The Role of ICTY in Developing International Criminal Law - Essay Example

The Role of ICTY in Developing International Criminal Law Introduction During the Bosnian conflict, both sides of the divide were accused of engaging in atrocities and crimes against humanity by instigating ethnic cleansing and genocide. Both side of the war were accused of committing these atrocities and this called for the need of developing a tribunal to investigate and punish the offenders. This tribunal was guided by the desire to ensure that all victims of the conflict were served with justice and the basis of such actions was to deter future leaders from engaging in such atrocities and crime against humanity1. Apart from investigating and prosecuting the perpetrators of the Serbian atrocities, the international criminal tribunal for Yugoslavia has also been tasked with investigating suspects of Kosovo crisis. Being the first international tribunal to be formed by the United Nations, this body was placed under intense international scrutiny and follow up. Decisions and arguments presented during the hearing at the international criminal tribunal for Yugoslavia has formed the basis for developing international criminal law2. Though some of the decisions remain controversial to date, the basis for argument and decisions arrived at by the judicial team at the ICTY has formed the basis for developing international criminal laws. For example, the international criminal court established after the ICTY has borrowed a lot from the decisions and legal structure of the tribunal. The legal institution of ICTY By founding the international criminal tribunal for Yugoslavia in 1993, the United Nations Security Council provided a significant legal breakthrough in the development of international criminal law. As opposed to the previous years, international criminal law and punishment of war offenders was applied to both side of the divide without practicing the previously common victor’s justice. Despite significant progress made in establishing this body and the legal neutrality that it represented, some parties to the conflict objected being included in the investigation by the tribunal3. For example, the republic of Yugoslavia and Bosnia was against the formation of a tribunal to investigate their role in international crime. Other such as the Christian and Muslim Croats and the Herzegovina government and people supported the United Nations Security Council in establishing this tribunal. Nevertheless, the tribunal began operations by hearing the cases against different sides of the war in 1993 and it has continued to litigate other cases involving the Kosovo conflict4. Objection to the establishment of this tribunal was attributed to the loss of sovereignty that member states were subjected to as this will increase judicial action against its citizens. The ICTY statute had primacy over the national jurisdiction of the countries involved and this led to the abolition of the ne bis in idem principle that was commonly used in the litigation of war crimes5. To fulfil its legal mandate, the state parties to the United Nations Security Council, a situation that has forced the organization to make political decisions when deciding on the cases to litigate, also support the tribunal6. ICTY and development of international criminal laws International criminal law has the power to prosecute all criminal activities but the jurisprudence that has been established has led to more focus being placed on international war crimes. The development of a common approach to warfare has existed since the time of Sun Tzu, a Chinese warrior who agitated for restriction on the conduct of hostilities7. The Hindu and the Greek have also practiced the same practices traditionally in the past, a tradition that has defined the art of war and deflected war hostilities. For example, during the Persian war with the Greeks, the latter killed a Persian envoy in the belief that king Xerxes of Persia will follow suit and kill their envoy in Persia. However, Xerxes refrained from such act, arguing that the behaviour of the Greeks was against the laws and customs developed for the people during warfare. It is under this premise that the international criminal tribunal for Yugoslavia was formed to prosecute war crimes believed to go against the common war custom8. As a result, international criminal laws have been developed in the past guided by the principle of limitations of the conduct of hostilities during warfare. To ensure that individuals or groups that go against these principles are punished, ad hoc international courts have been created and established based on the ideals of the international criminal court. Such have recognized a number of patterns ad hoc courts, which have been guided by past international treaties and customs, developed for the conduct of war. The development of international criminal law was therefore achieved through specific stages following the pattern that was acquired from previous war crime litigations9. Previous war crime adjudication has contributed to the development of international criminal law and legislation to guide the actions and behaviours of soldiers in the battlefield. In trying to understand the role of the international criminal tribunal for Yugoslavia in the development of international criminal law, it is imperative to discuss how previous adjudications contributed to its development10. The first documented war crime adjudication occurred in 1474 against Peter von Hagenbach in Tokyo based on the right of the victor adjudication process. During this adjudication, an ad hoc court was established to try conquered perpetrators of crimes based on the assumption that the victors have rights. An ad hoc court was also established for the former Yugoslavia was placed under the United Nations Security Council mandate11. During these two trials, all the perpetrators of crime during the conflict was tried, even in absentia and sentenced to different period in international and local courts. The only permanent court for the prosecution of war crimes is the international criminal court whose establishment is based on the multilateral agreement of member states. As indicated, the first development of international criminal law begins with the establishment of ad hoc courts, which are made up of members from different parts of the world12. The ad hoc committees prosecuted based on perceptions that the defeated side committed the war crimes and were therefore subject to partial judicial process made up of the victors. For example, an ad hoc committee based in Austria by members of the allied states after they successfully defeated Hagenbach’s side tried Hagenbach. As a result, he was convicted for murder, rape, perjury among other criminal acts by the partial team of the victor whose actions and premise were not based on fact, but hatred for the defeated enemy13. The rules to procedure of this trial was seen as rudimentary and was basically based on only eleven written rules, which allowed members of the trial to subvert justice and procedure and subject the enemy to unfair trial14. Victor’s justice has several flaws and this affected its contribution to the development of international criminal law as has been witnessed with the ICTY. By subjecting the losers to a judicial process led by the victors, the ad hoc court violated the right of the convicted. This led to the development of an idea of a tribunal that would give equal opportunity to the victor and losers and enable the prosecution to be based on facts and evidence presented by the victims. The idea of international criminal law was conceived and developed to ensure that perpetrators of war crime are brought to justice upon this basis15. This is the basis of the establishment of the ad hoc international criminal tribunal for Yugoslavia to prosecute perpetrators from both side of the divide. Though the previous ad hoc courts that were established lacked international monitoring, these two operated under the United Nations Security Council, which monitored the process to ensure impartiality and the rule of law. The two have been seen as a breakthrough in international criminal law as it has placed both sides of the conflict in similar position as far as the prosecution is concerned16. As a result, the international criminal tribunal for Yugoslavia introduced a concept of equal justice for the victor and the losers without placing any side at a more superior position as has been witnessed in the ad hoc committees. International criminal tribunals are formed as a subset of the international institutions such as the United Nations among others and their actions should therefore influence domestic and international criminal laws17. Most international institutions such as the United Nations and the international criminal court play a significant role in influencing the behaviours and actions of member states during crisis. These include the imposition of sanctions, monitoring of behaviour during warfare and ensuring that humanitarian aid is available to victims from both sides of the war. Such legal powers have enabled such international criminal tribunals to influence the development of domestic and international criminal law and influence the institution of legal committees to ensure fairness and legality. International criminal tribunals like the one developed for the former Yugoslavia has contributed to the legalization of dispute resolution in different parts of the world through the development of the right legislations. Most of these international criminal tribunals have the ability to impact on state behaviour and influence domestic and international legislations18. Such powers have made the international criminal tribunals to deter the engagement in illegal war activities in the pretext of the victor and the loser, as has been the case in the past. In instances where the victors have been accused of engaging in war crime, state protection and support has been a common situation. However, with the support of international institutions like the world bank among others, threats of trade and political sanctions has opened a new chapter in international cooperation with criminal tribunals19. With monitoring, the use of sanctions and other instruments, states have been pushed further towards greater compliance and development of the right legal structures for preventing international war crimes. International criminal tribunals are instituted not to act against states, but individuals accused of perpetrating crimes against humanity during wars. As a result, the position of the state and their function in developing international laws is of secondary interest even to the international criminal tribunal of Yugoslavia20. The international criminal tribunal for Yugoslavia participated in defining genocide and categorizing it as an international crime against humanity. This crime has been categorized against the spirits, aims of the United Nations, and has been punished in different parts of the world following the precedence that was developed by the Yugoslavian tribunal. This tribunal contributed towards the criminalization of genocide and other related activities, which have contributed to mass murder, movement and forceful eviction from property21. Though some events during the time of war cannot be categorized as genocide or subjected to criminal litigation, actions beyond the war are considered criminal and genocidal if an entire population or ethnic group is involved22. These conventions have been the basis upon which other tribunals and charters have been developed to guide soldiers during conflict and reduce cases of genocide23. In the first general assembly meeting of the United Nations, charters and judgments were developed which influenced the development of various international laws. Experts were called upon to develop various codes of crime against the peace and security of humankind, a step that led to the development of various international laws24. Before the development of the international criminal court, independent institutions or tribunals were used to litigate war crimes in different countries such as Yugoslavia. However, the mandate of such tribunals were restricted to the countries indicated in the statutes and could not be extended to other countries25. The international criminal tribunal for Yugoslavia also faced when dealing with crime cases in Kosovo and Serbia. The extension of the jurisdiction of tribunals to other countries apart from the ones included in the charters created presented a number of challenges, which contributed to the development of a common court to deal with all cases. The international criminal court is the foundation and premise upon which all the international criminal laws have been established and work towards ensuring justice to war victims across the world26. After the establishment of the ICTY, no other tribunal has been formed to look into the war crimes committed, instead relegating the responsibilities to the international criminal court. This statute is guided by a number of international humanitarian laws that borrow precedence to the direction of the Yugoslavian tribunal of 199327. Cases to ICTY development in international criminal law As discussed, the international criminal tribunal for Yugoslavia has contributed to the development of a number of international criminal law. Most of these laws have been developed from independent statutes within the provision of the tribunal, which have been borrowed by other legal arrangements such as the international criminal court. For example, article five of the ICTY statute describes various crimes against humanity to include murder, extermination, torture, rape, enslavement, persecution based on ethnic, religious or political affiliation and deportation28. The international criminal court statute also considers crimes against humanity based on article five of the ICTY statute. As a result, a number of world leaders have been taken before the court to answer to charges against humanity. This statutes requires that an armed conflict must exist before such atrocities can be committed as highlighted by chapter five of the ICTY and other chapters of the Rome statute. The ICTY has also provided basis for the development of international customary and cultural heritage laws as has been witnessed in the case of tadic, krajisnik and mladic. As captured in article five of the ICTY statute, Hadzic was prosecuted for participating in political, racial and religious extermination, murder and imprisonment during the conflict in Serbia. All these crimes were heard under article five which categorise them as crimes against humanity and which international criminal laws placed under the Yugoslavian tribunal. Karadzic was also tried for participating, planning and instigating various crimes against humanity as captured in article five of the tribunal. According to the ICTY prosecutor, Karadzic was involved in the JCE and instigated the elimination of Bosnian Muslims. Madic was the commander of the main staff and was suspected of genocide and crimes against humanity according to article five of the statute. Though the three cases were based on article five of the statute, they defined the development of international customary laws which have applied in other jurisdictions29. The international criminal tribunal for Yugoslavia concentrated on various criminal acts committed by people empowered to protect individual life. From the name of this tribunal, just like has been the case for other before, the ICTY was established to bring to book individuals who committed atrocities against the people they were given the powers to protect. The trend that the current prosecution has adopted has shown the shift in focus from prosecuting individual perpetrators to ensuring the independent countries upheld the universal bill of rights. The establishment of international criminal laws provides the basis for the full implementation of various humanitarian laws across the globe and the elimination of genocidal activities30. According to the office of the ICTY, the tribunal has achieved significant progress in achieving its goal of influencing international law development31. Most of the witness protection programs currently adopted by a number of international litigations have also been borrowed from the precedence developed by the international criminal tribunal for Yugoslavia. Legal aid systems that are also used as part of international criminal law is also a reserve of the contribution of the tribunal established for the people of Yugoslavia. The international criminal court has in the recent past developed a well-functioning defense attorney for suspects before its court. Such a process has helped all suspects to be subjected to just and fair process based on the provisions of international criminal law and humanitarian laws32. Conclusion The international criminal tribute for Yugoslavia was developed to help try war crime suspect during the war in Bosnia, Herzegovina and Kosovo when various war crimes were committed. 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