The enforcement of civilian protections: the International Criminal Tribunal for the former Yugoslavia
The enforcement of civilian protections
The International Criminal Tribunal for the former Yugoslavia
On 17 November 1989, the General Assembly of the United Nations declared the period of 1991–1999 to be the ‘United Nations Decade of International Law’.1 In its dedicated Resolution on the issue, the General Assembly determined that the promotion of the acceptance of, and respect for, the principles of international law was one of the main purposes of the decade.2 The Resolution underscored the importance of the progressive development of international law and its codification, and the promotion of means and methods for the peaceful resolution of disputes between States.3 For the UN, this decade was to provide the occasion for the strengthening of international law by Member States, and for its rules and principles to regulate the order and functioning of the international community.
Against this aspirational background of a universal adherence to international rules and principles, the brutal conflicts of the former Yugoslavia in the early 1990s brought a profound shock to the international community. Contrary to the progressive ideals of the United Nations, the conflicts of the break-up of the Socialist Federal Republic of Yugoslavia involved widespread and systematic violations of international humanitarian law. Beginning with the ten-day war in Slovenia, the declaration of independence by Croatia and the independence referendum in Bosnia and Herzegovina (BiH) led to sustained conflict with Serbia.4 In Croatia, campaigns of ethnic cleansing led to the expulsion of Croats and non-Serbs from its territory and the shelling of Dubrovnik and destruction of Vukovar. Later attacks by the Croatian military led to tens of thousands of Serbs fleeing to Bosnia and Herzegovina and Serbia.5 In Bosnia and Herzegovina, it is estimated that more than one hundred thousand people were killed and half the population displaced as fighting ensued after Bosnian Serbs and then Bosnian Croats rejected the authority of the Bosnian Government and claimed control over territory.6 Hundreds of detention camps, the mass rape of women and the siege of Sarajevo characterized the conflict.7 In 1995, the Bosnian town of Srebrenica came under attack by forces led by the Bosnian Serb Commander Ratko Mladić and over the course of several days in July over 8,000 Bosnian Muslim men were killed. War raged in Bosnia and Herzegovina until the signing of the Dayton Peace Accords in December 1995. However, the next area of conflict centered on Kosovo, where the ethnic Albanian community there sought independence from Serbia.8 Sporadic conflict arose in the former Yugoslav Republic of Macedonia during the early months of 2001 when the ethnic Albanian Liberation Army militant group clashed with the republic’s security forces with the aim of obtaining autonomy or independence for the Albanian-populated areas in the country.9
These conflicts have become infamous for the brutal nature of their violence. The first United Nations Security Council Resolution concerned with the Yugoslavian conflicts expressed deep concern over the heavy loss of human life and material damage, and further Resolutions condemning this conduct were passed in subsequent years.10 Many of these Resolutions drew attention to the high level of civilian targeting by the parties to the conflict. They condemned the abuses being committed against civilians, particularly their expulsion, deportation and imprisonment, and the deliberate attacks on hospitals and ambulances, impeding the supply of food and medical supplies to the civilian population.11 The campaigns of ethnic cleansing perpetrated across the region soon made clear to the international community that the military and political authorities were not ‘sparing’ civilians from their violence. Instead, this category of persons was the express target of direct and intentional attacks as well as being subject to indiscriminate acts of violence. In the Yugoslavian conflicts, as in many others, the distinction between ‘military fighters’ and ‘protected civilians’ operated as a principle of the law on the books, but not a practice of the hostilities. This guiding principle of the conduct of warfare did not serve to regulate the conduct of the perpetrators of violence, nor protect the populations at risk from their harms. Estimates suggest that 42,000 civilians were killed during the Bosnian war.12
How, then, did the ICTY operate to redress the violence of the conflicts? Since its establishment, scholarly analyses have considered the legal framework of the ICTY (Morris and Scharf, 1995; Schabas, 2006), the politics behind its establishment and functioning (Bass, 2000; Hazan, 2004; Kerr, 2004), and its maturation and ‘inner workings’ (Del Ponte with Sudetic, 2008; Hagan, 2003). The views of witnesses that have testified before its Chambers (Stover, 2005) and public perceptions of its work in the former Yugoslavia (Biro et al., 2004; Kutnjak Ivković and Hagan, 2011) have also been the subject of scholarly examination. The overview of the ICTY set out in this chapter serves a more pragmatic purpose, that is, to provide context for the analysis of the legal shaping of civilian identities and protections in the chapters that follow. To orientate the reader as to the parameters of the ICTY’s functioning, this chapter first considers its role as both a mechanism of international criminal justice and transitional justice. In so doing, this analysis does not seek to establish how, or to what extent, these objectives have been realized.13 Rather, it considers how the ICTY understands its functions as such. The chapter then identifies the key ‘sites’ of the institution and describes how they worked in practice to render justice to victims and perpetrators. It provides detail on the work of the Commission of Experts, its mandate and jurisdiction, investigation and prosecution strategies and trial proceedings. However, it is important to note that as an ad hoc institution, the structures and practices of the ICTY did not stay static during the years of its functioning. The ICTY first had to be ‘built’ and then ‘dismantled’ as its functioning was brought to a close. For this reason, the chapter indicates the key shifts in policy and strategy undertaken during its life-span and their impact upon the types of cases brought to trial and the terms of their adjudication.
The ICTY: a mechanism of international criminal justice and transitional justice practices
In its address to the violence of the Yugoslavian conflicts, the international community established the ICTY in 1993 to contribute to ensuring that violations of humanitarian law being committed in the former Yugoslavia were halted and effectively redressed.14 Amid the ongoing violence, United Nations Security Council Resolution 827 created the ICTY to contribute to the restoration and maintenance of peace in the former Yugoslavia.15 The Security Council held that the violations of humanitarian law being committed in the region constituted a threat to international peace and security, and that a judicial body would contribute to ensuring that such violations would be halted and effectively redressed.16 That task was to be accomplished through the criminal prosecution of persons responsible for serious violations of international humanitarian law.17 The ICTY was to assess allegations of such violations and ‘bring to justice the persons who are responsible for them’.18
In light of these expansive objectives and functions, the ICTY can be understood to have operated as both a mechanism of international criminal justice and transitional justice. Situated in The Hague, The Netherlands, and established as a temporary institution, the ICTY constituted a mechanism of international criminal justice through its enforcement of the rules and principles of international humanitarian law. UN Security Council Resolution 827 (1993) stated that the Tribunal was established for ‘the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law’.19 Over the course of its functioning, the Tribunal convicted 74 persons of such violations committed during the Yugoslavian conflicts.20 It ‘named’ these perpetrators as war criminals and condemned their actions as contrary to international principles of law and justice. Following the central principles of retributive justice set out in the previous chapter, the effect of their punishment was understood to resonate beyond the individual accused to fulfill broader rule of law objectives. For example, the Tribunal described that its criminal prosecutions contributed to dismantling ‘the tradition of impunity for war crimes’.21 It held that its war crimes trials conveyed the ‘message that globally accepted laws and rules have to be obeyed by everybody’22 and sought to foster an ‘internalisation of these laws and rules in the minds of legislators and the general public’.23 In this way, the Tribunal understood that its processes of prosecution and punishment expressed ‘the outrage of the international community at these crimes’ and contributed to the prevention of their future occurrence.24
If the Tribunal’s retributive approach worked to identify and condemn the person of the perpetrator, it also served to construct legal recognition of the victims of their unlawful actions. Michael Humphrey has argued that international criminal prosecutions ‘aim to recover the victim through law’ (2003: 496). Through ‘the reconstruction of the victim in testimony the community learns what wrong has been done and the suffering it has caused’ (Humphrey, 2003: 499). Although necessarily selective in accordance with its prosecutorial strategies, the Tribunal followed this notion of a relationship between its prosecutions and the construction of legal recognition of victims and the terms of their victimization. For example, it described that the process of sentencing constructed a ‘legal awareness of the accused, the surviving victims, their relatives, the witnesses’.25 That awareness constituted formal legal recognition that the criminal conduct under adjudication ‘produced’ a victim that sustained harm and injury. It underscored that the harm breached the protective rules of humanitarian law and was deserving of prosecution and punishment. For that reason, the Tribunal described that its criminal proceedings aimed to reinforce ‘the validity and the effectiveness of the breached rules of international humanitarian law vis-à-vis the perpetrator, the victims and the public’.26 In this sense then, the Tribunal sought to accomplish the dual objectives of ‘bringing war criminals to justice’ and ‘bringing justice to victims’.27
While the ICTY did not tend to explicitly characterize itself as a mechanism of transitional justice, it is often assessed as holding that function (Humphrey, 2003; Kandić, 2005; Nettelfield, 2010). The Tribunal’s stated objectives, and those attributed to it by the UN Security Council, readily map onto the central ideals and aims of transitional justice practice. Most obviously, as Antonio Cassese, the first President of the Tribunal has stated, the Tribunal sought to ‘contribute to the peace process by creating conditions rendering a return to normality less difficult’.28 By holding fair trials as a ‘truly independent and impartial tribunal’,29 the legal processes of the Tribunal were seen as ‘essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror’.30 For that reason, the Tribunal sought to mete out justice ‘in a manner conducive to the full establishment of healthy and cooperative relations among the various national and ethnic groups in the former Yugoslavia’.31 In this way, justice was understood to ‘be an indispensable ingredient of the process of national reconciliation’.32 For the Tribunal, this prosecutorial approach to the redress of violations of international humanitarian law was not only appropriate to the Yugoslavian conflicts but has ‘laid the foundations for what is now the accepted norm for conflict resolution and post-conflict development across the globe’.33
In descriptions of its ‘core achievements’, the ICTY also articulates its accomplishments in terms of practices commonly understood to contribute to processes of transitional justice. Alongside ‘holding leaders accountable’ and ‘developing international law’, the ICTY states that it is ‘bringing justice to victims’, ‘giving victims a voice’, ‘establishing the facts’ and ‘strengthening the rule of law’.34 The Tribunal describes that it is bringing justice to victims through the transparent nature of its judicial processes. By holding senior leaders accountable for the crimes committed during the conflicts, the ICTY determines that it is ‘ensuring that the victims can see that the individuals who are responsible for their suffering are convicted by an international criminal court and sent to prison’.35 In terms of ‘giving victims a voice’, the ICTY points out that it has ‘provided thousands of victims the opportunity to be heard and to speak about their suffering’.36 While the limitations of this form of inclusion in trial proceedings as a means to narrate personal experiences have been well documented (Dembour and Haslam, 2004; Mertus, 2004), the testimonies that are given through the first-hand narration of acts of victimization are understood to ‘contribute to the process of establishing the truth’.37 This truth, in turn, contributes to ‘establishing the facts’ of the crimes of the conflicts. This outcome of the Tribunal’s functioning is understood to combat denial and prevent attempts at revisionism.38
The final stated ‘achievement’, that is, of strengthening the rule of law, relates to the ICTY’s relationship to the courts and judiciaries in the former Yugoslavia. The ICTY states that it has encouraged judiciaries in the former Yugoslavia to reform, and to continue its work of bringing those responsible for war crimes to justice. It has worked in partnership with domestic courts in the region, ‘transferring its evidence, knowledge and jurisprudence’.39 The ICTY has been most active in its relationship with the War Crimes Chamber of the Court of Bosnia and Herzegovina. Established in May 2000, the War Crimes Chamber functions as an ‘internationalized justice mechanism’ entrenched in a domestic legal system (Human Rights Watch, 2006: 2). It was originally staffed with a mix of national and international prosecutors, judges and registry but has evolved to become a fully national mechanism.40 Hearing cases transferred from the ICTY as well as accused indicted by its prosecutors, the War Crimes Chamber has rendered 116 trial verdicts involving 178 defendants.41 Through its assistance to this and other courts in the region, the ICTY extends the scope of its impact beyond the immediacy of its judgements to the long-term stability of the region. It argues that its vital contribution to international justice ‘has played a crucial role in bringing justice not just to people in the former Yugoslavia but across the globe’.42
The ICTY: key ‘sites’, practices and perceptions
How, then, did the ICTY operate to fulfill these diverse ‘justice’ functions? How did the first international war crimes tribunal seek to render justice to the victims and perpetrators of the Yugoslavian conflicts? As Kutnjak Ivković and Hagan point out, the story of the ICTY began in 1992 with the work of an impartial Commission of Experts mandated to investigate alleged criminal conduct being committed in the former Yugoslavia during the early 1990s (2011: 2). The Commission of Experts was established pursuant to UN Security Council Resolution 780, and followed a series of Resolutions that had expressed concern over the fighting in the region.43 It was mandated to examine and analyze information to provide the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed during the hostilities.44
The Commission worked between November 1992 and April 1994. It was initially chaired by Professor Fritz Kalshoven, and then, following his resignation on medical grounds, by Professor Cherif Bassiouni. The Commission comprised four further members, namely William Fenrick, Keba M’baye, Christine Cleiren and Hanne Sophie Greve, each of whom is a respected academic and/or practitioner in the field of international law, and war crimes more specifically.45 The Commission was funded by the regular budget of the United Nations and the Trust Fund for the Commission established in March 1993.46
The Commission held 12 sessions to discuss substantive, methodological and organizational problems related to its mandate, and undertook 32 missions with the aim of either preparing for investigations or conducting them.47 To conduct its investigations, the Commission employed three methods, namely:
(a) collection and analysis of information sent to or requested by the Commission;
(b) undertaking of investigative missions in the territory of the former Yugoslavia or in other countries in order to obtain additional information, take testimony and, as far as possible, verify facts; and
(c) information gathering on behalf of the Commission by certain Governments in different countries.48
Broadly, the Commission focused its investigations and findings upon, among other areas, the military structure of the warring factions and the strategies and tactics they employed and ethnic cleansing; the alleged genocide and massive violations of humanity in Prijedor; the battle and siege of Sarajevo; detention facilities; rape and other forms of sexual assault; mass grave sites; destruction of cultural property and the area of Dubrovnik. The findings of the Commission have commonly been accepted as providing a comprehensive exposition of the conduct of the hostilities due to its ‘evidentiary rigour and procedural fairness’ (Fenrick, 1995: 63). In its Final Report, the Commission provided a detailed overview of the perpetration of alleged crimes in the areas described above. It established that there was significant evidence of the commission of grave breaches of the 1949 Geneva Conventions and other violations of international humanitarian law.49
In its assessment of campaigns of ethnic cleansing undertaken by Serbs in particular regions of Bosnia and Herzegovina, for example, the Commission found that the coercive means used to remove civilian populations included mass murder, torture, rape and other forms of sexual assault and mistreatment of civilian prisoners and prisoners of war. It drew attention to two further factors that indicated the existence of ethnic cleansing: the wholesale and surreptitious departure of the Serbian population living in certain areas before the areas were to be ‘cleansed’, and the practices occurring under the supervision of a ‘crisis committee’ comprised local political leaders, police and others, which made decisions with the direct or indirect involvement and support of the Bosnian Serb army.50 Refuting any suggestion that the crimes committed in these regions were sporadic or isolated acts of violence, the Report determined that ‘the practices of ‘ethnic cleansing’, sexual assault and rape have been carried out by some of the parties so systematically that they strongly appear to be the product of a policy’.51 Moreover, it described that the ‘type, range and duration of the violations … strongly imply command responsibility by commission and omission’.52
Given the widespread and systematic crimes allegedly being committed in the former Yugoslavia, and the continuance of these acts of violence at the time of its work, the Commission articulated its support for the establishment and functioning of the ICTY. It described that ‘popular expectations of a new world order based on the international rule of law require no less than effective and permanent institutions of international justice’.53 For this reason, the Commission underscored the importance of the work of the ICTY, and emphasized that it should be given the necessary resources to complete its work. It noted that the parties to the conflict, international organizations, non-governmental organizations, the media and world public opinion all conveyed a high expectation that the truth would be established and justice rendered by this institution.54 Perhaps more importantly, the Commission held that its establishment and functioning was of critical importance for a further reason: the ‘victims’ high expectations … that the International Tribunal will provide justice’.55
After the adoption of its Statute pursuant to UN Security Council Resolution 827, the ICTY began to develop as a functioning international institution in late 1993. The obstacles faced by the ICTY in terms of funding, political support (both at the level of the UN and from the states of the former Yugoslavia) and its lack of arrest powers has been well documented.56 Yet despite these difficulties, the judges set out to build ‘a completely new organization’.57 Key tasks included the development of its Statute and Rules of Procedure and Evidence, securing a suitable building to house its offices and courtrooms, and hiring staff for its various organs. Despite its beginnings as ‘a paper report of thirty-five pages’, the ICTY grew to become ‘an active international prosecutorial and judicial body’.58 It ultimately comprised many hundreds of staff members representing nationalities across the globe, and functioned (somewhat contentiously) with a regular budget of several hundred million dollars a year.59
The Tribunal was composed of three organs: the Chambers, the Office of the Prosecutor and the Registry. The Chambers was organized into three Trial Chambers and an Appeals Chamber, with numerous legal staff employed to assist the judges in preparing and managing cases and participating in the drafting of legal documents.60 The Chambers were entrusted with the performance of all judicial functions from the pretrial phase to the final appeal (Morris and Scharf, 1995: 138). As is further set out below, the Office of the Prosecutor was responsible for the investigation and prosecution of alleged criminals (Morris and Scharf, 1995: 138). The Registry organized the administration of the courtrooms, assumed duties that are often afforded to ministries and fulfilled the tasks of the administrative body of a UN organ.61 A further important unit of note within the ICTY was the Outreach Programme. This unit was established in 1999 by the then President, Gabrielle Kirk McDonald, to provide information on the work of the ICTY to the people of the former Yugoslavia.62 It was not, however, funded by the UN and depended instead on external funding from member states and other institutions to undertake its activities.
Together, the staff members of these organs and units all sought to attend to the mandate of the ICTY, that is, ‘to bring to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991 and thus contribute to the restoration and maintenance of peace in the region’.63 The ICTY had authority to prosecute individuals on four categories of offenses: grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity.64 In accordance with the principle nullum crimen sine lege (no crime without law), it applied ‘rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise’.65
In accordance with the terms of its Statute, the ICTY held jurisdiction over individual persons and not collectivities.66 It could not, therefore, prosecute organizations, political parties, administrative entities or other legal subjects (Lobwein, 2006: 197). Rather, the assignment of individual criminal responsibility was held to overcome the ‘primitive and archaic’ problem of whole ethnic and religious groups being ‘held accountable for these crimes and branded as criminal’.67 The official position of the accused, whether as Head of State or Government or as a responsible Government official, did not relieve him or her of criminal responsibility or mitigate punishment.68 In terms of its territorial jurisdiction, this extended to the territory of the former Socialist Federal Republic of Yugoslavia, while its temporal jurisdiction was from the period beginning 1 January 1991.69