JURIST Guest Columnist Mohit Gupta of South Asian University discusses the legacy of the ICTY…
International Criminal Tribunal for the former Yugoslavia (ICTY), an ad hoc international criminal tribunal established by mandate from United Nations Security Council officially came to its end on December 21, 2017. The tribunal was created in response to atrocities committed in former Yugoslavia. Few would have imagined at that time that the perpetrators of the atrocities would be brought to justice, and the culture of impunity surrounding the most gruesome crimes would finally come to an end.
The tribunal operated for 10,800 days, examined more than 4,000 witnesses and convicted 90 individuals. These figures show overall outcome of the proceedings in ICTY.
ICTY strengthened the concept of the rule of law by ushering in a new era in international criminal justice where accountability for atrocities has become the universal value. ICTY inspired the creation of International Criminal Tribunal for Rwanda, Special Court for Sierra Leone and the International Criminal Court. There has also been a demand to have similar international crimes tribunals for Sri Lanka and Israel. The ICTY has set a benchmark for future prosecutions in other deadly conflicts.
The success story of the tribunal begins from its very first case where it was asserted that the Security Council had no authority to set up tribunals like ICTY. The ICTY was faced with the question of whether it has the power to pass a ruling on the legality of its own creation by the Security Council. The appeals chamber progressively dealt with the question and accepted that there could be limited judicial review of the Security Council resolution which created it, as that was the required for determining whether ICTY had primary jurisdiction over crime enumerated under its statute. This was a landmark ruling because it was the first time it was asserted that a Security Council resolution was subject to some judicial review, albeit in a limited capacity.
Although the tribunal held that the Security Council’s invocation of Chapter VII, which allowed for the creation of the tribunal, was justified, the amenability of the Security Council resolution to limited judicial review had a long-lasting impact on the authority of Security Council, which had been seen as a world legislature with no checks and balance on its power. Thus ICTY not only shaped the jurisprudence of international criminal law, it brought new dimensions to public international law.
ICTY has been a pioneer in creating the contemporary architecture of criminal justice. It has distilled and evolved some of the key concepts of criminal jurisprudence. Establishment of the concept of “joint criminal responsibility” at an international level comes from the ICTY. The appeals chamber ruled in the Tadic case of 1999 that the commission of one of the crimes mentioned under its statute may also occur through participation in the realization of a common design or purpose. Although this concept of joint criminal responsibility was firmly established in the domestic criminal law of countries, it did not previously exist in international criminal law until the ICTY’s invocation. By incorporating this concept in international criminal jurisprudence, the tribunal aided in healing the woes of thousands of victims of atrocities of international crimes.
The ICTY has also taken groundbreaking steps in paving the way for effective prosecution of wartime sexual violence. It was the first international criminal tribunal to classify rape as a form of torture and sexual enslavement as a crime against humanity.
Establishment of ICTY was a bold experiment in international justice. Some high profile perpetrators like Zdravko Tolimir, Radovan Karadzic, and Ratko Mladic, also dubbed the “Butcher of Bosnia,” have been tried by the tribunal. The Yugoslav Tribunal was first to indict a sitting head of state in Serbia’s Slobodan Milosevic. The tribunal contributed in breaking the culture of impunity and helping to ensure that no one goes unpunished for the perpetration of gravest crimes, regardless of political status.
The ICTY, being first international war crimes tribunal established after Nuremberg and Tokyo tribunals, has lived up to the expectations and hopes of the international community. It has successfully discharged its function by strengthening criminal jurisprudence, which will be inherited and taken forward by International Criminal Court. In the words of President Agius, the ICTY “will continue to serve as a reminder of what is possible in the fight against impunity”.
Mohit Gupta is pursuing his master’s degree in International Law from South Asian University
Suggested citation: Mohit Gupta, The Story of ICTY: Legal Success Emerging from Tragedy, JURIST – Dateline, January 16, 2018, http://jurist.org/dateline/2018/01/Mohit-Gupta-ICTY.php.
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