ICTY and IRMCT

The Tribunal has issued indictments against 161 persons for crimes committed against thousands of victims in the former Yugoslavia.

The ICTY has indicted a Head of State, army chiefs, government ministers and other high and mid-level political and military leaders, among others. The Tribunal has ensured that the question is no longer whether leaders should be held accountable, but rather when they will be held accountable.

In holding individuals accountable for the commission of mass atrocities, the ICTY has shown that individual guilt and criminal responsibility can be established.

The Tribunal has provided thousands of victims with the opportunity to be heard. Many of them displayed exceptional courage in coming to the ICTY to testify, and by doing so they have contributed to the process of establishing the facts about events in the former Yugoslavia.

The Tribunal has encouraged judiciaries in the former Yugoslavia to continue the work of trying those responsible for war crimes. The Tribunal worked in partnership with domestic courts across the region by transferring evidence, knowledge and jurisprudence as part of its continuing effort to strengthen the rule of law.

The ICTY identified a general prohibition of torture in international law which cannot be derogated from by a treaty, domestic law or otherwise.

The ICTY applied the modern doctrine of criminal responsibility of superiors, so-called command responsibility. It has clarified that a formal superior-subordinate relationship is not necessarily required for criminal responsibility. In the same vein, the ICTY has removed uncertainty about the level of knowledge to be expected from a superior whose subordinates were about to commit crimes or committed them.

In April 2004, in the case of Radislav Krstić, the ICTY’s Appeals Chamber determined that the events of 1995 in Srebrenica, Bosnia, and Herzegovina were genocide. The ICTY thus became the first international criminal tribunal to enter convictions for genocide in Europe. Following its first genocide conviction, the ICTY has brought a range of judgments with regard to the genocide that influenced the characteristics and interpretation of this crime before the international justice and international courts.

The Joint Criminal Enterprise (JCE) a theory of liability has been most extensively elaborated by the ICTY judges. This doctrine considers each member of an organized group individually responsible for crimes committed by group within the common plan or purpose.

The JCE does not appear in the ICTY Statute. The first reference to JCE and its constituent elements were provided by the ICTY Appeals Chamber in the Tadić case in 1999. The Tadić Appeals Chamber recognised JCE as implicitly falling within the Statute based on the Appeals Chamber’s reading of the Statute’s object and purpose, which is described as ensuring that “all those who have engaged in serious violations of international humanitarian law, whatever the manner in which they may have been perpetrated, or participated in the perpetration of those violations, must be brought to justice.”  

The ICTY played a historic role in the prosecution of wartime sexual violence in the former Yugoslavia and has paved the way for a more robust adjudication of such crimes worldwide.

From the first days of the ICTY’s mandate, investigations were conducted into reports of systematic detention and rape of women, men and children. More than a third of those convicted by the ICTY have been found guilty of crimes involving sexual violence. Such convictions are one of the ICTY’s pioneering achievements. They have ensured that treaties and conventions which have existed on paper throughout the 20th century have finally been put in practice, and violations punished.

The ICTY was the first international criminal tribunal to enter convictions for rape as a form of torture and for sexual enslavement as crime against humanity, as well as the first international tribunal based in Europe to pass convictions for rape as a crime against humanity.

Ultimately, rape ceased to be perceived as the unrestrained sexual behaviour of individuals and was recognised as a powerful tool of war, used to intimidate, persecute and terrorise the enemy.

From its very first cases, the ICTY affirmed that the destruction of cultural heritage is a crime under international customary law. The ICTY also determined that systematic crimes against cultural heritage can amount to crimes against humanity, “for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects” (Trial Judgement in Kordić and Čerkez).

In accordance with its Statute, the ICTY had the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.

The ICTY had jurisdiction over natural persons (individuals, not organizations or groups) who allegedly committed any of the following crimes on the territory of the former Yugoslavia after January 1, 1991: 

1. Grave breaches of the Geneva Conventions of 1949
2. Violations of the laws or customs of war
3. Genocide  
4. Crimes against humanity

Grave breaches of the Geneva Conventions of 1949 (Article 2 of the ICTY Statute)

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement of a civilian;

(h) taking civilians as hostages.

Violations of the laws or customs of war (Article 3 of the ICTY Statute)

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or

buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and

education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

Genocide (Article 4 of the ICTY Statute)

1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

2. 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 group;

(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;

(e) forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

(a) genocide;

(b) conspiracy to commit genocide;

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide;

(e) complicity in genocide.

Crimes against humanity (Article 5 of the ICTY Statute)

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts.

A person who planned, instigated, ordered, committed, or otherwise aided and abetted in the

planning, preparation, or execution of crimes within the scope of the ICTY jurisdiction was individually responsible for the crime.

The official position of any accused person, whether as Head of State or Government or as a

responsible Government official did not relieve such person of criminal responsibility nor mitigate punishment.

The territorial jurisdiction of the International Tribunal was extended to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace, and territorial waters.

The temporal jurisdiction of the International Tribunal was extended to a period beginning on 1 January 1991.

The Tribunal consisted of three organs: Chambers, the Office of the Prosecutor (OTP), and the Registry. In addition, because of the integral role of the Defence in proceedings before the Tribunal, the Association of Defence Counsel practicing before the International Courts and Tribunals (ADC-ICT), a formally recognized, independent association of Counsel practicing before the Tribunal, was created.

Criminal proceedings were governed by the Tribunal’s Rules of Procedure and Evidence (Rules). These Rules regulated the conduct of the proceedings, ensured that the rights of the accused are respected, and provided for appropriate protective measures for victims and witnesses. The authority for the drafting and amendment of the Rules lied with the Tribunal’s Judges and the Rules reflected both common and civil law traditions, highlighting the Tribunal’s international character.

 A convicted person could be sentenced to imprisonment for a term up to and including a life sentence. The ICTY did not have the death penalty. Prison sentences are served in one of the countries which have entered into an enforcement agreement with the ICTY to accept convicted persons.

The ICTY’s Detention Unit (DU) was under the supervision of the Tribunal’s Registry and located within a Dutch prison complex in the Scheveningen neighbourhood of The Hague.

The unit housed those persons accused by the ICTY Prosecution after they have been transferred to The Hague to stand trial and sentenced persons before their transfer to the country where they will serve prison sentence.