Success of the International Criminal Tribunal for the Former Yugoslavia - Essay Example

Success of the International Criminal Tribunal for the Former Yugoslavia Introduction The International Criminal Tribunal for the Former Yugoslavia (ICTY) has been successful in fulfilling its objective of according justice to victims or engendering reconciliation in this war torn region. The following discussion proves this contention. The objective behind forming the Tribunal was to secure justice for the victims of the conflict and to dissuade future leaders from engaging in similar outrages. As the first among the special tribunals of the UN, the ICTY was viewed with great intensity. 1 In this regard, Resolution 827 of the UN Security Council of 25 May 1993, stipulates the chief objectives of the ICTY, as the deterrence of further crimes, dispensation of justice, and facilitation of the restoration and maintenance of peace.2 The ICTY achieved a certain amount of deterrence, by prosecuting important leaders, such as Milosevic.3 This sent out the message that the law could not be violated by any individual, regardless of that person’s power. Furthermore, the ICTY set the precedent for establishing similar tribunals in Cambodia, East Timor, Lebanon, Rwanda, and Sierra Leone. This served to convey the emphatic message that the violators of international law would be held accountable for their crimes, irrespective of their position.4 The implementation of international law constitutes an endeavour that is best achieved by the individual nations. The international law is founded on the conduct of nations. Consequently, it is essential to involve individual nations in the implementation of international law. On occasion, a nation may prove incapable of or unwilling to adhere to the norms of international law. In such cases, the comity of nations or a group of nations will, in general, intervene and ensure that the international law standards are upheld. 5 In such instances, the intervening nations will endeavour to establish the rule of international law in a direct manner, and in the absence of the state’s mediation. Such events are exceptional, and the establishment of ad hoc tribunals is an example of such situations. In order to ensure complementarity, the UN Security Council established ad hoc tribunals, in Rwanda and the former Yugoslavia. 6 As such, the objective of the UN Security Council, behind forming these tribunals was to fulfil its mandate to preserve peace and security. It was perceived by the UN Security Council that these tribunals should not influence the normal course of affairs. As such, the aim was to recognise the fact that domestic jurisdictions should be permitted to address infringements of international law. Formation and Background of the ICTY The ICTY was formed by the UN Security Council in 1993, for prosecuting the individuals responsible for the war crimes that had taken place in the former Yugoslavia. 7 The UN Security Council adopted Resolution 827 on 25 May 1993, which established the ICTY. This Resolution declared that the ICTY had been formed with the sole objective of prosecuting the persons who had committed serious breaches of international humanitarian law.8 These breaches had been committed in the territory of the erstwhile Yugoslavia from 1 January 1991 to a date specified by the UN Security Council upon the restoration of peace. 9 At that juncture, the temporal mandate of the Tribunal had to be left open, as the conflict had not come to an end. Furthermore, it was declared that The Hague would be the seat of the Tribunal. The UN Security Council witnessed unanimity, with regard to support for the creation of this Tribunal.10 One perception was that the formation of the Tribunal furnished a politically and economically inexpensive alternative for responding to demands for international action. At the time of creating the ICTY, the UN Security Council took recourse to its authority under Chapter VII of the UN Charter. 11 As a consequence, it mandated that the ICTY was to prosecute the following types of offences. These pertained to grave breaches of the Geneva Conventions of 1949, violations of the customs or laws of war, genocide, and crimes against humanity. With regard to indicting on charges of grave breaches, violations of the laws or customs of war, or crimes against humanity, the presence of a state of war had to be shown by the Prosecutor.12 However, with regard to a charge of genocide, there was no necessity to demonstrate the presence of a state of war. With regard to this issue, a broad view of the offence of violation of the laws or customs of war has been taken, and this aspect is frequently invoked, when it becomes difficult to justify the other three offences. The Resolution, under Article 7(1) provides that any individual who plans, instigates, orders, commits, or otherwise assists or abets in the planning, preparation or execution of a crime is to be deemed individually responsible, with respect to that crime.13 Functioning of the ICTY The UN Charter specifies certain human rights and fundamental freedoms. These have been enumerated in the Universal Declaration of Human Rights.14 In addition, the International Convention on the Elimination of All Forms of Racial Discrimination precludes the UN from indulging in racial discriminative acts or practices against individuals, groups of persons or institutions. 15 As such, the Prosecutor of the ICTY has to comply with the UN Guidelines relating to the Role of Prosecutor. The Prosecutor is required to abstain from discriminating on the basis of race, religion or gender.16 In addition, Article 16 of the ICTY Statute declares that it is responsibility of the Prosecutor to investigate and prosecute the people responsible for the war crimes committed in the erstwhile Yugoslavia. In this context, it has been acknowledged that there can be no discrimination regarding war crimes and that each and every individual guilty of such crimes has to be prosecuted to the full extent of the law. Consequently, the Prosecutor has been vested by the Statute, with the power to investigate, indict, arrest and prosecute every war crime. Investigation has to be initiated by the Prosecutor, on the basis of information procured from any source, such as national governments, UN organs, or Non – Governmental Organisations (NGOs).17 Investigations are conducted by the Prosecutor, at the location of the incident. Thereafter, the Prosecutor ascertains if there is a prima facie case, issues an indictment, and calls for an arrest warrant.18 The Tribunal enjoys primacy over the national courts. In addition, the ICTY has exhibited its keen interest in compromising its statutory status of predominance over national prosecutions and adopting a position of reciprocity towards national prosecutions. From this perspective, the formation of the ICC, which is critically dependent upon the idea of complementarity, could exercise a major influence upon the practice of the ICTY. 19 In the initial stages, the ICTY had been sceptical regarding national legal intervention by the courts of the erstwhile Yugoslavia. This cynicism emerged from the institutional limitations of the national courts, ethnic neutrality and bias, and a deep desire to safeguard incipient international processes. Nevertheless, the ICTY gradually overcame these reservations. A number of rules have been developed that pertain to the relationship between the ICTY and the indigenous institutions. This is in the context of adjudication of individual criminal responsibility for the mass atrocities committed in the former Yugoslavia. A certain amount of jurisdictional ordering is present in the situation. This stems from the jurisdictional primacy of the ICTY over the domestic courts, regarding war crimes, crimes against humanity and genocide.20 The limits of the correlation between the ICTY and other international institutions have not been defined. The associations betwixt these entities are scant and appellate or review hierarchies are absent. 21 As such, international criminal proceedings cannot supplant national proceedings. For example, in Prosecutor v Duško Tadic,22 the Appeals Chamber concurred with the decision of the Trial Chamber that the crimes of the accused were of a universal nature and not merely domestic in nature. These crimes had been regarded by international law as constituting serious violations of international humanitarian law, and going beyond the interest of any single nation.23 Enforcement Procedures The formation of the ICTY under Chapter VII of the UN Charter, served to restrict its temporal and territorial jurisdiction, and to constrain the ambit of its subject matter jurisdiction. In addition, it engendered stringent criteria regarding the choice of the applicable law. The UN Security Council is not a legislative body, and this ensured the same deficiency in the ICTY. 24 Consequently, the ICTY was empowered to limit itself to the application of provisions of international humanitarian law that were clearly components of the customary international law. 25 This was irrespective of whether these provisions had been codified in international instruments or the state in question had included them in their national laws. The ICTY, per se, is constrained to rely on international organisations and countries to bring about the execution of warrants and arrests. The obligation of a nation to cooperate with the ICTY stems from the fact that the latter has been constituted under the auspices of the UN Security Council, under Chapter VII of the UN Charter. Consequently, this is mandatory for all the nations, due to the provisions of Article 25 of the UN Charter. 26 As a consequence, states are required to adopt the necessary measures to implement the decision. Furthermore, Article 29 of the Statute declares that the states are obliged to cooperate with the ICTY and to comply with the requests of the latter for requests relating to orders or assistance. 27 However, as of the year 2009, 161 individuals had been indicted by the ICTY.28 In addition, several thousand war crime cases, have been pending before the Bosnian and Herzegovinian courts. 29 Moreover, the success of the legal strategy adopted by the ICTY depends to a significant extent upon the support provided by partners in the former Yugoslavia. It is a well – recognised fact that the ICTY cannot function in isolation in the region. The presence of local partners ensures that local knowledge and local networks are involved. 30 As such, the presence of local partners is essential for grass root activities and for influencing community leaders on the manner, in which the function and achievements of the ICTY are to be utilised, in the aftermath of its eventual closure. The support of these entities is indispensable for addressing the denial of crimes and for the struggle to enforce accountability. 31 In addition, the local judiciary in the former Yugoslavia had been set an onerous task. The ICTY commenced its work, while the conflict was raging and the local judiciaries had been emasculated. At that point of time, the ICTY had tried the majority of the individuals responsible for the war crimes in that region.32 As a result, the ICTY had to ask the local judiciaries to undertake a very large number of cases. Thus, cooperation emerged between the ICTY and the local judiciaries; which has been in continuance from several years. The beneficiaries of this cooperation are the local judiciaries, as well as the ICTY. Considerable training has been provided to defence counsels, judges and prosecutors, on account of this cooperation. The nature of the progress achieved by all the regional stakeholders has been outstanding; and the local judiciaries have vastly enhanced their competence to prosecute war crimes.33 Moreover, all the states of the former Yugoslavia are making significant progress in their endeavour to become Member States of the European Union. As such, the efforts made by ICTY in upgrading the local knowledgebase of the judiciaries is significant. All the same, the ICTY has spearheaded the enforcement revolution, albeit with significant success. One can safely conclude that the ICTY has emerged as a prototype for a plethora of institutions that have clearly highlighted the centrality of international justice to world politics.34 The principal objectives of the ICTY have been specified as bringing war criminals to justice and the stabilisation of peace in Bosnia, via reconciliation. Slobodan Milosevic has been prosecuted by the ICTY and Radovan Karadzic is presently being prosecuted. The latter is the leader of SDS, which constitutes an extreme nationalist party. This party had embarked upon a project for achieving a Greater Serbia that was based on ethnic purity in Bosnia. The outcome was genocide. Furthermore, Ratko Mladic, the military leader of Serbian forces in Bosnia, was also placed on trial for the gravest of crimes, including genocide. Despite the popular perception that these crimes had been primarily committed by Serbian forces, individuals from other national groups had also engaged in such crimes. Several of these individuals had also been tried by the ICTY. 35 The query, naturally arises, whether the ICTY constitutes an intervention to preserve or restore national peace and security. Moreover, the ICTY is based upon the principle of flexibility, with regard to the admissibility of evidence. This provides an indication of the adaptability of the Tribunal towards its specific requirements regarding its exceptional jurisdiction. In addition, the ICTY has been empowered to modify or create its own rules. Furthermore, with regard to the ICTY and in the context of sentencing, predictability tends to be significant for consistency and fairness. The examined legal factors make it possible, to a limited extent, to predict the determination of sentences. 36 As such, from certain perspectives, the ICTY could be considered as a judicial experiment. A major achievement of the ICTY is that it has indicted many of the powerful actors in the region. This has effectively uprooted the customary impunity for war crimes. In its painstaking endeavours, the ICTY has taken legal action against heads of state, prime ministers, chiefs – of – staff of armies, ministers of the government, and several other leaders who were party to the conflicts in Yugoslavia..37 In addition, the legal aid system of the Tribunal has successfully retained competent attorneys from several jurisdictions. These attorneys provide legal assistance to the accused. The ICTY Association of Defense Counsel is an important feature of the institutional growth of the Tribunal. These measures have ensured that the highest protection is accorded to the rights of the accused. Moreover, the provision of vast facilities has ensured that self – representation in the court, by those who refuse to be represented by a lawyer, has ensured effective representation by these persons.38 Moreover, the ICTY has adopted a policy of transparency. Thus, its detention centre can be entered by its supporters, such as the Member States, or the International Committee of the Red Cross. These entities inspect the detention centre, on a regular basis. In addition, the ICTY has achieved success in communicating fluently with the accused, irrespective of the specific language of the region employed. This has been chiefly carried out under the Bosnian – Croatian – Serbian, which has been created by the ICTY. 39 Furthermore, the ICTY has placed case files that run into thousands of pages, inside and outside its courtrooms. The proceedings of these courts are streamed to the global media. The events of Kosovo, Sarajevo and other places are shown in the places of their occurrence, as well as in the other parts of the world. 40 This evidences the fact that the working pattern of the ICTY is transparent and provides justice to victims of war crimes. Conclusion During the recent decades, there has been a gradual movement to prosecute those involved in war crimes, genocide, and crimes against humanity. In this context, two UN international tribunals have been established; namely, the ICTY and the ICTR. These tribunals deal with such crimes in the former Yugoslavia and Rwanda. The ICTY is an organisation that is seized with ensuring justice for victims and bringing war criminals to justice. Since, the late 1980s, Yugoslavian societies had been undergoing major upheavals that democratised and liberalised them from the socialism being practiced in their country. Subsequent to the war and genocide, in the 1990s, the need has been felt for having a robust judicial mechanism to facilitate the task of transition. Such judicial systems were considered to be indispensable for achieving reconciliation among the people. In addition, the ICTY was aimed at restoring civic trust in state institutions and their capacity and sincerity in protecting human rights. The function and achievements of the ICTY have had a significant bearing upon the development of international criminal law, which can be reasonably expected to affect transitional justice at the international level. The jurisdiction of the ICTY extends to crimes committed since 1991 on the erstwhile Yugoslavian territory. These crimes can be classified as grave violations of the Geneva Convention; violations of the customs and laws of war; genocide and crimes against humanity. Moreover, the purpose of criminal proceedings against war crimes goes beyond determining guilt at the individual level, for the crimes committed. In fact, such proceedings provide the opportunity to restore dignity to the victims and to bring about a reconciliation between the parties. The overall strategy of the ICTY has related to empowering local partners and cooperating with them. The civil society elements and local judiciaries that challenge the denial of crimes and strive to impose accountability, irrespective of rank and ethnicity have to be supported. This is essential for long term peace and security. Another great achievement of the ICTY is that it has influenced the judiciaries of the former Yugoslavia to change and to carry forward its task of trying the individuals responsible for war crimes. Thus, the Tribunal works in collaboration with the domestic courts of the region, by transferring its evidence, jurisprudence and knowledge. This is aimed at strengthening the rule of law and at providing justice to the victims of that area. In the aftermath of its formation, the ICTY has shifted the emphasis from whether leaders should be held accountable to the best possible means of holding such leaders to account. From the above discussion, it can be surmised that ICTY has been successful in dealing with war crimes in the former Yugoslavia, in ensuring justice to the victims and in engendering reconciliation. Although there are some problems initially, with its jurisdictional issues it has achieved significant success with the aid of national judiciaries in providing justice to victims of war crimes. Bibliography — — ‘Achievements’ (UN ICTY, 2013) accessed 14 May 2014 — — ‘Charter of the United Nations’ (International Court of Justice) accessed 11 May 2014 — — ‘Establishment’ (ICTY) accessed 11 May 2014 — — ‘ICTY’s 20th Anniversary - Remarks of Registrar John Hocking’ (UN ICTY, 27 May 2013) accessed 14 May 2014 — — ‘International Convention on the Elimination of All Forms of Racial Discrimination’ (United Nations Human Rights, 2014) accessed 11 May 2014 — — ‘International Criminal Tribunal for Yugoslavia’ (Global Policy Forum, 2014) accessed 11 May 2014 — — ‘Practice Relating to Rule 161. 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