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International Criminal Tribunal for the former Yugoslavia

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Image:ICTY 2006-01-16.jpg 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 (ICTY), is a body of the United Nations (UN) established to prosecute war crimes in the former Yugoslavia. The tribunal functions as an ad-hoc court and is located in The Hague.

It was established by Resolution 827 of the UN Security Council, which was passed on May 25, 1993. It has jurisdiction over certain types 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. It aims to complete all trials by the end of 2008 and all appeals by 2010.

Contents

[edit] Organization

The Tribunal employs some 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 (which also functions as the Appeals Chamber for the ICTR); the Presiding Judge of the Appeals Chamber is also the President of the Tribunal as a whole. Currently, this is Fausto Pocar (Italy; since 2005). His predecessors were Antonio Cassese (Italy; 1993-1997), Gabrielle Kirk-McDonald (USA; 1997-1999) and Claude Jorda (France; 1999-2002), Theodor Meron (USA; 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 (Netherlands; since 2000). His predecessor was Dorothée de Sampayo Garrido-Nijgh (Netherlands; 1995-2000).

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, (Switzerland) who until 2003, simultaneously served as the Prosecutor of the International Criminal Tribunal of Rwanda (ICTR); Where she led the OTP since 1999). Previous Prosecutors have been Ramón Escovar-Salom (Venezuela; 1993-1994), Richard Goldstone (South Africa; 1994-1996), and Louise Arbour (Canada; 1996-1999).

[edit] Judges

As of 2005, the International Criminal Tribunal for the former Yugoslavia's Appeals Chamber is integrated by:

The Trial Chambers are integrated by:

According to UN resolutions, the ICTY also has nine ad litem Judges:

The absolute majority of the judges comes from NATO countries; one judge comes from the Eastern European legal system, and none from Slavic-Orthodox-predominant countries like Serbia and their traditional international ally, Russia.

[edit] Accomplishments of the Court

In 2004, the ICTY published a list of five successes which it claimed it had accomplished:

1. "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;

2. "Establishing the facts", highlighting the extensive evidence-gathering and lengthy findings of fact that Tribunal judgments produced;

3. "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;

4. "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;

5. "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. .

[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 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.
  • Many 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 in effect makes no distinction between the Bosnian, Croatian and Serbian languages, issuing documents in what it terms "B/C/S" ("Bosnian/Croatian/Serbian") with no regard to differences between the three; see Serbo-Croatian language. Supporters of this approach respond that since all three forms are mutually intelligible to a high degree (and indeed were officially considered to be single language before the breakup of the former Yugoslavia) separate translations are not needed. However, despite the fact that most of the indictees are Serbs, the tribunal exclusively uses translators who speak Bosnian and Croatian languages. Some of the indictees have filed complaints about not being able to fully understand the translations.
  • 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.

The Tribunal is funded by approved appropriations made by the Fifth Committee of the General Assembly. NATO countries contribute to the budget as they are members of the UN and hence they get assesed for it as approved. However, a significant portion of the budget is voluntary funding. Voluntary funding comes from the EU, Most industrialised states, Japan, Russia and others. The UN General Assembly publishes the Tribunal's annual budget and Audited Financial Statements.

In December 2003, Wesley Clark testified behind closed doors during Slobodan Milošević's trial. In the 1990s, Clark had spoken with Milošević for more than 100 hours in his role as the head of the U.S. military team during the Dayton Agreement negotiations and as NATO's Supreme Allied Commander in Europe.

Critics of the court unfamiliar with legal procedure have claimed that Slobodan Milošević's inability to cross-examine Clark on the NATO military involvement in Yugoslavia is evidence of legal fault or hypocrisy. Milošević later called Clark as his own witness to question him on this subject. Courts of nations with efficient legal and judiciary systems regularly limit cross-examination to those subjects raised in the initial examination.

  • 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: courts's verdicts do not succeed in writing a 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's public opinions, particularly Serbs's and Croat's, as well as their dominant intellectual elites's (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 others'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

Main article: List of ICTY indictees

As of March 16, 2006, the ICTY had indicted 161 persons. Only six of these remained "at large". The cases against 85 of the indicted had been concluded: 43 were found guilty, 8 acquitted, 25 had their indictments withdrawn, and six had died - 3 of these in custody, 3 while on parole. Four cases had been sent to national courts for trial. 15 of those convicted had completed their sentences and been released by March 2006.[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.

[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. There are 4 floors of 12 cells each. The indicted are housed in private cells which have a toilet, shower, radio, satelite 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] See also

[edit] External links


International criminal law
Sources of law:
Charter of the IMT - Crime against international law - Crime against humanity - Crime against peace
Crime of apartheid - Crime of genocide - Customary law - Laws of war - Nuremberg Principles
Peremptory norm - Rome Statute - Universal jurisdiction - War crime - War of aggression
Courts:
War responsibility trials in Finland - International Military Tribunal for Europe
International Military Tribunal for the Far East - Khabarovsk War Crime Trials
Tribunal for the former Yugoslavia - Tribunal for Rwanda - Court for Sierra Leone
International Criminal Court
History:
List of war crimes

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