International Criminal Tribunal for the former Yugoslavia

Creation

United Nations Security Council Resolution 808 of 22 February 1993 decided that "an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991", and calling on the Secretary-General to "submit for consideration by the Council … a report on all aspects of this matter, including specific proposals and where appropriate options … taking into account suggestions put forward in this regard by Member States".

The Court was originally proposed by German Foreign Minister Klaus Kinkel. 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. Resolution 827 of 25 May 1993 approved S/25704 report of the Secretary-General and adopted the Statute of the International Tribunal annexed to it, formally creating the ICTY. It would have jurisdiction over four clusters of crime committed on the territory of the former SFR 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.

Implementation

In 1993, the ICTY built its internal infrastructure. 17 states have signed an agreement with the ICTY to carry out custodial sentences.

1993-94: In the first year of its existence, the Tribunal laid the foundations for its existence as a judicial organ. The Tribunal established the legal framework for its 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 is part of the United Nations and as it was the first international court for criminal justice, the development of a juridical infrastructure was considered quite a challenge. However after the first year the first ICTY judges had drafted and adopted all the rules for court proceedings.

1994-95: The ICTY established its offices within the Aegon Insurance Building in The Hague (which was, at the time, still partially in use by Aegon) 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.

Operation

In 1994 the first indictment was issued against the Bosnian-Serb concentration camp commander Dragan Nikolić. This was followed on 13 February 1995 by two indictments comprising 21 individuals which were issued against a group of 21 Bosnian-Serbs 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.

The court confirmed 8 indictments against 46 individuals and issued arrest warrants. Bosnian Serb indictee Duško Tadić became the subject of the Tribunal's first trial. 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). He made his first appearance before the ICTY Trial Chamber on 26 April 1995, and pleaded not guilty to all of the charges in the indictment.

1995–96: 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 Tribunal's detention unit. In addition to Duško Tadic, by June 1996 the tribunal had Tihomir Blaškić, Dražen Erdemović, Zejnil Delalić, Zdravko Mucić, Esad Landžo and Hazim Delić in custody. Erdemović became the first person to enter a guilty plea before the tribunal's court. Between 1995 and 1996, the ICTY dealt with miscellaneous cases involving several detainees, which never reached the trial stage. Some of the accused had been arrested and others surrendered to the ICTY.

Accomplishments

In 2004, the ICTY published a list of five accomplishments "in justice and law":

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 Yugoslavia 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 to justice 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.

Planned closure

The United Nations Security Council passed resolutions 1503 in August 2003 and 1534 in March 2004, which both called for the completion of all cases at both the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR) by 2010.

In December 2010, the Security Council adopted Resolution 1966, which established the Mechanism for International Criminal Tribunals (MICT), a body intended to gradually assume residual functions from both the ICTY and the ICTR as they wound down their mandate. Resolution 1966 called upon the Tribunal to finish its work by 31 December 2014 to prepare for its closure and transfer of its responsibilities.

In a Completion Strategy Report issued in May 2011, the ICTY indicated it aimed to complete all trials by the end of 2012 and all appeals by 2015, with the exception of Radovan Karadžić whose trial was expected to end in 2014 and Ratko Mladić and Goran Hadžić, who were at large at that time and were not arrested until later that year.

The MICT's ICTY branch began functioning on 1 July 2013. In accordance with the Transitional Arrangements adopted by the UN Security Council, the ICTY will conduct and complete all outstanding first instance trials, including those of Karadžić, Mladić and Hadžić. The ICTY will conduct and complete all appeal proceedings for which the notice of appeal against the judgement or sentence was filed before 1 July 2013. Any appeals for which notice is filed after that date will be handled by the MICT.

Organization

The Tribunal employs around 900 staff. Its organisational components are Chambers, Registry and the Office of the Prosecutor (OTP).

Prosecutors

The Prosecutor is responsible for investigating crimes, gathering evidence and prosecutions and is head of the Office of the Prosecutor (OTP). The Prosecutor is appointed by the UN Security Council upon nomination by the UN Secretary-General.

The current prosecutor is 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. David Tolbert, the President of the International Center for Transitional Justice, was also appointed Deputy Prosecutor of the ICTY.

Chambers

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.

Judges

There are seven permanent judges and one ad hoc judge who serve on the Tribunal.

UN member and observer states can each submit up to two nominees of different nationalities to the UN Secretary-General. The UN Secretary-General submits this list to the UN Security Council which selects from 28 to 42 nominees and submits these nominees to the UN General Assembly. The UN General Assembly then elects 14 judges from that list. Judges serve for 4 years and are eligible for re-election. The UN Secretary-General appoints replacements in case of vacancy for the remainder of the term of office concerned.

On 21 October 2015, Judge Carmel Agius of Malta was elected President of the ICTY and Liu Daqun of China was elected Vice-President; they will assume their new positions on 17 November 2015. His predecessors were Antonio Cassese of Italy (1993–97), Gabrielle Kirk McDonald of the United States (1997–99), Claude Jorda of France (1999–2002), Theodor Meron of the United States (2002–05), Fausto Pocar of Italy (2005–08), Patrick Robinson of Jamaica (2008–11), and Theodor Meron (2011–15).

Registry

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).

Detention facilities

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 luxuries. 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. 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”. 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.

Indictees

The very first hearing at the ICTY was referral request in the Tadić case on 8 November 1994.

The Tribunal indicted 161 individuals between 1997 and 2004; as of October 2016, it has completed proceedings with regard to 154 of them:

Proceedings for the remaining 7 indictees are still ongoing at the ICTY — 1 indictee is in the trial phase and 6 indictees are before the Appeals Chamber.

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. Other "high level" indictees included Milan Babić, former 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.

Croat Serb General and former President of the Republic of Serbian Krajina Goran Hadžić was the last fugitive wanted by the Tribunal to be arrested on 20 July 2011.

An additional 23 individuals have been the subject of contempt proceedings.

Active cases

In the case of Ratko Mladić, the Prosecution and Defence filed final trial briefs on 25 October 2016. Closing arguments took place from 5 to 15 December 2016. A judgment is expected in November 2017.

A single case encompassing six individuals is at the appeals stage.

Criticism

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 for the ICTY it would be an even greater one, 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.

Criticisms of the court include:

Response to criticism

Supporters of the work of the ICTY responded to critics in various publications. In a response to David Harland's Selective Justice, Jelena Subotić, an assistant professor of political science at Georgia State University and author of Hijacked Justice: Dealing with the Past in the Balkans, responded that the critics of the Tribunal miss the point, "which is not to deliver justice for past wrongs equally for 'all sides', fostering reconciliation, but to carefully measure each case on its own merits ... We should judge the work of the tribunal by its legal expertise, not by the political outcomes we desire."

Marko Hoare claims the accusations of the tribunal's "selective justice" stem from Serbian nationalist propaganda. He wrote: "This is, of course, the claim that hardline Serb nationalists and supporters of Slobodan Milosevic have been making for about the last two decades. Instead of carrying out any research into the actual record of the ICTY in order to support his thesis, Harland simply repeats a string of cliches of the kind that frequently appear in anti-Hague diatribes by Serb nationalists."