The International Court is the
judicial body that brings to justice individuals accused of
violation of the international law. The idea to create the court
arose after the end of the World War II and it is based on the
principle: all persons, including high-ranking state officials,
accused of committing serious international crimes must be punished.
International criminal tribunals
should not be considered in the same way as domestic or national
courts. When people hear the words “court” and “law” - they
immediately think it refers to national law, but they are wrong.
There is distinction even between personnel that works in
international and national courts, and much less in other
The paper will put a special
emphasis to the work of the ICTY, describing a number of positive as
well as the negative sides of the Court.
- The ICTY
established at the proposal of the UN Secretary General on the basis
of Resolution No. 827 of the UN Security Council of 25 May 1993. The
territorial jurisdiction of the Court covers the territory of the
former Socialist Federal Republic of Yugoslavia (hereinafter: the
former Yugoslavia), including its land surface, airspace and
territorial waters, while the temporal jurisdiction includes the
period from 1 January 1991, without indicating when the temporal
However, the UN
Security Council ordered to the Court to end its work by 2010, by
Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due
to the above mentioned reasons, the Court was supposed to put an end
to all investigations and filing all indictments by 2004; to end all
trials by 2008 and to end all appeal proceeding by 2010. However,
the year is 2015 and the ICTY has not ended its work. According to
some estimations given in December 2014, three out of four appeal
proceedings are expected to be completed during 2015, while the
judgment in the case of Ratko Mladic is expected to be rendered in
March 2017 or event after this date. However, addressing the UN
Security Council on 10 December 2014, President of the ICTY Theodor
Meron assured that these forecasts do not mean closure of the ICTY
The ICTY is an
court based in The Hague. The Court can prosecute
only individuals and not organizations or governments. The court can
impose life imprisonment as maximum penalty. As a result, the Court
signed an agreement with a number of countries, in order to enable
enforcement of the penalties on their territories.
Huge role of the
ICTY’s Trial Chamber significantly determines work of the ICTY and
it implies wide powers of arbitrators and initiative relating to
principles that the Court follows in its work are: justice, rapidity
and equality of arms.
The aim of
establishment of the ICTY is to bring to justice persons responsible
for serious violations of the international humanitarian law during
conflict in the area of the former Yugoslavia.
it was obvious that many actions of the conflicting sides, people
who fought within their ranks or who joined them, represent serious
crimes under domestic law or the international humanitarian law (the
former Yugoslavia ratified all the Geneva Conventions of 1949 and
their Protocols of 1977), almost none of the suspects for these
crimes was charged and brought to the Court until 1993”.
All violations that are put under
the jurisdiction of the ICTY and which represent violation of the
international humanitarian law committed in the former Yugoslavia,
are divided into:
- Grave breaches of the Geneva
Conventions of 1949;
- Violations of the laws or
customs of war;
The criminal defense of crime
against humanity exists under the following conditions:
- In case of an attack;
- If the accused committed the
crime as part of the attack;
- If the attack was directed
against any civilian population;If the attack was widespread or
- If the
accused knows that his acts are part of a pattern of widespread
or systematic crimes directed against a civilian population and
if he knows that his act fit in the pattern.
Regardless of the rules that
regulate work of the ICTY, its employees are faced with several
The first challenge
certainly refers to a rule that an individual may be punished for
grave breach of the Geneva Conventions under the Article 2 of the
Statute, only if the crime for which he is charged, was committed
against persons and property that are considered protected.
is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4
Paragraph 3 of the Statute. Namely, when the Court finds that the
accused person had no genocidal intent, but he or she helped others
to commit genocide, the question is which of these two provisions of
the Statute of the Court should be applied. The first Article
envisages responsibility for assisting in committing any criminal
offense put under the jurisdiction of the Court, while the second
complicity in genocide.
Court has the jurisdiction to act in case of committing any of the
criminal offenses listed in Article 5 of the Statute, but only if
the crimes were committed in an armed conflict. Therefore, an armed
conflict is a precondition for prosecution before the ICTY. At the
same time, the only Article of the Statute that relates to penalties
is the Article 24 that envisages the obligation of the Chamber when
sentencing, to take into account gravity of the defense and
individual circumstances of the perpetrator. However, the Article 2
of the Statute represents the biggest challenge and it envisages
that every crime regulated by this Article, shall be committed in
of the international armed conflict.
The first trial
before the ICTY started on 7 May 1996 and the first verdict was
rendered on 29 November 1996. So far, a total of 161 persons have
been indicted. Proceedings against 147 persons ended, while
proceedings against 14 persons are still ongoing.
- Legacy of the ICTY
The region of the
former Yugoslavia welcomed the establishment of the ICTY with great
suspicion, complaining that incompetent body has established the
Tribunal (the Security Council), and that the Court cannot be an
impartial judicial body, since it has been established as a
subsidiary body to the executive authority (the Security Council).
However, author of
this paper shares the standpoint of Dr.
Vojin Dimitrijevic, who says that
„in a sea of such attacks (...)
legitimate and legal reviews of critics about the way The Tribunal
has been established, the advisability of some of the provisions of
its Statute, the quality of the rules of procedure and so on, are
The author also shares Dimitrijevic’
stance that work
and existence of the ICTY should be seen as a “unique
judicial experience in the actual application of the international
humanitarian law, its written and unwritten rules and the very
Statute of the first international criminal Tribunal that, despite
of the fact that it has been formed on temporary basis as an ad hoc
court, has acted so long and prosecuted so many persons on various
posts for so many crimes that are considered international crimes”.
There is no doubt
that there are positive and negative aspects of the international
criminal proceedings led before all courts.
Positive sides of
the proceedings before the ICTY are certainly higher level of
impartiality, easier ways to collect evidence, uniformity in the
application of the international law and greater preventive effect
of international trials.
Namely, it is
logical that people who are not involved in a concrete dispute, i.e.
judges who are not related to armed conflicts will be more objective
to decide about the dispute. National courts are almost always
insufficiently objective, and these courts are not interested enough
to lead proceedings against its own nationals who have committed
crimes against foreign nationals. At the same time, the fact that
this is a proceeding led before an international court, proceedings
related to these and all other conflicts in the international
community are set to be uniform, with the continuity in application
of law and decision-making process.
proceeding before the ICTY does not fully meet all demands which the
right to fair trial puts before the Court, its practice gives hope
that the proceedings will get closer to the standards of the fair
The procedure led
before the ICTY is complex, but it was inevitable because it has
been established quickly as a reaction to the situation on the
ground (for example, the states harmonized their stances about
formation of the International Criminal Court for years). Principles
like the ones from the Geneva Conventions of 1949 (ratified by most
of the states in the world) would certainly remain only a dead
letter, if it was no courts like the ICTY. Namely, such courts
defined an armed conflict, defined when an armed conflict begins
One of the
important specifics that refer to international crimes is the
existence of a large number of victims. The procedural status of
victims and witnesses in criminal proceedings for these crimes is a
particular problem in international judiciary, because of direct or
indirect risk of intimidation, reprisal or retaliation against the
For these reasons,
rules of the ICTY include adequate provisions on protection of
victims and witnesses in the proceedings. Per example, such
provisions are stipulated in the rule that the main hearing will be
held without the presence of the public; the rule about the
protection of identity of the victims, and the rule on formation of
Department for Victims and Witnesses, as the body in charge to
provide support and advices to victims and witnesses and propose
measure for their protection.
The ICTY has
contributed to clarification of some basic concepts that are of huge
importance for the international criminal law and the international
humanitarian law. For example, the rule on the obligation to
distinguish civilians from combatants was clarified in the judgment
in the cases of Tadic,
Martic, and Kupreskic, while the rule to distinguish civilian from
military facilities was clarified in the judgment in cases of
Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and
defined torture, etc.
For the first time in the history, an
international court found that rape (although prohibited by
humanitarian law) may constitute torture. This is also the first
international court which included sexual violence as a crime
against humanity in its Statute.
Besides, the Court
also gave huge contribution to the interpretation of
of the Geneva Conventions.
According to the
current President of the ICTY Theodor Meron, the ICTY has
demonstrated to the world that, after half a century of impunity, it
is possible to lead complex trials at the international level, in
accordance with the highest international standards.
The ICTY has
developed an influential body of jurisprudence concerning a large
number of procedural issues and issues related to evidence and thus,
created conditions for establishment of new international and mixed
criminal courts. The support to strengthening of national judicial
systems relating to war crimes trials is certainly one of the most
positive things in the heritage of the ICTY.
Many criticize the
ICTY for the reason that all the accused have not been convicted
especially the ones who are accused of the crime of genocide.
However, the Convention on the Prevention and Punishment of the
Crime of Genocide of 1948 stipulates very strict conditions for
proving genocide. The Genocide
is a crime that
does not have to be committed during armed conflicts: the crime can
be committed in peacetime, during a war, against civilians and
against combatants, with or without committing widespread or
Under the Convention on the Prevention and
Punishment of the Crime of Genocide of 1948, “(...
genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group, as such:
(a) Killing members of the
(b) Causing serious bodily or
mental harm to members of the group;
(c) Deliberately inflicting on
the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended
to prevent births within the group;
transferring children of the group to another group.”
aforementioned definition reads,
it is a state of mind of the perpetrator of the crime of genocide
that matters (that he committed the crime with intention to destroy,
in whole or in part, a national, ethnical, racial or religious
group). Therefore, certain group and not individuals in the group
should be the main objective and likewise, the destruction should be
physical or biological nature, not cultural.
responsibility for the crime of genocide is harder than proving
responsibility for any other international crime.
Murders and other prohibited acts must be committed with the
intention to destroy, in whole or in part, a national, ethnical,
racial or religious group (dolus
If a prosecutor fails to prove that intention, it is considered a
crime against humanity or a war crime - and the ICTY is not
authorized to prosecute these crimes.
criticisms directed against work of the ICTY are addressed to the
President Theodor Meron,
an experienced US (Israeli) lawyer and a judge. Many believe that he
made terrible mistakes in individual trials which he chaired,
especially in the cases of Gotovina and Markac, Stanisic and
Simatovic and in a particularly interesting case from the legal
point of few – case of Momcilo Perisic.
The judgment in the case of Momcilo
Perisic has established a new legal standard of command
responsibility, providing amnesty to political leaders and military
commanders in case of committing war crimes in the future period.
Namely, the appeal judgment to Perisic has adopted the new
criterion which has not existed in the
international customary law. The question is whether court judgments
discourage future threats against human civilization or the
opposite? The UN Security Council has established the ICTY after
some people endangered peace and security of the civilizationand
nowadays, some experts believe that the ICTY turned into its
contradiction after Perisic’s acquittal,
and its decisions jeopardize international peace, security and
When it comes to
criticisms related to the impact of the Hague judgments to victims
of the conflict, we must take into account that, when it comes to
individual criminal responsibility, the ICTY is authorized to
prosecute the crimes, but it has no option to adjudicate adequate
compensation for victims of the crimes.
role of the ICTY is retributive: the Court renders a judgment and
defines whether someone is guilty for a certain crime or not, and
orders an appropriate penalty for the crime.
Of course, the ICTY
also has a restorative function and it aims to ensure
accountability, establish facts, bring justice for the victims and
give them the right to speak, enhance the rule of law and pawing a
way for reconciliation in the region. However, the ICTY is not
established to be a mean for bringing complete justice to the
victims and a mean to deal with the past.
Regardless of the
aforementioned facts, the ICTY has taken away from us the ability to
forget the past. The legacy of the ICTY is greater and more
significant than occasional mistakes and judgments rendered without
a legal explanation, while the Court will provide insight to future
generations into judgments and facts about the atrocities.
The abovementioned text has led us
to conclusion that, when it has established the ICTY, the
international community has directly contributed to sanctioning of
state policies and individuals responsible for initiation and
conduct of armed conflicts at the territory of the former
Yugoslavia. The paper also led us to conclusion that judgments
rendered by the ICTY have clarified some theoretical parts of the
international humanitarian law, international criminal law and the
international human rights law.
Despite of many criticisms directed
against the ICTY, the author of the paper believes that the ICTY has
registered more positive than negative results. Unreasonably high
expectations from work of the Court have been huge. At the end, when
a conflict starts and when crimes happen, people say nowadays: “Send
him to The Hague”, which was not the case a few years ago, when
there was no court authorized to prosecute the perpetrators.
There is no doubt that existence of
such a court is necessary and we could see it clearly in the case of
Leipzig in 1921, when Germans were allowed to trial to themselves on
their own. As a result, audience, judges, prosecutors greeted some
people who were accused of crimes when they entered a courtroom, not
to mention that all sanctions were minimal; two months, six months
and four years of imprisonment. Therefore, author of the paper
believes that foreign judges did not bring expertise in proceedings
related to this territory, but impartiality.
Author of the paper considers the
following facts as the greatest contributions of the ICTY:
- The ICTY is a legal body that
represents a basis for establishment of new judicial bodies;
- The ICTY revealed limitations
- The ICTY has left us legacy.
On the other hand, the fact that
the ICTY has primarily focused on jurisprudence and its impact,
without realizing how much it is important to reach out to the
victims, is the main deficiency of this body.
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The International Criminal Law,
Belgrade Center for Human Rights, Belgrade 2005
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Edition, The OSCE Mission to
Serbia, Belgrade, 2008
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Encyclopedic Dictionary of
International Law and International Relations,
Official Gazette, Belgrade, 2010
- Daily newspaper in BiH „Dnevni
Avaz“, XX, No. 6955, 19 December 2014
- The second-instance judgment
in the Tadic case, of 15 July 1999
- The ICTY,
- Report of the UN
Secretary-General, S / 257074, of 3 May 1993
- The Convention on the
Prevention and Punishment of the Crime of Genocide of 1948
- The Criminal Code of BiH (The
Official Gazette of BiH, No. 3/03, 32/03, 37/03, 54/04, 61/04,
30/05, 53/06, 55/06, 32/07, 08/10, 47/14, 22/15, 40/15)
- The Criminal Code of the
former Yugoslavia (The Official Gazette of the former
Yugoslavia, No. 44/76, 36/77, 56/77, 34/84, 37/84, 74/87, 57/89,
- The International Institute
for Middle East and Balkan Studies (IFIMES),
ICTY: ‘Meronization’ of our
future, Ljubljana, 20
- The case of the International
Criminal Tribunal for Rwanda ‘Prosecutor v. Jean-Paul Akayesu’,
Case No. 96-4-T, of 2 September 1998
- The Resolution of the UN
Security Council, No. S / RES / 827 (1993), adopted at the 3217th
session on 25 May 1993
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- The ICTY case ‘Prosecutor v.
Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic’, No.
IT-96-23 and 23/1, from 22 February 2001
- The ICTY case ‘Prosecutor v.
Radislav Krstic’, No. IT-98-33, of 2 August 2001
- Vecernji List,