’, No. IT-96-23 and 23/1, 22 February 2001, Paragraph 410
10. The second-instance judgment in the ‘Tadic’ case, of 15 July 1999, Paragraph 80
11. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008, pg. 77
12. The ICTY, http://www.icty.org/sections/TheCases/KeyFiguresoftheCases (17 September 2015). The website of the ICTY contains far more comprehensive content thatn websites of national and most other international courts.  
13. B. Krivokapic, Encyclopedic Dictionary of International Law and International Relations, Official Gazette, Belgrade, 2010, pg. 557
14. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008, XIV (translation made by the author of this article)
15. Ibid.
16. Every international criminal tribunal has its positive and negative sides. However, practice has shown that each of them acts preventively, no matter how little positive sides the court achieves. Per example, even the International Criminal Court, which is the most criticized of all courts, is believed to have had preventive impact in the Congo in terms of reducing the number of recruitment of children in Army, in terms of the number of rapes and so on.
17. A. Cassese, The International Criminal Law, Belgrade Center for Human Rights, Belgrade 2005, pg. 520-521
18. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008, pg. 226
19. Ibid., pg. 195-196
20. The case of Kunarac is the first case in the history that deals exclusively with sexual harassment, and the first case which defined sexual enslavement. However, there are lawyers who believe that the definition is correct, while others believe that the definition given in the case of Akayese is more relevant (The case before the International Criminal Tribunal for Rwanda of 2 September 1998). The case of Biljana Plavsic is the only case before the ICTY so far, in which a woman has been accused of sexual violence.
21. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008, XV
22. Daily newspaper in BiH ‘Dnevni Avaz’, XX, No. 6955, 19 December 2014, pg. 5
23. The word ‘genocide’ comes from Greek word ‘genos’ which means tribe or race, and Latin word ‘caedere’ which means killing.
24. The Article 2 of the Convention on Genocide of 1946. The following documents define genocide in a similar way: The Article 6 of the Rome Statue of the International Criminal Court of 1998; the Article 4Paragraph 2 of the Statute of the ICTY, the Article 2 Paragraph 2 of the Statute of the International Criminal Tribunal for Rwanda, the Article 171 of the Criminal Code of B&H (The Official Gazette of B&H, No. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 08/10, 47/14, 22/15, 40/15) and the Article 141 of the Criminal Code of the former Yugoslavia (The Official Gazette of SFRY, No. 44/76, 36/77, 56/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90).
25. This is the standpoint of the Convention on Genocide of 1948 and the ICTY. However, judge Shahabuddeen partially accepted the principle of the cultural destruction in the appeal procedure in the case Prosecutor v. Radislav Krstic, No.: IT-98-33, of 2 August 2001. Within the same case, the ICTY Trial Chamber’s judgment found that Bosnian Muslims constituted a protected group. Part of the group was constituted of Bosnian Muslims from Srebrenica and physical destruction of the group was directed against the able-bodied men from Srebrenica. Krstic defense argued in the appeal that the physical destruction of able-bodied men in Srebrenica does not represent destruction of part of the group, but the ICTY Appeals Chamber ruled that killing them is a proof that there was an intention to kill all Muslims in Srebrenica (Case Prosecutor v. Radislav Krstic, No.: IT-98-33, of 2 August 2001).
26. The Resolution of the UN Security Council, No. S / RES / 827 (1993), adopted at the 3217^th session on 25 May 1993 and the Report of the UN Secretary-General, S / 257074, of 3 May 1993, Paragraphs 19-20
27. The International Institute for Middle East and Balkan Studies (IFIMES), ICTY: ‘Meronization’ of our future, Ljubljana, 20 March 2013
28. Vecernji List, http://www.vecernji.hr/svijet/javnost-je-obmanuta-haaskim-tuzbama-828733 (17 September 2015)
29. The Article 24 of the ICTY Statute
30. Pescanik, http://pescanik.net/sada-sam-druga-osoba/ (18 September 2015)

References

1. A. Cassese, The International Criminal Law, Belgrade Center for Human Rights, Belgrade 2005
2. B. Ivanisevic et al., Guide through The Hague Tribunal – Regulations and Practice, 3^rd Edition, The OSCE Mission to Serbia, Belgrade, 2008
3. B. Krivokapic, Encyclopedic Dictionary of International Law and International Relations, Official Gazette, Belgrade, 2010
4. Daily newspaper in BiH „Dnevni Avaz“, XX, No. 6955, 19 December 2014
5. The second-instance judgment in the Tadic case, of 15 July 1999
6. The ICTY, http://www.icty.org/
7. Report of the UN Secretary-General, S / 257074, of 3 May 1993
8. The Convention on the Prevention and Punishment of the Crime of Genocide of 1948
9. The Criminal Code of BiH (The Official Gazette of BiH, No. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 08/10, 47/14, 22/15, 40/15)
10. The Criminal Code of the former Yugoslavia (The Official Gazette of the former Yugoslavia, No. 44/76, 36/77, 56/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90)
11. The International Institute for Middle East and Balkan Studies (IFIMES), ICTY: ‘Meronization’ of our future, Ljubljana, 20 March 2013
12. Pescanik, http://pescanik.net/sada-sam-druga-osoba/
13. The case of the International Criminal Tribunal for Rwanda ‘Prosecutor v. Jean-Paul Akayesu’, Case No. 96-4-T, of 2 September  1998
14. The Resolution of the UN Security Council, No. S / RES / 827 (1993), adopted at the 3217^th session on 25 May 1993
15. The Statute of the ICTY of 1991
16. The ICTY case ‘Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic’, No. IT-96-23 and 23/1, from 22 February 2001
17. The ICTY case ‘Prosecutor v. Radislav Krstic’, No. IT-98-33, of 2 August 2001
18. Vecernji List, http://www.vecernji.hr/svijet/javnost-je-obmanuta-haaskim-tuzbama-828733