The violent rupture of Yugoslavia in the early 1990s included gross human rights violations, ethnic cleansing, and genocide as the former communist country fractured along ethnic lines. Yugoslavia’s collapse challenged the international community to address the atrocities that paramilitary arms of the warring Serb, Croat, and Muslim factions committed during the conflict.
In response, the United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY)—the first international war crimes tribunal commissioned since the Nuremberg trials—to prosecute crimes committed against civilians by military personnel during the Bosnian war. Now, after having served as a source of international justice for victims for nearly a quarter of a century, the ICTY is set to close within the year. A review of the tribunal’s history and operation over the past twenty-four years reveals many ground-breaking prosecutions that have significantly added to international human rights and humanitarian law and, along with the International Criminal Tribunal for Rwanda (ICTR), changed the way the international community holds war criminals accountable for their crimes.
The U.N. created the tribunal through the ICTY statute, pursuant to which the tribunal has jurisdiction over “individual persons and not organisations, political parties, army unites, administrative entities or other legal subjects” who committed war crimes in the former Yugoslavia since 1991. The former Yugoslavia consists of seven nations: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, Slovenia, and most recently Kosovo, which declared independence from Serbia in 2008. The U.N. mandate for the ICTY gives the tribunal jurisdiction over “grave breaches of the Geneva Conventions of 1949,” which includes the killing, torture, or unlawful imprisonment of civilians during war by an invading power. The statute also gives the tribunal authority to prosecute “violations of the laws or customs of wars,” genocide, and crimes against humanity.
Since 1993, the ICTY has been at the forefront of developing international human rights law. In 1998, for example, the ICTY held that rape is torture under customary international law, stating that “the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity.” Then, in 2001, the ICTY became the first court in history to rule that sexual enslavement is a violation of the well-established crime against humanity of enslavement and forced servitude. The ruling came in the Kunrac et al. verdict where the ICTY tried and convicted Bosnian Serb army officers for forcing Muslim women into sexual slavery during the occupation of Foca in 1992.
The ICTY has charged over seventy people with crimes against humanity for gender violence, convicting nearly thirty of them. These convictions are significant because prior to the formation of the ICTY and the ICTR, no international criminal body had ever prosecuted military commanders for rape or crimes of gender violence. The ICTY also conducted the first war crimes trial that examined sexual violence committed against men in 1997 when it tried Dusko Tadic for cruel and inhumane treatment of male prisoners of war. The tribunal ruled that Tadic’s participation in the sexual humiliation of detainees at the Omarska Concentration Camp qualified as cruel and inhumane treatment and a violation of international customary law of war.
In addition to trail-blazing sexual violence cases, the ICTY also established case precedent for the customary international humanitarian law principle of command responsibility. The command responsibility principle holds high level military leaders accountable for implementing policies which encourage lower level soldiers to engage in actions that violate international humanitarian law, including rape and genocide. The ICTY used this principle to prosecute military commanders that directed or carried out crimes against civilian populations. Based on this principle, the ICTY prosecuted General Radislave Krstic for the Srebrenica massacres in July 1995, in which Serb forces led by General Krstic executed between 7,000 and 8,000 Bosnian Muslim prisoners. The tribunal also prosecuted former Serbian president Slobodan Milosevic for crimes against humanity and genocide, although Milosovic was never convicted as he died unexpectedly during his trial.
Unlike most institutions, the ICTY is closing because of its accomplishments. From its headquarters in The Hague, the ICTY is executing a completion strategy for the tribunal’s closure, which the UN Security Council set out in 2004 in Resolution 1534. Resolution 1534 outlines the three-phase plan for completion and prioritizes remaining prosecutions. The original strategy provided end dates for the investigative work of the tribunal, original prosecutions, and completion of all tribunal work.
The completion strategy lays out the timeline for the ICTY’s closure. The plan aimed for the tribunal to complete investigations by 2004, first instance trials by 2008, and all work by 2010. The ICTY met its investigations goal, but its prosecutions and ultimate closure were significantly delayed because several of the 161 people the ICTY indicted were fugitives. When the last fugitive, Goran Hadzic, was arrested in July 2011, the ICTY fulfilled its goal of bringing all indicted individuals to trial. Nonetheless, the search for fugitives combined with the complexity of cases and the appeals process led to the extension of the ICTY’s mandate in July 2009, and the need to complete the ICTY’s mission led to the extension of the mandate every year since then.
The completion strategy also mandates that the ICTY focus on prosecuting “the most senior leaders” suspected of engaging in atrocities under the ICTY’s jurisdiction. Lower level offenders are to be referred to domestic courts within the former Yugoslavia. The tribunal has been working with local jurisdictions to transfer cases to local courts to empower the post-conflict justice system in the former Yugoslavia.
Finally, in December of 2016, the ICTY officially ended its last complete trial—the Ratko Mladic case. Ratko Mladic was a fugitive for fourteen years, which delayed his prosecution. Although the trial is complete, the ICTY has yet to completely close this case as Mladic is entitled to an appeals process. Prlić et al is the second case still active at the ICTY. Trial judgments of guilty were entered against defendants and the case is currently being appealed, a final judgment is expected in November.
On December 19, 2016, the United Nations Security Council unanimously adopted Resolution 2329, which extended the mandate for the ICTY. The resolution extended the terms of ICTY judges until November 30, 2017, or “until the completion of their cases.” In addition, the resolution extended the term of the President of the ICTY, Judge Carmel Agius, until December 31, 2017, or until one month after completion of all ICTY cases. This is the final extension of the ICTY’s mandate as proceedings of two more cases are still ongoing and are expected to be resolved by November 2017.
The ICTY’s closure does not, however, spell the end for victims of the Balkans war, rather it signals the shift of justice to local jurisdictions. The goal of an international tribunal is to provide justice to communities that have been devastated by war, and the goal is for local jurisdictions to take on the burden of bringing wrongdoers to justice. Judicial bodies specifically for crimes committed during the Balkans’ wars have been established in Serbia, Croatia, and Bosnia and Herzegovina; thus, the ICTY’s greatest contribution to international justice is closing its doors and empowering local communities to continue the continue to work toward justice.