The International Criminal Tribunal for the Former Yugoslavia (ICTY)

The International Criminal Tribunal for the former Yugoslavia (ICTY) is the first truly international criminal court to hold individuals accountable for the most serious crimes recognized by the international community. The ICTY was established by the United Nations Security Council in May 1993 to bring to justice those responsible for committing genocide, crimes against humanity and war crimes in the territory of the former Yugoslavia since 1991. The seat of the Tribunal is The Hague.

Why is the Tribunal needed?

In the early 1990s, after the collapse of the Yugoslav communist regime, political instability and longstanding inter-ethnic rivalry combined to cause the outbreak of civil war in Bosnia and Croatia. The greatest suffering fell upon civilians who were regularly the subject of brutal attacks by soldiers, paramilitary groups and police. Most horrifying was the death and destruction affected through the genocidal policy known as “ethnic cleansing.” Over 250,000 were killed and 1 million displaced as sub-state ethnic forces asserted their autonomy and acted on expansionist aims. In this state of war and violence it was hoped that an international criminal tribunal would assist in the effort to restore peace and security and deter further atrocities. Only through this mechanism could the perpetrators of the mass human rights violations be held accountable and justice be brought to the victims. This work continues today.

How was the Tribunal established?

The atrocities, in particular the horrific practice of “ethnic cleansing”, caused an international outcry - these were the kinds of mass human rights violations that literally “shocked the conscience of mankind.” As the record of atrocities grew, so did the belief that those responsible must be held accountable. The novel establishment of a UN war crimes tribunal was the result of the international community’s view that finally “something must be done”. In 1992, having already determined that the situation constituted a threat to international peace and security, the Security Council passed Resolution 771. By that resolution, the Council determined that those who committed or order the commission of grave breaches of the Geneva Conventions were individually responsible for such breaches and called on the international community to cooperate in the collection of evidence. Following this, the Council asked the Secretary General to commission a group of experts to examine the evidence. In response to the experts’ report, the Security Council decided to create an international tribunal and asked the Secretary General to draw up a proposal for its establishment. Finally, on May 25, 1993, as the violence continued, the Security Council acted under Chapter VII of the UN Charter to pass Resolution 827 and bring the Statute of the ICTY into force. It is this resolution, which binds all UN Member States, that gives the Tribunal’s orders the force of law throughout the world.

What is the nature of the ICTY’s jurisdiction and trial process?

The ICTY has jurisdiction to prosecute individuals for “serious violations of international humanitarian law”, namely, grave breaches of the Geneva Conventions of 1949 (Article 2), violations of the laws or customs of war (Article 3), genocide (Article 4) and crimes against humanity (Article 5). The Tribunal’s jurisdiction is limited to crimes committed on the territory of the former Yugoslavia. While recognition of the successor states of Yugoslavia is a matter of dispute, the geographic area within jurisdiction includes what has become known as Bosnia and Herzegovina, Serbia and Montenegro, Croatia, Kosovo, Macedonia and Slovenia. Jurisdiction runs from January 1, 2025 until a date to be determined once peace is secured and full responsibility for judicial administration can be handed back to the relevant states.

The ICTY has concurrent but primary jurisdiction over other courts, both in the former Yugoslavia and around the world (Article 9). This means that domestic courts can prosecute individuals for crimes falling within the Tribunal’s jurisdiction, but that the ICTY has the power to request national courts stay their proceedings, in the interests of international justice, and transfer the accused to the Tribunal for prosecution. Once the Tribunal has tried an individual, that individual cannot be tried again on the same charges by national courts (Article 10). However, where individuals have been tried in domestic courts, they may be tried again by the ICTY if the domestic trial did not meet the requisite standards of impartiality and independence, or where the charges did not correspond to the crimes within the Tribunal’s jurisdiction (for example, a domestic prosecution for multiple counts of assault rather than war crimes). In that event, the Tribunal will take into account any penalty imposed by the national court in determining sentence.

The trial process combines inquisitorial aspects of the civil law system and adversarial aspects of the common law system. Trials are conducted in accordance with the internationally recognized standards of due process contained in the Rules of Evidence and Procedure. However, a trial can only commence once the Tribunal secures the presence of the accused - the Statute does not permit trials in absentia. Once an indictment is finalized, an arrest warrant is issued. But in the absence of an “international police force”, the ICTY is dependent on international cooperation for the apprehension and transfer of accused persons. The tribunal similarly requires international cooperation for the collection of evidence, freezing of assets of indictees, the relocation of vulnerable witnesses and the enforcement of orders and sentences. If an accused is found guilty and sentenced, the sentence can be served in countries that have concluded agreements with the ICTY for that purpose. States that have done so include Denmark, Germany, Spain, France, Sweden, Austria, Norway, Finland and Italy. The maximum sentence is life imprisonment.

The judges

Originally, there were 11 judges divided into two Trial Chambers (comprising three judges each) and an Appeals Chamber (comprising seven judges, only five of which sit on any one appeal). However, given the increase in the Tribunal’s case-load, this has been expanded to 16 full time judges and a maximum of nine ad litem (temporary) judges which can be drawn from a pool of 27 such judges. There are now three Trial Chambers, each of which can be divided into “sections” comprising three judges (either permanent or ad litem) to hear cases (Article 12). The judges are elected by the UN General Assembly for four-year terms (Articles 13bis and 13ter). To be elected, judges must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices” (Article 13). No two permanent judges, and no two ad litem judges, may be of the same nationality. Permanent judges, but not ad litem judges, may be re-elected.

How is the ICTY organized?

The Tribunal employs well over one thousand people from approximately 80 nations. All its activities are funded out of Member States’ voluntary and assessed contributions to the UN, as well as some private and NGO support. The budget of the Tribunal has been steadily growing, from US$ 276,200 in 1993 to US$ 96,443,900 in 2001. In addition to the judicial chambers, the Tribunal has two other main organs: the Office of the Prosecutor and the Registry.

The Office of the Prosecutor has three main duties: 1) investigating crimes, including collecting evidence, identifying witnesses and exhuming mass graves, 2) preparing indictments (charges), and 3) presenting the prosecution’s case before the Tribunal. The Prosecutor is independent of the Security Council or any state or other international organization and may initiate investigations at her own discretion or on the basis of information provided by individuals, governments, international organizations or NGOs.

The administrative and managerial arm of the Tribunal is the Registry, which has responsibility for scheduling hearings, translating proceedings and filing and archiving legal documents. Beyond these basic administrative tasks, the Registry contains a number of specialized units. For example, the Witnesses and Victims Support Section provides support to this vulnerable group before, during and after proceedings, to ensure that testimony is given freely and without endangering the witness or victim. The Defence Council Unit is responsible for providing legal aid. While accused persons remain free to retain counsel of their own choosing, where they cannot afford legal representation they may be assigned counsel at the Tribunal’s expense. In that case, an accused may choose counsel from a list of names maintained by the Registry. The Registry also manages the Detention Unit where individuals are held following their arrest and until they are either acquitted and released or found guilty and transferred to the jurisdiction in which they are to serve out their sentence.

Has the Tribunal fulfilled its mandate?

There is no doubt that the ICTY has made an enormous contribution to international criminal and humanitarian law. Prior to the establishment of the Tribunal, many important legal questions had never fallen for determination or had lain dormant since the Nuremberg and Tokyo trials. Notable judgments have addressed the application of the Geneva Conventions, the interpretation of rape as a war crime and a crime against humanity, the application of humanitarian law to internal armed conflict, and the clarification of the nature of individual criminal responsibility (especially in relation to superior orders, duress and command responsibility).

Individuals that have been or are being investigated or prosecuted include those from all the relevant ethnic, political, economic and social backgrounds. By October 2002, 112 individuals had been indicted by the ICTY: 27 were deceased or had their indictments dropped, 35 were in custody awaiting trial, 9 had been temporarily released pending trial, 8 were released after trial, 5 were serving sentences, and 25 remained at large, including Bosnian Serb Leader Radovan Karadzic and Bosnia Serb General Ratko Mladic, both of whom have been charged with genocide among other crimes. Currently the Tribunal is hearing the trial of Slobodan Milosevic, the former President of the Federal Republic of Yugoslavia.

Even though the majority of the violence has ended, the ICTY continues to administer justice for the victims and survivors of these international crimes. As the ongoing trial mechanism that holds perpetrators accountable for their actions, the ICTY remains an indispensable part of the effort to bring lasting peace and reconciliation to the war-torn region. Given the fragile peace that currently exists, the residual ethnic tension and the poor judicial and executive infrastructure in the newly emerging states, it is not yet possible to hand to domestic courts and prosecutors the responsibility of carrying out fair, independent and impartial trials of those suspected of committing heinous international crimes.

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