Lessons and significance of the International Criminal Tribunal for the former Yugoslavia
The armed conflict based on ethnic and religious confrontation on the Balkan Peninsula resulted in a bloody war, which was accompanied by massive violations of the rights of the civilian population. The large territory of Yugoslavia became a focus of human suffering and the suffering of people of different nationalities.
The Socialist Federal Republic of Yugoslavia (SFRY) included six republics that united different ethnic and religious groups. After the death of President Josip Broz Tito in 1980, the economic crisis worsened. After the fall of the communist regime in 1990, nationalist parties came to power in various republics, which led to the declaration of their independence. President Slobodan Milosevic used nationalism to consolidate his power in Serbia and tried to maintain control over parts of the former Yugoslavia. Serbia used force and encouraged Serbs in Bosnia and Croatia to establish “republics”. This technique was applied by Putin in the Donetsk and Luhansk regions in 2014.
Armed conflicts in Croatia (1991-1995), Bosnia and Herzegovina (1992-1995) and Kosovo (1998-1999) led to a tragedy with more than 140 thousand people dead, more than 40 thousand missing and millions of displaced people in Europe.
This period in the history of Yugoslavia became the most violent conflict in Europe after the Second World War.
In September 1991, the United Nations called on the parties to the conflict to uphold international law because the conflict led to thousands of wounded and killed, as well as hundreds of thousands of forcibly displaced people.
Mass killings of civilians, rape and torture in the camps, suffering of hundreds of thousands of displaced people led to the creation of the UN Commission of Experts at the end of 1992.
The Commission’s report documented the crimes in detail and presented evidence of serious violations of the Geneva Conventions and other rules of international humanitarian law. These findings prompted the UN Security Council to establish an international tribunal to prosecute those responsible for these crimes, to stop the violence and ensure international peace and security.
On May 25, 1993, the UN Security Council adopted Resolution 827 on the official establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY).
The legal basis for the establishment of the ICTY was the provisions of Chapter VII of the UN Statute regarding the powers of the UN.
The founders of the ICTY also planned for the court to create an authentic description of history for future generations to avoid “dangerous misinterpretations and myths.”
The resolution contained the Statute of the ICTY, which defined the court’s jurisdiction and organizational structure, as well as the general principles of the criminal process.
The Tribunal’s mandate was to bring to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991, and thereby contribute to the restoration and maintenance of peace in the region.
According to Articles 2-5 of the ICTY Statute, the ICTY has the power to prosecute and try individuals for four categories of crimes: serious violations of the 1949 Geneva Convention, violations of the rules and customs of war, genocide, and crimes against humanity.
The ICTY and national courts had current jurisdiction over the prosecution of perpetrators, but the jurisdiction of the International Tribunal takes precedence over national jurisdiction.
The ICTY Statute also stated that the accused’s official position, regardless of whether he/she is the head of state or government or a responsible government official, does not exempt him/her from criminal responsibility and does not mitigate the punishment. Moreover, the principle of command responsibility for the first time was introduced: military or civilian leaders could be condemned for not preventing the crimes of their subordinates or not taking any measures against them.
The ICTY Statute includes the literal definition of genocide in Articles 2 and 3 of the 1949 Genocide Convention and defines crimes against humanity in conformance with similar crimes in the Statute and judgments of the Nuremberg and Tokyo Tribunals after World War II.
Territorially, the ICTY was located in The Hague.
The judiciary of the ICTY was provided by the Trial Chambers, the Prosecutor’s Office, and the Secretariat.
Court hearings were held in three court chambers, where permanent and up to nine temporary judges worked. The judges were elected for four years by the UN General Assembly on the introduction of the UN Security Council. The order of their involvement and organization of work is similar to that of a judge of the UN International Court of Justice. From April 2002 to January 2005, the ad litem judge of the tribunal was Ukrainian international lawyer Volodymyr Vasylenko.
Initially, the Office of the Prosecutor did not have a consistent case selection strategy, investigations focused on crimes committed during the Bosnian War, as that was where the UN Commission of Experts gathered evidence. Many of the first investigations focused on lower-level direct perpetrators, rather than high-ranking political and military leaders, as the masterminds of the crimes.
The indictment of Bosnian Serb leaders Radovan Karadzic and Ratko Mladic for genocide and other crimes made public in November 1995, and the indictment of Serbian President Slobodan Milosevic on May 22, 1999, had much greater significance for the region. Yes, it was in The Hague that former president Slobodan Milosevic appeared before the court for the first time, accused of committing crimes against humanity. He, along with four other military leaders of Serbia, was accused of mass deportations, murders, and persecution of Kosovar civilians on political, racial, and religious grounds. Due to his death in 2006, the final judgment against Milosevic was not announced.
The last high-profile case of the tribunal was the verdict against Slobodan Praljak, the former commander of the Bosnian Croat forces. The tribunal found him guilty of war crimes and sentenced him to 20 years in prison. At the end of November, the sentence was upheld, after which Praljak declared that he rejected the court’s decision and took poison, as a result of which he died.
As of the end of 2017, the International Criminal Tribunal for the former Yugoslavia had completed the trial against 154 accused persons. 19 were acquitted, 83 were convicted, 13 were referred to national jurisdictions, charges against 20 were dropped, 10 died before being transferred to the Tribunal, and 7 while in custody. In total, the Tribunal indicted 161 persons. At the end of 2017, 10 people remained detained in the UN penitentiary.
The ICTY has played an important role in the prosecution and development of judicial practice on sexual and gender-based violence in armed conflicts. Almost half of the indictments reviewed by the court contained accusations of sexual violence, resulting in the conviction of 32 individuals under Article 7 of the ICTY Statute. According to the results of the “Prosecutor v. Dusko Tadic” case, a verdict was handed down on charges of sexual violence, including sexual violence against men. Some verdicts also included convictions for incitement to rape, rape as torture, and sexual slavery.
The International Tribunal completed its work on December 31, 2017. It was the first war crimes court established by the United Nations and the first international war crimes tribunal after the Nuremberg and Tokyo tribunals.
For over 24 years of its activity, the Tribunal accumulated extensive experience in investigations and trials, the purpose of which is to punish violators of international humanitarian law and restore justice.
It should be noted that an important asset of the ICTY is the analysis of its activities and the impact on the development of the situation in the Balkans and Europe. Not only the work of all components of the ICTY (prosecutor, courts, lawyers, the Secretariat) but also the long-term impact of the judicial process on the lives of victims.
Counselor of the ICTY Ms. Laurel Baig outlined the work of the International Tribunal in four important topics: “gradual publicizing of the crime against humanity in the form of persecution as a typical crime of the Balkan conflict; joint criminal activity as a method of criminal liability; an obligation to prosecute crimes of sexual violence; and the turning of the laws of war into the norms of international criminal law.” Ukrainian law enforcement officers and international activists should use this experience to protect their citizens, victims of Russian aggression, as effectively as possible.
For reference
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