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