International Criminal Tribunal for the former Yugoslavia

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands.

The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crimes committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences.

The final indictments were issued in December 2004, the last of which were confirmed and unsealed in the spring of 2005. The Tribunal aims to complete all trials by the end of 2012 and all appeals by 2015, with the exception of Radovan Karadžić whose trial is expected to end in 2014 and recently arrested Ratko Mladić and Goran Hadžić.

The United Nations Security Council called upon the Tribunal to finish its work by 31 December 2014 to prepare for its closure and transfer of its responsibilities to the International Residual Mechanism for Criminal Tribunals which will begin functioning for the ICTY branch on 1 July 2013. The Tribunal will conduct and complete all outstanding first instance trials, including those of Radovan Karadžić, Ratko Mladić and Goran Hadžić. It will conduct and complete all appeal proceedings for which the notice of appeal against the judgement or sentence is filed before 1 July 2013. Any appeals for which notice is filed after that date will be handled by the Residual Mechanism. Hadžić became the last of 161 indicted fugitives to be arrested after Serbian President Boris Tadić announced his arrest on 20 July 2011.

Creation
Of the total number of judgments issued by the International Criminal Tribunal for the former Yugoslavia, 96.80% was issued to the Serbs. United Nations Security Council Resolution 808 of 22 February 1993 decided that "an international tribunal shall 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" and calling on the Secretary-General to "submit for consideration by the Council … a report on all aspects of this matter, including specific proposals and where appropriate options … taking into account suggestions put forward in this regard by Member States".

The Court was originally proposed by German Foreign Minister Klaus Kinkel. By 25 May 1993, the international community had tried to pressure the leaders of the former Yugoslavian republics diplomatically, militarily, politically, economically, and – with Resolution 827 – through juridical means. Resolution 827 of 25 May 1993 approved report S/25704 of the Secretary-General and adopted the Statute of the International Tribunal annexed to it, formally creating the ICTY. It would have jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws and customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment.

Implementation
In 1993, the ICTY built its internal infrastructure.

17 states have signed an agreement with the ICTY to carry out custodial sentences

1993-1994: In the first year of its existence, the Tribunal laid the foundations for its existence as a judicial organ. The Tribunal established the legal framework for its operations by adopting the rules of procedure and evidence, as well as its rules of detention and directive for the assignment of defense counsel. Together these rules established a legal aid system for the Tribunal. As the ICTY is part of the United Nations and as it was the first international court for criminal justice, the development of a juridical infrastructure was considered quite a challenge. However after the first year the first ICTY judges had drafted and adopted all the rules for court proceedings.

1994-1995: The ICTY established its offices within the Aegon Insurance Building in The Hague (which was, at the time, still partially in use by Aegon) and detention facilities in Scheveningen in The Hague (The Netherlands). The ICTY hired now many staff members. By July 1994 there were sufficient staff members in the office of the prosecutor to begin field investigations and by November 1994 the first indictment was presented and confirmed. In 1995, the entire staff numbered more than 200 persons and came from all over the world. Moreover, some governments assigned their legally trained people to the ICTY.

Operation
In 1994 the first indictment was issued against the Bosnian-Serb concentration camp commander Dragan Nikolić. This was followed on 13 February 1995 by two indictments comprising 21 individuals which were issued against a group of 21 Bosnian-Serbs charged with committing atrocities against Muslim and Croat civilian prisoners. While the war in the former Yugoslavia was still raging, the ICTY prosecutors showed that an international court was viable. However, no accused was arrested.

The court confirmed 8 indictments against 46 individuals and issued arrest warrants. Duško Tadic´ became the subject of the Tribunal's first trial. The Bosnian-Serb Duško Tadić was arrested by German police in Munich in 1994 for his alleged actions in the Prijedor region in Bosnia-Herzegovina (especially his actions in the Omarska, Trnopolje and Keraterm detention camps). Tadic´ made his initial appearance before the ICTY Trial Chamber on 26 April 1995 and pleaded not guilty to all of the charges in the indictment.

1995-1996: Between June 1995 and June 1996, 10 public indictments had been confirmed against a total of 33 individuals. Six of the newly indicted persons were transferred in the Tribunal's detention unit. In addition to Duško Tadic, by June 1996 the tribunal had Tihofil Blaškic, Dražen Erdemovic, Zejnil Delalic, Zdravko Mucic, Esad Landžo and Hazim Delic in custody. The accused Erdemovic became the first person to enter a guilty plea before the tribunal's court. Between 1995 and 1996, the ICTY also dealt with miscellaneous cases involving several detainees - Djukic, Krsmanovic, Kremenovic, Lajic - which never reached the trial stage. Some of the accused had been arrested and others surrendered to the ICTY. However, most of the new states that came out of Yugoslavia - most notably Serbia and the Serbian entity in Bosnia-Herzegovina - refused to cooperate with the international tribunal.

Accomplishments
In 2004, the ICTY published a list of five successes which it claimed it had accomplished:


 * 1) "Spearheading the shift from impunity to accountability", pointing out that, until very recently, it was the only court judging crimes committed as part of the Yugoslav conflict, since prosecutors in the former Yugoslavia were, as a rule, reluctant to prosecute such crimes;
 * 2) "Establishing the facts", highlighting the extensive evidence-gathering and lengthy findings of fact that Tribunal judgments produced;
 * 3) "Bringing to justice thousands of victims and giving them a voice", pointing out the large number of witnesses that had been brought before the Tribunal;
 * 4) "The accomplishments in international law", describing the fleshing out of several international criminal law concepts which had not been ruled on since the Nuremberg Trials;
 * 5) "Strengthening the Rule of Law", referring to the Tribunal's role in promoting the use of international standards in war crimes prosecutions by former Yugoslav republics.

Organisation
The Tribunal employs around 900 staff. Its organisational components are Chambers, Registry and the Office of the Prosecutor (OTP).



Prosecutors
The Prosecutor is responsible for investigating crimes, gathering evidence and prosecutions and is head of the Office of the Prosecutor (OTP). The Prosecutor is appointed by the UN Security Council upon nomination by the UN Secretary-General.


 * The first Chief Prosecutor at the ICTY was Ramon Escovar Salom who served at the court from 1993-1994.
 * He was succeeded by South African jurist, Richard Goldstone who became Chief Prosecutor from 1994-1996.
 * Louise Arbour was then appointed as the third Chief Prosecutor from 1996-1999.
 * Carla Del Ponte then became Chief Prosecutor from 1999-2007.

The current prosecutor is Serge Brammertz. Previous Prosecutors have been Ramón Escovar Salom of Venezuela (1993–1994), Richard Goldstone of South Africa (1994–1996), Louise Arbour of Canada (1996–1999), Eric Östberg of Sweden, and Carla Del Ponte of Switzerland (1999–2007), who until 2003, simultaneously served as the Prosecutor of the International Criminal Tribunal for Rwanda where she led the OTP since 1999. David Tolbert, the President of the International Center for Transitional Justice, was also appointed Deputy Prosecutor of the ICTY.

Chambers
Chambers encompasses the judges and their aides. The Tribunal operates three Trial Chambers and one Appeals Chamber. The President of the Tribunal is also the presiding Judge of the Appeals Chamber.

Judges
There are 19 permanent judges and three ad litem judges who serve on the Tribunal.

UN member and observer states can each submit up to two nominees of different nationalities to the UN Secretary-General. The UN Secretary-General submits this list to the UN Security Council which selects from 28 to 42 nominees and submits these nominees to the UN General Assembly. The UN General Assembly then elects 14 judges from that list. Judges serve for 4 years and are eligible for re-election. The UN Secretary-General appoints replacements in case of vacancy for the remainder of the term of office concerned.

On 19 October 2011, Judge Theodor Meron (United States) was elected the new President of the ICTY by the permanent judges in a Special Plenary Session. Judge Carmel Agius (Malta) was elected Vice-President. His predecessors were Antonio Cassese of Italy (1993–1997), Gabrielle Kirk McDonald of the United States (1997–1999), Claude Jorda of France (1999–2002), Theodor Meron of the United States (2002–2005), Fausto Pocar of Italy (2005–2008) and Patrick Robinson of Jamaica (2008-2011).

Registry
The Registry is responsible for handling the administration of the Tribunal; activities include keeping court records, translating court documents, transporting and accommodating those who appear to testify, operating the Public Information Section, and such general duties as payroll administration, personnel management and procurement. It is also responsible for the Detention Unit for indictees being held during their trial and the Legal Aid program for indictees who cannot pay for their own defence. It is headed by the Registrar, currently John Hocking of Australia (since May 2009). His predecessors were Hans Holthuis of the Netherlands (2001–2009), Dorothée de Sampayo Garrido-Nijgh of the Netherlands (1995–2000), and Theo van Boven of the Netherlands (February 1994 to December 1994).

Detention facilities
Those defendants on trial and those who were denied a provisional release are detained at the United Nations Detention Unit on the premises of the Penitentiary Institution Haaglanden, location Scheveningen, located some 3 km by road from the courthouse.

The indicted are housed in private cells which have a toilet, shower, radio, satellite TV, personal computer (without Internet access) and other comforts. They are allowed to phone family and friends daily and can have conjugal visits. There is also a library, a gym and various rooms used for religious observances. The inmates are allowed to cook for themselves. All of the inmates mix freely and are not segregated on the basis of nationality; Serbian and Bosnian Muslim detainees now reportedly share friendly chess and backgammon games and watch film screenings. As the cells are more akin to a university residence instead of a jail, some have derisively referred to the ICT as the “Hague Hilton”.

The reason for this luxury relative to other prisons is that the first president of the court wanted to emphasise that the indictees are innocent until proven guilty.

Indictees
The very first hearing at the ICTY was referral request in the Tadić case on 8 November 1994. , the Tribunal has indicted 161 individuals, and has already completed proceedings with regard to 97 of them: 17 have been acquitted, 67 sentenced, 13 have had their cases transferred to courts in Bosnia and Herzegovina (10), Croatia (2) and Serbia (1). Another 36 cases have been terminated either because indictments were withdrawn or because the indictees died before or after transfer to the Tribunal. 48 of the 67 convicted were transferred to 13 different states where they served their prison sentences&mdash;sentences handed out to the rest of the convicted indictees amounted to time spent in detention during trial. 34 have served their term, and 3 died while serving their sentences.

The indictees ranged from common soldiers to generals and police commanders all the way to Prime Ministers. Slobodan Milošević was the first sitting head of state indicted for war crimes. Other "high level" indictees included Milan Babić, former President of the Republika Srpska Krajina; Ramush Haradinaj, former Prime Minister of Kosovo; Radovan Karadžić, former President of the Republika Srpska; Ratko Mladić, former Commander of the Bosnian Serb Army and Ante Gotovina, former General of the Croatian Army.

Haradinaj's trial began at The Hague on 5 March 2007 and the closing brief was given on 23 January 2008. The final decision of the ICTY was expected in March 2008. On 3 April 2008, ICTY issued a public notice of the Haradinaj verdict, in which he was acquitted of all charges. The judge said much of the evidence had been non-existent against Haradinaj or at best inconclusive. But he also complained of witness intimidation, saying some witnesses had not testified because they had been afraid. On 21 July 2010, the cases of UÇK (Kosovo Liberation Army) commanders Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj were re-opened for trial. However on 29 November 2012 all three were acquitted of all charges for a second time.

, there were seven ongoing trials. Five further cases are at the appeals stage&mdash;Đorđević, Perišić, Popović et al, Šainović et al and Tolimir cases. A further 23 individuals have also been the subject of contempt proceedings. Croat Serb General and former President of the Republic of Serbian Krajina Goran Hadžić became the last fugitive wanted by the Tribunal to be arrested on 20 July 2011.

Criticism
Skeptics argued that an international court could not function while the war in the former Yugoslavia was still going on. This would be a huge undertaking for any court, but for the ICTY it would be an even greater one, as the new tribunal still needed judges, a prosecutor, a registrar, investigative and support staff, an extensive interpretation and translation system, a legal aid structure, premises, equipment, courtrooms, detention facilities, guards and all the related funding.

Criticisms levelled against the court include:
 * Moscow has criticised the ICTY has being ineffective, costly and politically motivated, “The tribunal has long discredited itself and Šešelj’s case is just one more proof of that. Even Carla del Ponte admitted that the case against him was politically motivated,”
 * On 6 December 2006, the Tribunal at The Hague approved the use of force-feeding of Serbian politician Vojislav Šešelj. They decided it was not "torture, inhuman or degrading treatment if there is a medical necessity to do so...and if the manner in which the detainee is force-fed is not inhuman or degrading".
 * Reducing the indictment charges - after the arrest of Ratko Mladić, Croatian officials publicly condemned chief prosecutor Serge Brammertz for his announcement that the former Bosnian Serb General will be on trial only for crimes committed in Bosnia, but not for those crimes committed in Croatia (Škabrnja massacre, shelling of Zadar, Šibenik, Požega, Kijevo as well as the destruction of the Peruća dam).
 * Critics have questioned whether the Tribunal exacerbates tensions rather than promotes reconciliation, as is claimed by Tribunal supporters. Polls show a generally negative reaction to the Tribunal among the Serb and Croat public. The majority of Croats and Serbs doubt the tribunal's integrity and question the tenability of its legal procedures (although the Serbian and Croatian opinions on the court are almost always exactly the opposite with regard to the cases that involve both parties).
 * Critics, even within the United Nations, have complained of the Tribunal's high cost. The two-year budget for the Tribunal for 2004 and 2005 was $271,854,600 (currently $0 million). The cost is borne by all U.N. members.
 * 68% of indictees have been Serbs (or Montenegrins), to the extent that a sizeable portion of the Bosnian Serb and Croatian Serbian political and military leaderships have been indicted. Many have seen this as reflecting bias, while the Tribunal's defenders have seen this as indicative of the actual proportion of crimes committed. However, Marko Attila Hoare observed how, apart from Milošević, only Momčilo Perišić (Chief of the General Staff of the Yugoslav Army) has been indicted from the Serbian military or political top when it comes to wars in Croatia and Bosnia.
 * According to Attila Hoare, a former employee at the ICTY, an investigative team worked on indictments of senior members of the ‘joint criminal enterprise’, including not only Milosevic but also Veljko Kadijevic, Blagoje Adzic, Borisav Jovic, Branko Kostic, Momir Bulatovic and others. However, upon Carla del Ponte’s intervention, these drafts were rejected, and the indictment limited to Milosevic alone, as a result of which most of these individuals were never indicted.
 * Allegations of censorship - in July 2011, the Appeals Chamber of ICTY confirmed the judgment of the Trial Chamber which found journalist and former Tribunal’s OTP spokesperson Florence Hartmann guilty of contempt of court and fined her €7,000. She disclosed documents of FR Yugoslavia’s Supreme Defense Council meetings and criticized the Tribunal for granting confidentiality of some information in them to protect Serbia’s ‘vital national interests' during Bosnia's lawsuit against the country for genocide in front of the International Court of Justice. Hartmann argued that Serbia was freed of charge of genocide because ICTY redacted some information in the Council meetings. Since these documents have in the meantime been made public by the ICTY itself, a group of organizations and individuals who supported her said that the Tribunal in this appellate proceedings "imposed a form of censorship aimed to protect the international judges from any form of criticism".
 * Klaus-Peter Willsch compared the Ante Gotovina verdict, where the late Croatian president Franjo Tuđman was posthumously found to have been participating in a Joint Criminal Enterprise, with the 897 Cadaver Synod trial in Rome, when Pope Stephen VI had the corpse of Pope Formosus exhumed, put on trial and posthumously found guilty.
 * Too mild sentences - some circles, even within the Tribunal, complained at small sentences of convicted war criminals in comparison with their crimes. In 2010, Veselin Šljivančanin's sentence for his involvement in the Vukovar massacre was cut from 17 to 10 years, which caused outrage in Croatia. Upon hearing that news, Dr. Vesna Bosanac, in charge of the Vukovar hospital during the fall of the city, said that the "ICTY is dead" for her: "For crimes that he [Šljivančanin], had committed in Vukovar, notably at Ovcara, he should have been jailed for life. I'm outraged...The Hague(-based) tribunal has showed again that it is not just a tribunal." Danijel Rehak, the head of Croatian Association of Prisoners in Serbian Concentration Camps, said: "The shock of families whose beloved ones were killed at Ovcara is unimaginable. The court made a crucial mistake by accepting a statement of a JNA officer to whom Sljivancanin was a commander. I cannot understand that." Pavle Strugar's 8-year sentence for shelling of Dubrovnik, a UNESCO World Heritage Site, also caused outrage in Croatia. Judge Kevin Horace Parker has even been named in a Croatian Journal as the main cause of failure of the system because he dismissed numerous testimonies of witnesses.

Some of the defendants, such as Slobodan Milošević, claimed that the Court has no legal authority because it was established by the UN Security Council instead of the UN General Assembly, therefore it had not been created on a broad international basis. The Tribunal was established on the basis of Chapter VII of the United Nations Charter; the relevant portion of which reads "the Security Council can take measures to maintain or restore international peace and security". The legal criticism has been succinctly stated in a Memorandum issued by Austrian Professor Hans Köchler, which was submitted to the President of the Security Council in 1999. British Conservative Party MEP Daniel Hannan has called for the court to be abolished, claiming that it is anti-democratic and a violation of national sovereignty.

The interactive thematic debate on the role of international criminal justice in reconciliation was convened on 10 April 2013 by the President of the General Assembly during the resumed part of the GA's 67th Session. The debate was scheduled after Ante Gotovina and Mladen Markač were acquitted in November 2012 for inciting war crimes against Serbs in Croatia. The ICTY president Theodor Meron announced that all three Hague war-crimes courts turned down the invitation of UNGA president to participate in the debate about their work. President of the General Assembly described Meron's refusal to participate in this debate as scandalous. He emphasized that he does not shy away from criticizing the ICTY which has "convicted nobody for inciting crimes committed against Serbs in Croatia." Tomislav Nikolić, the president of Serbia criticized the work of ICTY emphasizing that it did not contribute but hindered the reconciliation in former Yugoslavia. He reminded that, although there is no significant ethnic disproportion among the number of casualties in the Yugoslav wars, the ICTY sentenced Serbs to 1,150 years in prison while members of other ethnic groups are sentenced to 55 totally for crimes against Serbs. Vitaly Churkin, the ambassador of Russia to the UN, also criticized the work of the ICTY, especially acquittals of Gotovina and Ramush Haradinaj. He emphasized that in this cases the justice has not been satisfied because in this cases nobody was convicted for evident crimes.

Response to Criticism
Supporters of the work of the ICTY responded with to critics in various publications. In a response to David Harland's New York Time opinion, entitled "Selective Justice," Jelena Subotic, the assistant professor of political science at Georgia State University and author of “Hijacked Justice: Dealing with the Past in the Balkans, responded that the critics of the Tribunal miss the point, "which is not to deliver justice for past wrongs equally for 'all sides,' fostering reconciliation, but to carefully measure each case on its own merits." She stressed that "We should judge the work of the tribunal by its legal expertise, not by the political outcomes we desire."

On the other hand, Dr Marko Hoare explained that the accusations of Tribunal's "selective justice" are stemming from Serb nationalist propaganda. He wrote:

"This is, of course, the claim that hardline Serb nationalists and supporters of Slobodan Milosevic have been making for about the last two decades. Instead of carrying out any research into the actual record of the ICTY in order to support his thesis, Harland simply repeats a string of cliches of the kind that frequently appear in anti-Hague diatribes by Serb nationalists."

Human Rights activist Ina Vukic, stressed that: "Convictions in criminal courts only deal with justice and reality, or evidence. And the evidence so far assessed in ICTY has reflected the reality that was: Serb aggression – most brutal at that. It is only logical that there will be more Serbs than any other ethnic group represented in convictions dealing with that war."