International Criminal Tribunal for the Former Yugoslavia (ICTY) Notes

The International Criminal Tribunal for the Former Yugoslavia (ICTY)

1. Creation and mandate
   1. The ICTY was created by the UN Security Council in May 1993 through Resolution 827, amid escalating atrocities in the Balkans.
   2. It was the first international war crimes tribunal since Nuremberg and Tokyo.
   3. It had jurisdiction over genocide, crimes against humanity, and violations of the Geneva Conventions committed in the former Yugoslavia since 1991.

Activity, prosecutions, and challenges

1. Indictments and convictions by 2017
   1. By the end of its mandate in 2017, the ICTY had indicted 161 individuals for serious violations of international humanitarian law committed during the conflicts in the former Yugoslavia from 1991 to 2001.
   2. 90 individuals were convicted and sentenced for crimes including genocide, crimes against humanity, and violations of the laws or customs of war.
2. Investigations during the Kosovo conflict
   1. In 1999, during and after the Kosovo conflict, the ICTY investigated crimes such as the Račak massacre (see corresponding section) and others.
3. Indictment of Slobodan Milošević
   1. On 27 May 1999, it indicted Slobodan Milošević (see next section), the Yugoslav president, and four top officials for crimes against humanity in Kosovo.
   2. This marked the first time a sitting head of state was charged by an international tribunal (ICTY, 1999).
4. Operational resistance and field work
   1. The tribunal encountered significant resistance: Serbian authorities denied access to crime scenes, refused entry to investigators like Chief Prosecutor Louise Arbour, and obstructed forensic teams.
   2. Despite this, investigations continued from bases in Albania and Macedonia during the NATO intervention.
5. From bias concerns to indictments
   1. Although initial criticism centered on a perceived bias against Serbs, the ICTY later indicted former Kosovo Liberation Army (KLA) leaders, including Ramush Haradinaj and Fatmir Limaj.
      • Most were acquitted due to insufficient evidence proving systematic war crimes.
6. Limited convictions and evidentiary hurdles
   1. A few KLA members were convicted, but not at senior levels.
   2. The limited number of convictions reflected major challenges, including witness intimidation, lack of cooperation from authorities, and the difficulty proving command responsibility at senior levels.

Findings and documentation

1. Sexual violence as policy
   1. Like in Rwanda, the ICTY documented the systematic use of rape by Yugoslav and Serbian forces in Kosovo as a tool of ethnic cleansing and terror.
   2. Based on field reports from Human Rights Watch and forensic evidence gathered during and after the conflict.
2. Scale, cost, and pace
   1. Over its tenure, the ICTY prosecuted 161 individuals and completed 90 trials, more than its counterpart in Rwanda.
   2. It was criticized for being excessively expensive and slow moving.
   3. Across its lifespan, it cost over $2 billion USD, trying just 161 individuals.

Criticisms and public reception

1. Perceived imbalance and victor’s justice
   1. A frequent criticism, especially from Serbia, was that the ICTY disproportionately targeted Serbs, fostering a sense of victor’s justice.
   2. Of the 90 individuals convicted, over 60 were Serbs, with far fewer convictions against Croats or Kosovar Albanians.
   3. Although some KLA members were indicted, most were acquitted, reinforcing the view of imbalanced prosecution.
2. Limited reconciliation and low trust
   1. Despite its legal contributions, the ICTY had limited success in promoting reconciliation in the former Yugoslavia.
   2. Public opinion polls in Serbia and Bosnia showed low trust in the tribunal, with many viewing it as politically motivated.
   3. The focus on individual accountability often failed to resonate with broader societal narratives or address communal grievances.

Contributions and long-term impact

1. Doctrinal clarifications and the ICC
   1. On the achievements side, the ICTY defined crimes such as genocide, crimes against humanity, and war crimes, and clarified individual criminal responsibility, including for heads of state.
   2. This helped shape the Rome Statute and the formation of the International Criminal Court (ICC) in 2002.
2. Accountability of leaders
   1. The tribunal proved that even sitting leaders could be held accountable, with the indictment of Slobodan Milošević in 1999 marking the first time a sitting European head of state faced such charges.
3. Lasting record
   1. The ICTY assembled a comprehensive factual and legal record of the Yugoslav Wars, including documentation of the Srebrenica genocide and systematic crimes in Kosovo.
   2. This record remains vital for historians, courts, and reconciliation efforts.