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International Criminal Tribunal For The Former Yugoslavia - Description [2003] PICTRes 3 (5 September 2003)

International Criminal Tribunal For The Former Yugoslavia

The characteristics of the legal and institutional structure of the International Criminal Tribunal for the Former Yugoslavia (ICTY) -as well as those of the International Criminal Tribunal for Rwanda (ICTR) - cannot be properly understood without taking into consideration the circumstances in which the Security Council decided that an international tribunal should 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.

By the end of February 1993, the focus of the conflict ravaging the former Yugoslavia for more than 18 months had shifted from Slovenia to Croatia and then to Bosnia. Although the conflict was characterized from the very beginning by acute ferocity (particularly in Vojvodina and Eastern Slavonia), it was in Bosnia that the first signs of systematic ethnic cleansing (e.g., deportations, mass executions, mass sexual assaults and rapes, and concentration camps) leaked. In order to pressure the conflicting parties to comply with their obligations under international humanitarian law, in October 1992, the Security Council asked the UN Secretary General to establish a Commission of Experts to report on evidence of grave breaches of international humanitarian law in the former Yugoslavia. The results of the investigation spurred public outrage, especially among European countries, where memories of Nazi horrors were still alive, compelling their governments to call for the establishment of a new Nuremberg. 

The prodigious effort to establish the ICTY and its significance in the development of international law and the international judicial system cannot be overestimated. On February 22, 1993, with Resolution 808 the Security Council decided that an international criminal tribunal should be established and asked the UN Secretary General, Butros Butros Ghali, to prepare a report. In only 60 days, the Secretary General reported back to the Security Council with the Statute of the future ICTY, which was adopted without changes on May 25, 1993, by the Security Council, acting under Chapter VII of the UN Charter.

Although the Secretary General benefited in his work from the suggestions and drafts proposed by States, intergovernmental and non-governmental organizations, individuals, and the experience of the two military tribunals established in the aftermath of the second World War (the International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East), the expeditiousness with which a brand new international jurisdiction was created was unprecedented. No international criminal code existed (although various drafts and proposals had been circulated for several decades) and the few precedents could provide minimal guidance, at least because, unlike in the case of the Nuremberg and Tokyo tribunals, it was not a matter of victor's justice.  War was (and largely still is) being waged and the tribunal would have to function without effective control over the territories in which the evidence and the perpetrators of the crimes were to be found.

The Statute of the ICTY eventually left a deep imprint first and foremost on that of the ICTR (which was established in a like manner 18 months later), and then on that of the ICC, although several aspects differentiate the latter from the former tribunals. The structural similarities between the ICTY and the ICTR are numerous, including the fact the ICTY and the ICTR share the same Chief Prosecutor and the same Appeal Chamber. The affinity of the two institutions, often called the twin tribunals , also set them apart from all other international judicial bodies surveyed in this matrix.

Unlike all other bodies included in this compilation, the ICTY and the ICTR are ad hoc in nature. As enforcement measures under Chapter VII, the life span of each is linked to the restoration and maintenance of international peace and security in the territories of former Yugoslavia and Rwanda. Once the Security Council decides that peace and security have been re-established, they will be dissolved. Their establishment by a Security Council resolution (as opposed to an international agreement, as in the case of all other international judicial bodies) has three further consequences. Firstly, all member States of the United Nations are bound to comply with the requests and decisions of the tribunals (which makes them the fora with the largest footing and avoids the issue of States' consent, which cripples fora like the ICJ and the ITLOS). Secondly, unlike the Nuremberg and Tokyo tribunals, neither the ICTY nor the ICTR possess the means to bring an accused to trial of its own. However, non-compliant or even non-collaborative States can be referred to the UN Security Council for sanction. Thirdly, the ICTY and the ICTR are subsidiary organs of the Security Council within the terms of article 29 of the Charter. As such they are dependent on the UN in administrative and financial matters, although as judicial institutions, they are independent of any one State or group of States, including their parent body, the Security Council.

The single most important element that sets the ICTY and the ICTR apart (and for that matter also the ICC) from all other international judicial bodies, is that they are criminal courts . This has multiple implications. Firstly, it means that the parties to the judicial process are always, on the one hand individuals, as indictee , and on the other hand the Prosecutor. Secondly, unlike in the case of all other international judicial bodies, States and international organizations do not have standing. Individuals convicted of crimes of genocide or crimes against humanity are subject to criminal sanctions (i.e., serving jail periods up to life-sentencing). Accordingly, unlike all other international judicial fora, the ICTY and the ICTR have a special detention unit located at the Hague and in Arusha, respectively. Their statutes and rules of procedure and evidence provide elaborate protective measures for victims and witnesses, especially in cases of rape or sexual assault.

Finally, it should be mentioned that the jurisdiction of the ICTY and the ICTR is not exclusive but concurrent with that of national courts. However, both have primacy over national courts (something the ICC does not have). At any stage of the procedure, the two ad hoc international criminal tribunals may formally request the national courts to defer competence.

PICT Data obtained from the Project on International Courts and Tribunals (PICT)

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