International Criminal Tribunal for the former Yugoslavia
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|International Criminal Tribunal
for the former Yugoslavia
Logo of the Tribunal
|Established||25 May 1993|
|Location||The Hague, Netherlands|
|Authorized by||United Nations Security Council Resolution 827|
|Judge term length||Four years|
|Number of positions||16 permanent
12 ad litem
|Website||Official website of ICTY|
|Currently||Carmel Agius (Malta)|
|Since||17 November 2015|
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 Yugoslav Wars, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, 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 or 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.
A total of 161 persons were indicted; the final indictments were issued in December 2004, the last of which were confirmed and unsealed in the spring of 2005. The final fugitive, Goran Hadžić, was arrested on 20 July 2011.
The ICTY is slated to close upon the completion of the remaining trials of first instance (as of July 2016[update], there are two—those of Hadžić and Ratko Mladić) and any appeal proceedings that had been initiated prior to 1 July 2013 (as of July 2016[update], there is a single case involving six individuals). Any appeal proceedings initiated since 1 July 2013 have been under the jurisdiction of a successor body, the Mechanism for International Criminal Tribunals.
- 1 History
- 2 Organization
- 3 Indictees
- 4 Criticism
- 5 See also
- 6 References
- 7 Further reading
- 8 External links
Yugoslav Wars and Genocide
The former state of Yugoslavia was divided into separate republics, leading to a war that caused severe civilian casualties on all sides. When discussing the events of the 1990s, historians and sociologists have used the phrases war crimes and genocide to describe the actions of military leaders, especially those of Croatia and Bosnia. The term genocide is often controversial – and is separate in meaning to mass killing – because it implies the killing and displacement of an entire ethnic, national, racial, religious or political group  During the Yugoslav Wars the Srebrenica Massacre became the most infamous systematic killing of a religious group on European soil since the Holocaust. At least 7,475 Muslim men, women and children were killed by Serbian paramilitary troops.
Coined after World War Two by Rafael Lemkin and adopted by the United Nations General Assembly in 1948, the term "genocide" has developed into one of the most crucial laws of international co-operation. In its brief history in international law, the understanding of genocide has helped lawmakers create a reasonable method for prosecuting accused perpetrators of “the crimes of crimes” as stated by historian William Schabas  which has led to the creation of Tribunals, such as the ICTY.
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 S/25704 report 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 or customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment.
In 1993, the ICTY built its internal infrastructure. 17 states have signed an agreement with the ICTY to carry out custodial sentences.
1993-94: 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.
1994-95: 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.
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. Bosnian Serb indictee Duško Tadić became the subject of the Tribunal's first trial. 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). He made his first appearance before the ICTY Trial Chamber on 26 April 1995, and pleaded not guilty to all of the charges in the indictment.
1995–96: 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 Tihomir Blaškić, Dražen Erdemović, Zejnil Delalić, Zdravko Mucić, Esad Landžo and Hazim Delić in custody. Erdemović became the first person to enter a guilty plea before the tribunal's court. Between 1995 and 1996, the ICTY dealt with miscellaneous cases involving several detainees, which never reached the trial stage. Some of the accused had been arrested and others surrendered to the ICTY.
- "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;
- "Establishing the facts", highlighting the extensive evidence-gathering and lengthy findings of fact that Tribunal judgments produced;
- "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;
- "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;
- "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.
The United Nations Security Council passed resolutions 1503 in August 2003 and 1534 in March 2004, which both called for the completion of all cases at both the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR) by 2010.
In December 2010, the Security Council adopted Resolution 1966, which established the Mechanism for International Criminal Tribunals (MICT), a body intended to gradually assume residual functions from both the ICTY and the ICTR as they wound down their mandate. Resolution 1966 called upon the Tribunal to finish its work by 31 December 2014 to prepare for its closure and transfer of its responsibilities.
In a Completion Strategy Report issued in May 2011, the ICTY indicated it aimed to complete all trials by the end of 2012 and all appeals by 2015, with the exception of Radovan Karadžić whose trial was expected to end in 2014 and Ratko Mladić and Goran Hadžić, who were at large at that time and were not arrested until later that year.
The MICT's ICTY branch began functioning on 1 July 2013. In accordance with the Transitional Arrangements adopted by the UN Security Council, the ICTY will conduct and complete all outstanding first instance trials, including those of Karadžić, Mladić and Hadžić. The ICTY will conduct and complete all appeal proceedings for which the notice of appeal against the judgement or sentence was filed before 1 July 2013. Any appeals for which notice is filed after that date will be handled by the MICT.
The Tribunal employs around 900 staff. Its organisational components are Chambers, Registry and the Office of the Prosecutor (OTP).
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 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 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.
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 21 October 2015, Judge Carmel Agius of Malta was elected President of the ICTY and Liu Daqun of China was elected Vice-President; they will assume their new positions on 17 November 2015. His predecessors were Antonio Cassese of Italy (1993–97), Gabrielle Kirk McDonald of the United States (1997–99), Claude Jorda of France (1999–2002), Theodor Meron of the United States (2002–05), Fausto Pocar of Italy (2005–08), Patrick Robinson of Jamaica (2008–11), and Theodor Meron (2011–15). Gabrielle Louise McIntyre served as the Chef de Cabinet to four successive Presidents of the ICTY: Judge Theodor Meron (two periods of two consecutive terms each), Judge Fausto Pocar, and Judge Patrick Lipton Robinson.
|Name||State||Position(s)||Term began||Term ended|
|Abi-Saab, GeorgesGeorges Abi-Saab||Egypt||Permanent||17 November 1993||1 October 1995|
|Afande, KoffiKoffi Afande||Togo||Permanent||12 December 2013||In office|
|Cassese, AntonioAntonio Cassese||Italy||Permanent / President (former)||17 November 1993||17 February 2000|
|Deschênes, JulesJules Deschênes||Canada||Permanent||17 November 1993||1 May 1997|
|Karibi-Whyte, AdolphusAdolphus Karibi-Whyte||Nigeria||Permanent / Vice-President (former)||17 November 1993||16 November 1998|
|Le Foyer De Costil, GermainGermain Le Foyer De Costil||France||Permanent||17 November 1993||1 January 1994|
|Li Haopei||China||Permanent||17 November 1993||6 November 1997|
|McDonald, GabrielleGabrielle McDonald||United States||Permanent / President (former)||17 November 1993||17 November 1999|
|Odio Benito, ElizabethElizabeth Odio Benito||Costa Rica||Permanent / Vice-President (former)||17 November 1993||16 November 1998|
|Sidhwa, RustamRustam Sidhwa||Pakistan||Permanent||17 November 1993||15 July 1996|
|Stephen, NinianNinian Stephen||Australia||Permanent||17 November 1993||16 November 1997|
|Vohrah, Lal ChandLal Chand Vohrah||Malaysia||Permanent||17 November 1993||16 November 2001|
|Jorda, ClaudeClaude Jorda||France||Permanent / President (former)||19 January 1994||11 March 2003|
|Riad, FouadFouad Riad||Egypt||Permanent||4 October 1995||16 November 2001|
|Jan, Saad SaoodSaad Saood Jan||Pakistan||Permanent||4 September 1996||16 November 1998|
|Shahabuddeen, MohamedMohamed Shahabuddeen||Guyana||Permanent / Vice-President (former)||16 June 1997||10 May 2009|
|May, RichardRichard May||United Kingdom||Permanent||17 November 1997||17 March 2004|
|Mumba, FlorenceFlorence Mumba||Zambia||Permanent / Vice-President (former)||17 November 1997||16 November 2005|
|Nieto Navia, RafaelRafael Nieto Navia||Colombia||Permanent||17 November 1997||16 November 2001|
|Ad litem||3 December 2001||5 December 2003|
|Rodrigues, AlmiroAlmiro Rodrigues||Portugal||Permanent||17 November 1997||16 November 2001|
|Wang Tieya||China||Permanent||17 November 1997||31 March 2000|
|Robinson, PatrickPatrick Robinson||Jamaica||Permanent / President (former)||16 October 1998||8 April 2015|
|Bennouna, MohamedMohamed Bennouna||Morocco||Permanent||16 November 1998||28 February 2001|
|Hunt, DavidDavid Hunt||Australia||Permanent||16 November 1998||14 November 2003|
|Wald, PatriciaPatricia Wald||United States||Permanent||17 November 1999||16 November 2001|
|Liu Daqun||China||Permanent / Vice-President (current)||3 April 2000||In office|
|Agius, CarmelCarmel Agius||Malta||Permanent / President (current); Vice-President (former)||14 March 2001||In office|
|Fassi-Fihri, MohamedMohamed Fassi-Fihri||Morocco||Ad litem||14 March 2001||16 November 2001|
|10 April 2002||1 November 2002|
|Meron, TheodorTheodor Meron||United States||Permanent / President (former)||14 March 2001||In office|
|Pocar, FaustoFausto Pocar||Italy||Permanent / President (former)||14 March 2001||In office|
|Güney, MehmetMehmet Güney||Turkey||Permanent||11 July 2001||30 April 2015|
|Clark, MaureenMaureen Clark||Ireland||Ad litem||6 September 2001||11 March 2003|
|Diarra, FatoumataFatoumata Diarra||Mali||Ad litem||6 September 2001||11 March 2003|
|Janu, IvanaIvana Janu||Czech Republic||Ad litem||6 September 2001||11 September 2004|
|Singh, AmarjeetAmarjeet Singh||Singapore||Ad litem||6 September 2001||5 April 2002|
|Taya, ChikakoChikako Taya||Japan||Ad litem||6 September 2001||1 September 2004|
|Williams, SharonSharon Williams||Canada||Ad litem||6 September 2001||17 October 2003|
|de Zoysa Gunawardana, AsokaAsoka de Zoysa Gunawardana||Sri Lanka||Permanent||4 October 2001||5 July 2003|
|El Mahdi, AminAmin El Mahdi||Egypt||Permanent||17 November 2001||16 November 2005|
|Kwon, O-GonO-Gon Kwon||Korea, South||Permanent / Vice-President (former)||17 November 2001||31 March 2016|
|Orie, AlphonsAlphons Orie||Netherlands||Permanent||17 November 2001||In office|
|Schomburg, WolfgangWolfgang Schomburg||Germany||Permanent||17 November 2001||17 November 2008|
|Lindholm, Per-JohanPer-Johan Lindholm||Finland||Ad litem||10 April 2002||17 October 2003|
|Vasylenko, VolodymyrVolodymyr Vasylenko||Ukraine||Ad litem||10 April 2002||25 January 2005|
|Argibay, CarmenCarmen Argibay||Argentina||Ad litem||5 November 2002||18 January 2005|
|Martín Canivell, JoaquínJoaquín Martín Canivell||Spain||Ad litem||2 May 2003||27 September 2006|
|Weinberg de Roca, InésInés Weinberg de Roca||Argentina||Permanent||17 June 2003||15 August 2005|
|Antonetti, Jean-ClaudeJean-Claude Antonetti||France||Permanent||1 October 2003||31 March 2016|
|Rasoazanany, VonimbolanaVonimbolana Rasoazanany||Madagascar||Ad litem||17 November 2003||16 March 2006|
|Swart, AlbertusAlbertus Swart||Netherlands||Ad litem||1 December 2003||16 March 2006|
|Parker, KevinKevin Parker||Australia||Permanent / Vice-President (former)||8 December 2003||28 February 2011|
|Thelin, KristerKrister Thelin||Sweden||Ad litem||15 December 2003||10 July 2008|
|Van Den Wyngaert, ChrisChris Van Den Wyngaert||Belgium||Permanent||15 December 2003||31 August 2009|
|Bonomy, IainIain Bonomy||United Kingdom||Permanent||7 June 2004||31 August 2009|
|Brydensholt, HansHans Brydensholt||Denmark||Ad litem||21 September 2004||30 June 2006|
|Eser, AlbinAlbin Eser||Germany||Ad litem||21 September 2004||30 June 2006|
|Hanoteau, ClaudeClaude Hanoteau||France||Ad litem||25 January 2005||27 September 2006|
|Szénási, GyörgyGyörgy Szénási||Hungary||Ad litem||25 January 2005||30 May 2005|
|Vaz, AndrésiaAndrésia Vaz||Senegal||Permanent||15 August 2005||31 May 2013|
|Moloto, BakoneBakone Moloto||South Africa||Permanent||17 November 2005||In office|
|Höpfel, FrankFrank Höpfel||Austria||Ad litem||2 December 2005||3 April 2008|
|Nosworthy, JanetJanet Nosworthy||Jamaica||Ad litem||2 December 2005||26 February 2009|
|Prandler, ÁrpádÁrpád Prandler||Hungary||Ad litem||7 April 2006||7 June 2013|
|Trechsel, StefanStefan Trechsel||Switzerland||Ad litem||7 April 2006||7 June 2013|
|Mindua, AntoineAntoine Mindua||Congo, Democratic Republic of the||Ad litem||25 April 2006||In office|
|Chowhan, Ali NawazAli Nawaz Chowhan||Pakistan||Ad litem||26 June 2006||26 February 2009|
|Kamenova, TsvetanaTsvetana Kamenova||Bulgaria||Ad litem||26 June 2006||26 February 2009|
|Prost, KimberlyKimberly Prost||Canada||Ad litem||3 July 2006||31 March 2010|
|Støle, OleOle Støle||Norway||Ad litem||13 July 2006||10 June 2010|
|Harhoff, FrederikFrederik Harhoff||Denmark||Ad litem||9 January 2007||28 August 2013|
|Lattanzi, FlaviaFlavia Lattanzi||Italy||Ad litem||2 July 2007||31 March 2016|
|David, PedroPedro David||Argentina||Ad litem||27 February 2008||13 September 2011|
|Gwaunza, ElizabethElizabeth Gwaunza||Zimbabwe||Ad litem||3 March 2008||8 June 2013|
|Picard, MichèleMichèle Picard||France||Ad litem||3 March 2008||8 June 2013|
|Kinis, UldisUldis Kinis||Latvia||Ad litem||10 March 2008||18 April 2011|
|Flügge, ChristophChristoph Flügge||Germany||Permanent||18 November 2008||In office|
|Baird, MelvilleMelville Baird||Trinidad and Tobago||Ad litem||15 December 2008||31 March 2016|
|Hall, BurtonBurton Hall||Bahamas, The||Permanent||7 August 2009||In office|
|Morrison, HowardHoward Morrison||United Kingdom||Permanent||31 August 2009||31 March 2016|
|Delvoie, GuyGuy Delvoie||Belgium||Permanent||1 September 2009||In office|
|Nyambe, PriscaPrisca Nyambe||Zambia||Ad litem||1 December 2009||18 December 2012|
|Ramaroson, ArletteArlette Ramaroson||Madagascar||Permanent||19 October 2011||21 December 2015|
|Khan, KhalidaKhalida Khan||Pakistan||Permanent||6 March 2012||21 December 2015|
|Tuzmukhamedov, BakhtiyarBakhtiyar Tuzmukhamedov||Russia||Permanent||1 June 2012||21 December 2015|
|Sekule, WilliamWilliam Sekule||Tanzania||Permanent||18 March 2013||30 April 2015|
|Niang, MandiayeMandiaye Niang||Senegal||Permanent||30 October 2013||31 March 2016|
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).
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 luxuries. 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. 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.
The very first hearing at the ICTY was referral request in the Tadić case on 8 November 1994.
- 104 have had their trials completed by the ICTY:
- 19 have been acquitted;
- 83 have been convicted and sentenced
- 80 were transferred to 14 different states where they served their prison sentences, or had sentences that amounted to time spent in detention during trial:
- 18 remain imprisoned;
- 55 completed their sentences;
- 7 died while completing their sentences or after conviction awaiting transfer
- 2 were convicted and sentenced, and now await transfer
- 1 was convicted and sentenced, but has filed an appeal to the MICT
- 80 were transferred to 14 different states where they served their prison sentences, or had sentences that amounted to time spent in detention during trial:
- 2 were convicted by the ICTY, but granted a retrial on appeal under the auspices of the MICT
- 13 have had their cases transferred to courts in:
- Bosnia and Herzegovina (10);
- Croatia (2); and
- Serbia (1)
- 36 had their cases terminated prior to trial completion, because
- the indictments were withdrawn (20); or
- the indictees died before or after transfer to the Tribunal (16).
Proceedings for the remaining 8 indictees are still ongoing at the ICTY — 2 indictees are in the trial phase and 6 indictees are before the Appeals Chamber.
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.
As of July 2016[update], the trials of Goran Hadžić and Ratko Mladić are incomplete; the Mladić case is in the process of judgement by the courts, while the Hadžić case is in an adjournment for reasons related to the accused's health.
A single case encompassing six individuals is at the appeals stage.
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 of the court include:
- 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 tried solely for crimes allegedly committed in Bosnia, not in Croatia.
- Critics[who?] 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 both Serbs and Croats. A majority of Serbs and Croats have expressed doubts regarding the ICTY's integrity and question the tenability of its legal procedures.
- 68% of indictees have been Serbs (or Montenegrins), to the extent that a sizeable portion of the Bosnian Serb and Croatian Serb 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 Hoare claimed that, aside from Milošević, only Momčilo Perišić (Chief of the General Staff of the Yugoslav Army), who was acquitted, has been indicted from the Serbian military or political top when it comes to wars in Croatia and Bosnia.
- According to Hoare, a former employee at the ICTY, an investigative team worked on indictments of senior members of the "joint criminal enterprise", including not only Milošević but also Veljko Kadijević, Blagoje Adžić, Borisav Jović, Branko Kostić, Momir Bulatović and others. However, Hoare claims that, due to Carla del Ponte's intervention, these drafts were rejected, and the indictment limited to Milošević alone.
- There have been 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 the charge of genocide because ICTY redacted certain 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". (France refused to extradite Hartmann to serve the prison sentence issued against her by the ICTY after she refused to pay the €7,000 fine.)
- Klaus-Peter Willsch compared the Ante Gotovina verdict, in which 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 convicted.
- Some sentences have been considered too mild sentences, 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, Vesna Bosanac, who had been 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 Ovčara, he should have been jailed for life. I'm outraged.... The Hague(-based) tribunal has showed again that it is not a just 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 Ovčara is unimaginable. The court made a crucial mistake by accepting a statement of a JNA officer to whom Šljivančanin 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 Parker (of Australia) was named in a Croatian journal (Nacional) as a main cause of the system's failure for having dismissed the testimonies of numerous 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 and so 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 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 the convictions of Ante Gotovina and Mladen Markač for inciting war crimes against Serbs in Croatia were overturned by an ICTY Appeals Panel in November 2012. 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. The President of the General Assembly[who?] described Meron's refusal to participate [clarification needed] 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 ICTY, claiming it did not contribute but hindered reconciliation in the former Yugoslavia. He added that although there is no significant ethnic disproportion among the number of casualties in the Yugoslav wars, the ICTY sentenced Serbs and ethnic Serbs to a combined total of 1150 years in prison while claiming that members of other ethnic groups have been sentenced to a total of 55 years for crimes against Serbs. Vitaly Churkin, the ambassador of Russia to the UN, criticized the work of the ICTY, especially the overturned convictions of Gotovina and Ramush Haradinaj.
Response to criticism
Supporters of the work of the ICTY responded to critics in various publications. In a response to David Harland's Selective Justice, Jelena Subotić, an 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 ... We should judge the work of the tribunal by its legal expertise, not by the political outcomes we desire."
Marko Hoare claims the accusations of the tribunal's "selective justice" stem from Serbian 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."
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Judge Schomburg however thinks that the punishment is not proportional to the crime and is not within mandate and spirit of this Tribunal. According to him, the crime to which Deronjić pleaded guilty "deserves a sentence of no less than twenty years of imprisonment". In a brief summary of his dissenting opinion that he read after pronouncing the sentence imposed by the majority, Judge Schomburg criticized the prosecution for having limited Deronjić's responsibility in the indictment to "one day and to the village of Glogova". Schomburg added that the "heinous and long-planned crimes committed by a high-ranking perpetrator do not allow for a sentence of only ten years", which, in light of his possible early release, could mean that the accused would spend only six years and eight months in prison. At the end of his dissenting opinion, Schomburg quoted a statement by one of Deronjić's victims. The victim said that his guilty plea "can heal the wounds" that the Bosniak community in eastern Bosnia still feels "provided that he is punished adequately". According to the victim, "a mild punishment would not serve any purpose".
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I will also convene several other high-level thematic debates in the months to come... our debates during the resumed part of the 67th Session.... Another will focus on the Role of International Criminal Justice in Reconciliation.External link in
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Jeremić scheduled the debate on "the role of international criminal justice in reconciliation“ after the ICTY acquitted [sic] two Croatian generals, Ante Gotovina and Mladen Markač, of war crimes during the conflict in Croatia in 1995.
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Not only the ICTY but all three war crimes tribunals turned down Jeremić's invitation, Meron said at a panel on the role of the Hague tribunals in the protection of human rights held at the Brookings Institution in Washington on Thursday.
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On je kao skandalozno ocenio to što se predsednik Haškog tribunala Teodor Meron nije odazvao pozivu da se pojavi u UN, pod čijim patronatom sud funkcioniše.
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- Topical digests of the case law of ICTR and ICTY, Human Rights Watch, 2004
- Hague Justice Portal: Academic gateway to The Hague organisations concerning international peace, justice and security.
- Calendar of court proceedings before the ICTY: Hague Justice Portal
- Why Journalists Should be Worried by the Rwanda Tribunal Precedents (deals also with ICTY) by Thierry Cruvellier for Reporters Without Borders
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- Complete web-based video archive of the Milosevic trial
- War Crimes, conditionality and EU integration in the Western Balkans, by Vojin Dimitrijevic, Florence Hartmann, Dejan Jovic, Tija Memisevic, edited by Judy Batt, Jelena Obradović, Chaillot Paper No. 116, June 2009, European Union Institute for Security Studies
- Introductory note by Fausto Pocar on the Statute of the International Criminal Tribunal for the former Yugoslavia in the Historic Archives of the United Nations Audiovisual Library of International Law
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- Lecture by Fausto Pocar entitled Completing the Mandate: The Legal Challenges Facing the International Criminal Tribunal for the former Yugoslavia in the Lecture Series of the United Nations Audiovisual Library of International Law
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