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New Developments in the International Criminal Tribunal for the Former Yugoslavia: Prominent Leaders Indicted and Jurisdiction Established

Published online by Cambridge University Press:  21 July 2009

Rodney Dixon
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Extract

The first indictments against high-ranking political and military leaders were issued by the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) on 25 July 1995. Those indicted include Radovan Karadžić, the President of the Bosnian Serb Administration of Pale;Ratko Mladić, the commander of the army of the Bosnian Serb Administration;and Milan Martic, the President of the former Croatian Serb Administration of Knin. On the same day, the defence motion challenging the jurisdiction of the ICTY to try the accused currently before it, Dusko Tadicwas argued before the Trial Chamber. On 10 August 1995, this motion was dismissed.These recent developments, amongst others, are the culmination of the Prosecution's work in confronting the immense challenges of this unique international jurisdiction. Although the task is far from complete, the achievements to date provide a stable foundation upon which to progress with confidence. This article will comment on the significance of these new developments.

Keywords

command responsibilityindictmentsInternational Criminal Tribunal for the Former Yugoslaviainternational humanitarian lawjurisdiction.
Type
International Criminal Tribunal for the Former Yugoslavia
Information
Leiden Journal of International Law , Volume 8 , Issue 2 , Autumn 1995 , pp. 449 - 461
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1995

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References

1. On 8 November 1994 the Security Council by way of Resolution 955 (1994) established a second ad hoc tribunal to prosecute persons responsible for genocide and other serious violations committed in the territory of Rwanda, and Rwandan citizens responsible for the same offenses in the territory of neighbouring states, between 1 January 1994 and 31 December 1994. The intention is that the work of the two tribunals should be complementary, and accordingly, Justice Richard Goldstone, the Prosecutor for the ICTY, has also been appointed as the Prosecutor for the Rwanda Tribunal, and the same Appeal Chamber will serve both tribunals.

2. See Arts. 2–5 of the Statute of the ICTY, UN Doc. S/25704 (1993).

3. The first accused to be indicted was Dragan Nikolić, commander of a camp at Susica in northeastern Bosnia-Herzegovina. It is alleged that as many as 8,000 Muslim civilians passed through the camp in 1992, many of whom were tortured, mistreated, raped, and murdered. The indictment wasconfirmed on 4 November 1994. On 13 February 1995, two further indictments were confirmed. In the one indictment, 19 accused were charged with committing various atrocities in 1992 against civilian prisoners held at Omarska, a camp run by Bosnian Serbs in the Prijedor district. The second indictment charged two accused, one of whom is Dusko Tadić,with unlawfully killing, assaulting, and raping civilians inside and outside of the Omarska Camp. On 25 July 1995, three further indictments were issued. Firstly, 13 accused were charged for war crimes committed in the Keraterm Camp, located outside the town of Prijedor, where more than 3,000 Bosnian Muslims and Croats were unlawfully confined by Bosnian Serb forces.The commander of the camp, Dusko Sikirica, has been charged with the crime of genocide.Secondly, six senior Serb political leaders of the town and municipality of Bosanski Samac were charged for crimes committed after the military takeover by the Bosnian Serbs of this area in northern Bosnia. It is alleged that a campaign of terror was waged against non-Serb civilians,which included deportations, mass killings, torture, and sexual assaults. Lastly, two persons were indicted for crimes committed in the Luka detention camp in Brcko. One of the commanders of the camp, Goran Jelisic, who referred to himself as the ‘Serb Adolf, has been charged with the crime of genocide.

4. Press Statement by the Prosecutor in conjunction with the announcement of the indictments on 25 July 1995.

5. In contrast, the indictment of Milan Martić specifically focuses on the ‘cluster-bomb’ attacks on three Croatian cities, including Zagreb, during May 1995, in retaliation for the earlier attack in Western Slavonia by the Croatian Army upon the armed forces of the former Serbian-held Krajina.

6. Rule 9 reads as follows: “[w]here it appears to the Prosecutor that in any […] investigation or criminal proceedings instituted in the courts of any State: (i) the act being investigated […] is characterized as an ordinary crime; (ii) there is a lack of impartiality or independence, or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; or (iii) what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal, the Prosecutor may propose to the Trial Chamber […] that a formal request be made that such court defer to the competence of the Tribunal.”

7. In this application, the investigation of the Bosnian Government into Mico Stanisić, the former head of the Bosnian Serb special police, was also deferred to the ICTY. The ICTY's investigation concerning Stanisic and other senior Bosnian Serb military and civilian officials is still proceeding, and further indictments could be forthcoming in the near future.

8. Various investigations are also being conducted by the Prosecution into allegations of violations of humanitarian law involving Bosnian government forces.

9. See Press Statement, supra note 4.

10. See Parks, W.H., Command Responsibility for War Crimes, 62 Military Law Review 1 (1973).Google Scholar

11. See Arts. 86 and 87 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 16 ILM 1391–1441(1977).See also The Commission of Inquiry Into the Events at the Refugee Camps in Beirut 1983, Final Report, reproduced in 22 ILM 473 (1983).

12. W.Fenrick (Senior Legal Advisor, Office of the Prosecutor), Some International Law Problems Related to Prosecutions Before the International Criminal Tribunal for the Former Yugoslavia 15 (not yet published).

13. Id., in entirety, wherein it is argued that the existing international law doctrine of command responsibility, as reflected in the ICTY's Statute, includes political and bureaucratic superiors who may be held liable for a failure to control their subordinates.

14. Dusko Tadić was arrested by the German authorities while he was in Germany. On 8 November 1994, the Trial Chamber requested the German government to defer all criminal proceedings in its national courts to the ICTY, and take all necessary legislative steps to comply with this deferral. Germany responded by enacting the Law Regulating the Co-operation with the International Tribunal for the Former Yugoslavia (Yugoslavia Tribunal Law) (No. 18,BGBI (1995)), on 10 April 1995, in terms of which the proceedings against Tadic were deferred to the ICTY, and the accused was transferred to The Hague for trial.

15. Case No. IT–94–1–T, Motion of 23 June 1995 on the Jurisdiction of the Tribunal.

16. Case No. IT–94–1–T, Prosecutor's Response of 7 July 1995 to the Defence's Motion on the Jurisdiction of the Tribunal.

17. Case No. IT–94–1–T, Decision of 10 August 1995 on the Defence Motion on Jurisdiction.

18. One noteworthy aspect of the judgment was that the Trial Chamber confirmed that crimes against humanity under international customary law do not require a nexus with armed conflict, and can thus be committed in times of peace. This is the first pronouncement by an international tribunal to the effect that massive human rights violations are unlawful in times of peace, and could be criminally punished.

19. Making Rules for War, Economist, 11–17 March 1995.

20. A.M. Rosenthal, Trials for War Crimes and Balkan Peace: A Puzzle, International Herald Tribune, 29 July 1995.

21. A. Lewis, Karadzic and Mladic Beware, the WarCrimes Tribunal Works, International Herald Tribune, 31 July 1995.

22. UN Prosecutor Vows World Justice, Daily Journal (San Francisco), 20 January 1995.

23. P. Holmes, Karadzic a Pariah, Says War Crimes Tribunal Chief, Reuters News Agency, 26 July 1995.

24. UN's toothless court, Daily Telegraph, 20 January 1995.

25. D., Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 Criminal Law Forum 421 (1994).Google Scholar

26. The concept of crimes against humanity, for example, which was finally included in the Nuremberg Charter, had its origins, to a large extent, in the post-World War I initiatives. See United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Law of War 188–231 (1948).

27. See Forsythe, supra note 25, at 414.

28. Forsythe, however, expresses the view that “[t]he sine qua non for such a court is solid, serious international support for international humanitarian law. This does not exist in sufficiet degree in the 1990s to allow the International Tribunal for the Former Yugoslavia to be a great success.” Supra note 25, at 419.

29. The Serbian Tigers are aparamilitary grouping which were allegedly involved in the indiscriminate killing of countless civilians in the former Yugoslavia.

30. Making Rules for War, supra note 19.

31. R. Goldstone, Learning How Discrimination Leads to Genocide, International Herald Tribune, 4 July 1995.