Evaluation the International Criminal Tribunal for the Former Yugoslavia - Research Paper Example

 < Evaluating the ICTY > Abstract The essay evaluates the International Criminal Tribunal for the former Yugoslavia. The claims made by the ICTY regarding its success with conflict resolution and post conflict development, is critically assessed as well. Table of Contents I. Introduction…………………………………………………………. 4 II. Aspects of the ICTY ……………………………… 4 III. Criticisms of the ICTY ……………………………………….… 6 IV. Assessment……………………………………………………. 9 V. Advocates and Opponents………………………… 10 VI. ICTY’s Achievements ……………………………………………… 13 VII. Conclusion…………………………………………………………... 14 Introduction The UN Security Council Resolution established the International Criminal Tribunal for the former Yugoslavia or the ICTY in 1993. In the former Yugoslavia, the sovereign right of exercising territorial jurisdiction has been increasingly compromised; therefore an international organization which could enforce the justice principles was created. It was extremely important for the international community to step in and secure justice for the citizens of Yugoslavia, since order and justice was failing. The enforcement of human rights and establishing the foundation for effective conflict resolution and post conflict development has been one of the guiding principles of the ICTY. Aspects of the ICTY The establishment of the International Criminal Tribunal for the former Yugoslavia by the United Nations was one of the precedents which paved the way for multilateral action by the international community and nation-states concerned about the declining administrative conditions of former Yugoslavia. However there are a few shortcomings with the ICTY. One of the major shortcomings is that it is an organization which is ad hoc in nature, which in turn makes it a very problematic institution having a number of limitations. It might have some shortcomings; however the advantages far outweigh the disadvantages of The International Criminal Tribunal for the former Yugoslavia. And the major advantage of having ICTY is that it lays the groundwork for international law and politics and helps in the establishment of the International Criminal Court or the ICC. The ICC serves as a permanent mechanism which enforces justice. Peter Radan(2002, p.201) states ‘With the exception of Bosnia-Hercegovina, for all the secessions of and within Yugoslavia’s republics, it was explicitly claimed that they were justified on the basis of the right of peoples to self-determination. This is apparent from the various declarations of independence and constitutions adopted by the seceding entities. Bosnia-Hercegovina was a special case due to the absence from that republic of a dominant national group. However, self-determination was still a significant factor. The political programmes and actions of each of its three major political parties were manifestations of the right of the respective nations to self-determination. The Serbs and Croats sought the partition of Bosnia-Hercegovina and the incorporation of their territories into their respective mother states of Serbia and Croatia. The Muslim aim of a unitary Bosnia-Hercegovina was in essence a demand for a state to be dominated by the relative majority Muslim population. None of the three parties achieved their goals. However, the Dayton Peace Accords of 1995 essentially partitioned Bosnia-Hercegovina into two defined federal units, the Serb Republic and Muslim–Croat Federation. Although the Croat entities created during the war were explicitly abolished by the Dayton Peace Accords, effective control of the Muslim–Croat Federation remained divided between Croats and Muslims. This, combined with the Serb Republic, effectively partitioned Bosnia-Hercegovina into three nationally defined units. From this perspective, the Serbs and Croats came closest to achieving their goals based upon claims to self-determination.’ There is another aspect of the ICTY which pertains to the ‘Prosecutor vs. Tadić’ decision, which has become a challenging issue for the dominance of the ICTY in relation to national courts. This further reinstates that there are some inherent conflicts between justice and order, although the ICTY has been generally successful in resolving conflicts. It is an established fact that the revitalization of post-war Yugoslavia has been successful due to the painstaking efforts of ICTY. However, the successor states of Yugoslavia would definitely have to go through extremely complex political and economic endeavors, which would eventually help them to identify the specific strategy for development, which would suit the nations. There would be similar issues which would still continue to dominate the conferences and political discussions. Issues would range from the return of the refugees, the return of all of the private property which had been taken to the reconciliation of the several ethnic groups which had existed in Yugoslavia. Therefore, the ICTY has served as a temporary resolution forum for all these vital concerns. These concerns are still prevalent in the newly formed nations from the former Yugoslavia, and it is not only the onus of the ICTY to investigate and prosecute the perpetrators of war crimes during the era of Milosevic, it is also the responsibility of the new nation-states in offering the ICTY assistance in in the perpetrators trial and eventually bringing them to book. Jan Koehler et al(2003, p.1) states ‘Judging by historical and contemporary evidence, the collapse of multiethnic empires is almost inevitably a conflict-prone process. The implosion of the central state and its hierarchies turns imperial peripheries into peripheries without empires. The former centrally administered society fragments into multiple societies, which have to (re-)build state administrations, (re-)draw boundaries and (re-)invent loyalties. They have to establish new institutional arrangements for self-regulation in order to ensure security, political participation and economic development after empire. These institutions have to be inscribed into a political space, whose boundaries are often ill-defined and contested. And there has to be an understanding of who is legitimately in charge of designing these institutions, and to whom these new rules of the game are going to apply. The implosion of the socialist empires forced the societies of the post-socialist spaces to redefine the most basic institutions that govern social life. They had, in short, to embark upon a process of competitive and contested polity building. All the societies of the collapsed empires faced this challenge.’ Criticisms of the ICTY The ICTY has helped in resolving conflicts and also have made a great contribution in returning private property and blending the multiethnic society is a former Yugoslavia through the effective enforcement of law and order. But lately, the number of critics pointed out that the ICTY hasn’t been as successful in competition the restoration of freedom as well as the return of private property. However it has been generally acknowledged that the handling of war crimes has been very successful to date for the ICTY. The successor state governments of former Yugoslavia include Bosnia, Croatia, Herzegovina and Yugoslavia. The governments of these states have been more practical than being visionary, according to the number of economists. The issue of war crimes is a very sensitive issue and it is often very divisive. War crimes are more of a political and ideological issue than being a social or economic issue. This makes the resolution of war crimes very difficult because a number of social and economic difficulties need to be dealt with, and as a result of war crimes being heavily dependent on the political aspect, the ICTY finds it increasingly difficult to initiate criminal proceedings against people who belong to one of the newly formed countries. By initiating a probe on the accused perpetrators, the ICTY creates a political ill-will with that country. Peter Radan(2002, p.205) states ‘In Opinion No. 8 of the Arbitration Commission of the Peace Conference on Yugoslavia3 (Opinion No. 8) handed down on 4 July 1992, the Badinter Commission ruled that the process of dissolution was ‘now complete and that SFRY no longer exists’ and ‘that it no longer [has] legal personality’. In support of that conclusion the Badinter Commission referred to the following factors. First, there was the plebiscite on sovereignty and independence in Bosnia-Hercegovina in late February 1992. Second, there was the view that Serbia and Montenegro had since constituted themselves as a new state, the Federal Republic of Yugoslavia (FRY). Third, there was the fact that most of the states seceding from the SFRY had recognized each other and, in the cases of Slovenia, Croatia and Bosnia-Hercegovina, gained widespread international recognition and admission to membership of the UN. This supported the assertion that the authority of the federal state was not exercised over the territories of the seceding republics, which were now sovereign and independent. Fourth, was the fact that the new states accounted for the ‘greater part of the territory and population’ of the SFRY. Fifth, was the view that federal bodies in the SFRY no longer existed. Sixth, was the fact that a number of UN Security Council Resolutions and a European Council Declaration on Yugoslavia of 27 June 1992 had referred to ‘the former’ Yugoslavia. Finally, there was the generally accepted view that the FRY could not automatically continue the UN membership of the SFRY.’ Resolving disputes with war crimes also damages the reconciliation process between each of these countries. Moreover, the freedom of movement or the returns of property are other burning issues which have potential of creating conflicts between the successor states. Therefore there is a clear indication of the tussle between the people and institutions who advocate prosecution of war crimes and people who oppose the prosecution of war crimes. Hence the ICTY needs to carefully handle this political and ideological tussle. Jan Koehler et al (2003, p.58) states ‘According to the United Nations High Commissioner for Refugees (UNHCR) Officers who served in the area during the Bosniak–Croat War soon after the establishing of the Hague War Crimes Tribunal, the Mayor of the west Herzegovinian town of Capljina began to refer international officials to his Deputy, Krunoslav Kordic when approached about the concentration camp for Bosniaks. Markovic claimed he was not responsible. The reaction was the severance of formal chains of command to Bosnian Croats and a switch to an increasingly clandestine manipulation of Herceg-Bosnian politics. It is difficult to imagine that the dismantling of official channels of authority would not also result in a consequent loss of power. A similar concealing, blurring and conscious dissolution of organized command can be suspected as having taken place at all levels of politics. However, the observation that decision makers do occasionally conceal authority, even at the cost of effectively dismantling the chain of command, can be accepted as valid for the situation with which Herceg-Bosna is currently confronted.’ The jurisdiction of International Criminal Tribunal for the former Yugoslavia is limited to crimes committed in any of the regions of former Yugoslavia and the jurisdiction is also limited to the prosecution of war crime perpetrators during the time of the Milosevic era. The ICTY was founded under the Security Council Resolution 827, on 25th May, 1993. The most important task of the ICTY has been to try the alleged individuals of war crimes and crimes against humanity such as genocide, which took place in Yugoslavia from 1991. The headquarters of the ICTY are The Hague, Netherlands. As of now, the ICTY has referred 13 accused to the jurisdiction of Bosnia and Herzegovina, it has indicted more than 150 people, and almost 50 people are now accused with twenty ongoing cases. Assessment One of the main difficulties of the ICTY is the struggle between justice and order. It is the predicament of reconciling these two values which is becoming a major hurdle for the ICTY. The states were worried about the values of sovereignty of former Yugoslavia. This sovereignty provision of Yugoslavia gave the country the right of being independent and non-intervention from other states should have been followed by the global community. On the other hand, the challenge for the global community and the ICTY was the upholding of the human rights norms which were legally codified. As such, the human rights as a part of international order, however in the past it wasn’t given as much of importance as the other order principles. Hence, the states after a long discussion in the U.N., decided that the situation in Yugoslavia was extraordinary and unique, and resultantly the ICTY was formed and it was given limited powers for dealing with certain vital issues which had been ignored in former Yugoslavia. The states were concerned that the unique an ad hoc nature of International Criminal Tribunal for the former Yugoslavia would allow other states to take advantage. The ICTY would therefore often accept compromise, when there was an issue of another state’s sovereignty. However it has been argued that the International Criminal Tribunal for the former Yugoslavia is extremely protective of its own sovereignty. States were also concerned that the establishment of the ICTY would be a precedent which would help the Security Council to occasionally setup ad hoc administrative and advisory bodies in other countries of the globe such as former Yugoslavia. The motives of establishing the ICTY make the extraordinary law situation in former Yugoslavia become ordinary. Now that the law situation has been ordinary, and no longer extraordinary, there are a number of concerns raised by the international community whether the ICTY should remain anymore in former Yugoslavia. Since, when the law and order situation is ordinary, it does not make sense to have an international organization present in that state. Yugoslavia also has a complaint against the United Nations. They had stated that the U.N. had intervened into the domestic affairs of Yugoslavia, and had surprisingly not intervened in worse law and order situations in other countries of the globe. Advocates and Opponents All in all, there have been several advocates of the effectiveness of ICTY, and there have been several opponents of ICTY too. The advocates believe that the ICTY has been successful in returning the rule of law and punishing the perpetrators of crime, whereas the opponents of the ICTY believes that the ICTY is responsible for the outbreak of the Civil War in the Yugoslav region. There has been this difference between the advocates and opponents, and this difference has escalated over the years. There has been a political status quo as a result of the debates and conflicts between these two groups. Advocates of the ICTY supported the idea that the successor states of Yugoslavia have to obey the demands and rulings of the ICTY. They also feel that democracy among the newly formed states would only be possible if they closely link themselves to the ICTY. This means that the states which do not comply with the conventions stated in the ICTY, are actually opposing the democratic process and standards. Therefore for the advocates, the ICTY serves as a vehicle for building democracy in the Yugoslav successor states. Therefore the role of the ICTY is much more than trying the perpetrators of what crimes and returning the properties of people. The ICTY becomes a replacement for the government of the state. Likewise, the opponents of the ICTY have the number of strong viewpoints. First of all, the opponents feel that the successor states have very little scope for participating in the functioning of the ICTY, an independent body which can make decisions which can go against the general policies of the Yugoslav successes states. They also feel that The Yugoslav successor states have often shown dissatisfaction of the verdicts and the implementation methods of the ICTY. The debate regarding the ICTY, especially in the post Milosevic era of Yugoslavia has complicated the last couple of years. Although it is agreed by opponents that the ICTY has very good standing with the NGO’s of the region and also a good relationship with the independent media, however the people from the public policy department are one of its most vocal opponents. Therefore the governments of the successor countries are not very satisfied with the workings of the ICTY. Although the opponents and the advocates differ in the number of points, they unanimously agreed on the issues which the ICTY is established to resolve. Work on issues such as the prosecution of the people who have been involved in the killing of civilians and torturing of prisoners and rape are acknowledged by both parties. Jan Koehler et al(2003, p.3) states ‘The most recent war so far in former Yugoslavia was the war over Kosovo, which was fought on the one hand between Serbs and Kosovo-Albanians in Kosovo, and on the other hand between NATO and Serbia. Raufer’s Chapter 3 in this volume treats one aspect of the Kosovo wars, namely the intertwining of political violence and organised crime. Mappes-Niediek’s Chapter 5 in this volume takes a broader perspective and sheds light on the process of restraint and eventual escalation of violence focusing on the organisational potential of the local population and the state in place. All of these conflicts are often labelled ‘ethno-political conflicts’. This term implies that at the core of the organisation of violence lies the political aspirations of ethnically defined groups. This is certainly not wrong: the slow decline and eventual collapse of the Soviet and the Yugoslav empires was partly triggered, partly accompanied by the quest for national sovereignty, put forward by the ideologists of many nationalities in the crumbling empires. However, the label ‘ethno-political’ is in some respects more deceptive than revealing. While all of these violent conflicts may have been fuelled by the aspirations of ethnically defined groups and their leaders, all were framed and shaped by the administrative–territorial borders of the crumbling empires. At the core of these conflicts lies the struggle over the status of territorial units, which formerly belonged to federal states. Thus, the label of ‘status conflict’ is probably more adequate than the label of ‘ethno-political conflict’. ICTY’s Achievements As an institution, the ICTY has been a trendsetting institution. It has paved the way for a number of subsequent institutions, and has been a perfect example of a tribunal which successfully deals with conflict resolutions and of post conflict development. Among the extensive amount of institutional and legal precedents that it has set, a few of its most pioneering achievements has been the expansion of the legal elements of crime, thereby clarifying the important breaches of the Geneva 1949 Conventions; it has also successfully identified international conflict and made a perfect definition of the protected category of people mentioned under the conventions. Secondly, the difference that existed between the customs of war in internal conflicts and the customs of foreign international conflicts has also been narrowed down by the ICTY. This is made the standardization of the common rules for protecting individuals possible. Thirdly, the torture which was common in international law were not only identified but has been prohibited by the policies of the ICTY. Fourthly, it has made a number of advances in the law pertaining to international humanitarianism. Especially the issues of punishment of sexual crimes during wartime have been successfully tackled by the policies of the ICTY. Additionally, crime of genocide has been effectively clarified and specified. The definition of target of genocide, or a group of people who are targets, has been properly identified by the ICTY. The crimes against humanity and its efforts in preventing such crimes has been another of the commendable achievements of the ICTY. It is now clearly stated that crimes against humanity cannot be committed even during an ongoing conflict, thereby widening the protection for civilians. Few more of the achievements of the International Criminal Tribunal for the former Yugoslavia have been the proper definition of persecution and enslavement pertaining to the crimes against humanity. This has helped in the first convictions since the Second World War for the enslavement of civilians. One of the other noteworthy achievements of the ICTY has been the modification of the tenet of criminal responsibility of superiors. This responsibility, also called command responsibility, allowed the perpetrators to take advantage of the loophole that is created by the superior-subordinate relationship. The level of knowledge required for committing a crime by a subordinate has also been modified, so as to make them responsible for the crimes. Finally, the ICTY also made major contributions in the issues related to procedural law. Some of the elements associated with the procedural law are the protective arrangements for the witnesses, the disclosure and confidentiality of the information, to protect the security of the states, and also the guilty pleas made by the accused. The ICTY has also helped in the establishment of a legal system which is unique and trendsetting, Conclusion As a tribunal, the ICTY has been the first tribunal which was established under the U.N. Charter’s Chapter VII. It has also been regarded as one of the first war crimes tribunals ever created. It has created a system of laws which are independent, and is comprised of elements from adversarial criminal procedures. The ICTY has also helped in the establishment of court for cities which are one of the most modern in the world, technical and layout equipments which are one of the best globally and which is often taken as models for other courtrooms of the world such as Special Court for Sierra Leone and the ICC. And besides, the immense contribution that the ICTY has made in maintaining the witnesses and the effective victim program has highly enriched the subsequent tribunals for war crime proceedings. The judicial database and jurisprudence which is soon to be available on the internet is another one of its invaluable contributions. Therefore, despite a few of its shortcomings and the accusations made by some of its opponents, the ICTY continues to be respected as the tribunal which has laid the foundations for the conflict resolution and post-conflict development norms throughout the world. All in all, the tribunal has proved once and for all that international justice is a reality. Bibliography Bodley, Anne 'Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the former Yugoslavia', New York University Journal of Law and Politics. 31(2), 1999, pp. 417-471. Bull, Hedley The Anarchical Society: A Study of Order in World Politics. (Basingstoke, London: Macmillan, 1995 Morris, Virginia and Michael P. Scharf (Eds.), An Insider's Guide to the International Criminal Tribunal for the former Yugoslavia: A Documentary History and Analysis. Vol. 2. Irvington-on-Hudson, New York: Transnational Publishers, 1995. Radan, Peter. The Break-up of Yugoslavia and International Law, London: Routledge, 2002 Virginia Morris, and Michael P. Scharf (Eds.), An Insider's Guide to the International Criminal Tribunal for the former Yugoslavia: A Documentary History and Analysis. Vol. 2. Irvington-on-Hudson, New York: Transnational Publishers, 1995 Zürcher, Christoph and Koehler, Jan, Potentials of Disorder, Manchester: Manchester University Press, 2003 Read More