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The world before create a new criminal tribunal: the ICTY case and experience

The original article was published on the Balkans in-site.  Any article reprints only with the author’s permission and the Balkans in-site.

War crimes, genocide, and war against humanity, again and again, are repeated in the world. In the XX century, humanity clashed several times with these atrocities committed during the First and the Second World Wars, local conflicts in different regions of the world. Every time the international community said, “Never again,” it organized international tribunals to convict war criminals. In the XXI century, humanity had a similar situation in Lebanon, Sierra Leone, Syria, and Ukraine. The UN created special tribunals for Lebanon and Syria, the purpose of which is to bring responsible persons involved in the commission of war crimes to justice. After February 24, Ukraine calls the international community, the UN, and countries of the world the creation of an international tribunal to investigate the crimes of Russia and Russians in Ukraine and bring war criminals to justice for genocide and war crimes. Ukrainian lawyers, human rights activists, the Office of the Prosecutor General, and law enforcement authorities use international experience in creating the International Tribunal for the former Yugoslavia. This institution was created in 1993 when interethnic conflicts were in Croatia, BiH. The tribunal formally ceased to exist on December 31, 2017. Instead, the ICTY has created the International Residual Mechanism for Criminal Tribunals, which performs the tribunal’s functions, including oversight of sentences and consideration of any appeal proceedings initiated since July 1, 2013.

The appearance of the ICTY was preceded by missions to investigate war crimes on the territory of Bosnia and Herzegovina and Croatia. In 1992, the UN Security Council authorized the creation of the UN Commission of Experts, whose employees were engaged in establishing the facts of war crimes and massive human rights violations in the territory of the former Yugoslavia. The commission ended its work in 1994 because, in 1993, the UN Security Council approved Resolution 827 on creating the ICTY. The commission of experts collected a large amount of factual and documentary material; created a database on mass violations of human rights in the territory of the former Yugoslavia; established the scale of civilian casualties during the conflicts in Bosnia and Herzegovina and Croatia; determined the nature of the violations, which were part of the policy of the governments of the republics of the former Yugoslavia, as systematic and purposeful.

EU missions were also engaged in collecting information about crimes. However, they were created to investigate specific cases of violations – violence against Muslim women in Bosnia and Herzegovina and Croatia. The first EU mission worked in these republics from December 18 to 24, 1992, and the second from January 19 to 26, 1993. The reports presented confirmed the facts of human deaths, mass violence against women, and their difficult situation in brothels and camps. Special attention was paid to the inhumane treatment of women, especially pregnant and sick women. All this contributed to the spread of the idea of the need to establish an international tribunal among the EU member states already in January 1993.

Similar processes are observed in Ukraine. Many countries have already joined in documenting the facts of war crimes in settlements under the temporary occupation of Russian troops in Ukraine. There is more and more such evidence, which is why countries recognize Russia as a terrorist state and actions in Ukraine as genocide. Recently, the EU and the UN have more actively discussed creating a special tribunal for the Russian Federation so that its political leadership and the military, who commit war crimes against the civilian population, are brought to justice, not after the war but now.

In 1993, the UN Security Council adopted Resolution 827 and also developed in detail the principles of the work of this newly created organization, the location of which was determined in The Hague (Netherlands). First, the prosecution service of the tribunal had the right to make decisions independently and conduct investigations. Second, the tribunal’s jurisdiction had priority over the activities of national courts. At the same time, both the ICTY and national courts could carry out parallel judicial investigations of war crimes. Thirdly, the chief prosecutor (prosecutor) of the tribunal in The Hague received the right to independently address the governments of the former Yugoslav republics with demands for the provision of necessary information and documentation, the transfer of detained persons, with a request to assist in the search for the accused or help in the investigation of war crimes. The statute of the international tribunal also determined the composition of the courts that had the right to administer justice. The total number of courts was 11 persons whose candidacies had the right to nominate UN member states and conditions with permanent observer missions in central UN institutions.

The tribunal’s activities were limited by time and geographical boundaries. Article 8 of the Statute of the ICTY stated that the territorial jurisdiction of the tribunal extends to the territory of the former Yugoslavia within its land, air, and water borders. The ICTY investigates crimes that were recorded on the part of the former Yugoslavia during 1991-2001. The ICTY Statute defines the lower limit of events to be investigated by the tribunal – January 1, 1991 (Article 8), which was associated with the first manifestations of the interethnic struggle between Serbs and Croats on the territory of Croatia. During the operation of the ICTY, the upper limit was determined – 2001 – chosen by the Prosecutor’s Office of the tribunal in connection with the facts of severe human rights violations during the conflict in Macedonia.

In Resolution 1503 (2003) of the UN Security Council dated August 28, 2003, it was determined that the judges of the ICTY were to complete the consideration of all court cases during 2008 and by 2010 – to consider all appeals. The conclusion of the last trial should have meant that the tribunal ceased to exist. However, in 2010 and 2012, the UN Security Council extended the term of operation of the ICTY, which was connected with the arrests of R. Karadzic in 2008 and H. Hadzic and R. Mladic in 2011. Separate trials continued until 2017, the ICTY ceased operations, and the cases were transferred to the International Residual Mechanism.

Only natural persons who, according to Art. 6 of The Statute of the tribunal, were divided into “organizers” and “direct executors” of war crimes. According to the conclusions of the UN Commission of Experts, the person who gave the order to commit the crime is just as guilty as the person who committed it, so both categories should bear the same responsibility.

The judges of the ICTY held war commanders to special responsibility because they planned and carried out the preparation of military actions. These persons directly managed the armed forces under their control, which carried out operations, knew about the possible results and consequences of such activities, and could prevent the commission of war crimes against the civilian population.

In the category of “organizers,” the Prosecutor’s Office of the ICTY assigned persons who organized the genocide of the civilian population, shelling of non-military objects, and “ethnic cleansing”. The “perpetrators of crimes” included military personnel who carried out mass deportations of the people to concentration camps and unique places of detention, carried out campaigns to cleanse territories of the population based on ethnicity, violated the norms of international law and the provisions of the Geneva Conventions of 1949, which related to crimes against peace population during the war.

Representatives of all the peoples of the former Yugoslavia were accused of war crimes: Kosovar Albanians, Muslims, Macedonians, Serbs, Croats, and Montenegrins. The vast majority of accusations were brought against representatives of the Serbian people.

The indictment protocols consisted of two parts: the final reports of the tribunal prosecutor and the list of killed persons, destroyed cultural monuments, and the names of settlements that suffered the most during military operations. Most of the suspects were charged with several types of crimes at once. Most often, these were crimes against humanity and humanity, violations of the Geneva Conventions, genocide, and complicity in genocide. Individual responsibility was assumed for war crimes.

The activity of the ICTY was multi-vector due to the need for a detailed investigation of crimes on the territory of the former Yugoslavia. Among the main areas of work of the tribunal, we can highlight active cooperation with various organizations; interaction with peacekeeping and police contingents in Bosnia and Herzegovina, Kosovo, Macedonia, and Croatia; collaboration with the governments of the former Yugoslav republics. The ICTY attached the most significant importance to the last aspect, as direct connections with the leaders of these states ensured successful and efficient investigations, searches, and extradition of suspects.

The main tasks of the offices of the chief prosecutor of the ICTY in the states of the former Yugoslav federation were: control over the activities of investigative commissions and military chambers; work with witnesses of crimes; constant and direct cooperation with the leaders of the republics; the processing of critical archival documents.

In addition to cooperation with the governments of the former republics of Yugoslavia, the international tribunal in The Hague relied on collaboration with other European states, formalized by several treaties. Thanks to this, the tribunal coordinated collecting materials for prosecution, search, and punishment. Two types of ICTY agreements were concluded with the heads of state and governments of countries around the world: on providing comprehensive assistance to judges and prosecutors of the ICTY and serving prison terms by convicted persons in European countries.

With the closure of the ICTY, the process of bringing war criminals to justice and investigating war crimes did not stop. National BiH, Croatia, Serbia, Montenegro, and Kosovo courts should deal with cases against middle- and lower-level suspects. War crimes committed by the leadership and service members of the Kosovo Liberation Army are dealt with by the Kosovo Specialist Chambers and Specialist Prosecutor’s Office. This institution, like the ICTY, is located in The Hague. The former president of Kosovo, Hashim Thaci, and politicians and Kosovo, who were members of the Kosovo Liberation Army in the 1990s, is now indicted there.

Using the experience of convicted war criminals in Yugoslavia and Ukraine, the international community has a good chance of creating effective mechanisms for combating war criminals who commit deportations, ethnic cleansing, and genocide against the civilian population.

Resources:

  1. Letter dated 24 May 1994 from the Secretary-General to the President of the Security Council S/1994/674. – 27 May 1994. – 84 p.
  2. Letter dated 9 February 1993 from the Secretary-General Addressed to the President of the Security Council. – S/25274. – 2 p.
  3. The Warburton Report: Extracts EC Investigative Mission into the Treatment of  Muslim Women in the Former Yugoslavia:  Report to EC Foreign Ministers http://www.womenaid.org/ press/info/humanrights/warburton.htm
  4. EC Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia: Report to EC Foreign Ministers. – Released February 1993 / By Udenrigsministeriat Ministry Of Foreign Affairs Copenhagen. – Warburton Mission II Report http://www.womenaid.org/ press/info/humanrights/warburtonfull.htm


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