‘Peace and Justice go hand-in-hand. This (Dayton Peace) Agreement promises that those who have committed crimes which threaten international peace and security – genocide, crimes against humanity and war crimes – will be brought to justice.’ – Statement of Antonio Cassese, the then President of the International Criminal Tribunal for the former Yugoslavia, on signing of the Dayton Peace Agreement in 1995.
The International Criminal Tribunal for the former Yugoslavia was formally dissolved in December 2017. The Yugoslav Wars which erupted in 1991 forced the United Nations to take a stern view on the mass killings and executions in the former Yugoslavia. To provide prompt action, the United Nations Security Council unanimously adopted certain resolutions formally establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. It was the first truly international war crimes tribunal as well as the first tribunal established under Chapter VII of the UN Charter.
The International Criminal Tribunal for the former Yugoslavia dealt with war crimes that took place during the conflicts in the Balkans in the 1990s and as the ICTY had an open-ended temporal jurisdiction, not only did it prosecute crimes committed between 1991 and 1995 when the Dayton Agreement was signed but also later when the Kosovo violence erupted.
This International Tribunal was given the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. More specifically the tribunal had the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions like wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health.
It also had the power to prosecute persons responsible for serious crimes like murder, extermination, enslavement, deportation, imprisonment, torture and rape when committed in armed conflict, whether international or internal in character, and directed against any civilian population. The national courts were given concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia but the International Tribunal was given primacy over national courts.
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime was to be individually responsible for the crime. The official position of the accused person, whether as Head of State or Government or as a responsible Government official, could not relieve such person of criminal responsibility nor mitigate punishment. Also, the fact that a crime was committed by a subordinate did not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The fact that an accused person acted pursuant to an order of a Government or of a superior could not relieve him of criminal responsibility, but could be considered in mitigation of punishment.
Way back in 1994, the first indictment was issued against Dragan Nikolic, a commander of Sušica detention camp in eastern Bosnia and Herzegovina, for crimes committed against non-Serb civilians in 1992. Then in 1995 powerful Bosnian Serb political and military leaders Radovan Karadžic and Ratko Mladic were indicted for genocide in Srebrenica. The first indictment against a sitting head of state by an international court came in 1999 when the ICTY indicted Yugoslav President Slobodan Miloševic. But proceedings against him abated following his death in the Tribunal’s Detention Unit on 11 March 2006.
The first trial commenced in 1996 against Duško Tadic who was accused of crimes committed during 1992 in a detention camp in northern Bosnia and Herzegovina, where thousands of Bosnian Muslim and Croat civilians were detained. In 1998 the Tribunal delivered the first trial chamber judgement in a case having multiple accused who were tried for crimes committed against Bosnian Serb victims in another detention camp near Konjic in central Bosnia and Herzegovina.
Ratko Mladic, the ‘Butcher of Bosnia’, was indicted in 1995 but was arrested only in 2011 in Serbia. His trial started in 2012 wherein the Chamber sat for more than 500 trial days, received the evidence of more than 500 witnesses and more than 10,000 exhibits. He was charged for crimes committed in his capacity as the Commander of the Main Staff of the Army of the Bosnian-Serb Republic for crimes committed in Sarajevo, Srebrenica, and other areas in Bosnia-Herzegovina. He was convicted and sentenced to life imprisonment. (Prosecutor v. Ratko Mladic, November, 2017)
The main allegations against him was that his aim was to permanently remove Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina. In the carnage of Sarajevo, it was alleged that he had the objective of spreading terror among the civilian population through a campaign of sniping and shelling including through murder, acts of violence the primary purpose of which was to spread terror among the civilian population. Also in the Srebrenica massacre the objective was the elimination of Bosnian Muslims. The Chamber held that before, during, and after Bosnian-Serb forces attacked non-Serb villages, many people were killed and the circumstances were brutal as well as those who tried to defend their homes were met with ruthless force including mass executions.
The Chamber also held that he made numerous statements expressing a need to take revenge on Bosnian Muslims from Srebrenica, adding that they would have ‘disappeared a long time ago’ had it not been for the involvement of the international community. The Chamber found that the accused intended to eliminate Bosnian Muslims in Srebrenica by killing the men and boys and forcibly removing the women, young children, and some elderly men through the commission of the crimes of persecution, murder, extermination, and the inhumane act of forcible transfer. The Chamber found that the only reasonable inference was that the accused intended to destroy Bosnian Muslims in Srebrenica.
Accordingly, the Chamber found that he intended to carry out the objective of the Srebrenica joint criminal enterprise through the commission of the crime of genocide and was a member of the Srebrenica joint criminal enterprise. He made personnel decisions concerning the army, commanded the units in various operations, procured military assistance from the army of the Federal Republic of Yugoslavia during the siege, ordered the production and use of modified air bombs on Sarajevo and participated in policy discussions between 1992 and 1995 with members of the Bosnian-Serb government.
The accused also participated in the dissemination of anti-Muslim and anti-Croat propaganda and provided misleading information about crimes to representatives of the international community and even ordered the restriction of humanitarian aid to Sarajevo and failed to take adequate steps to prevent crimes or adequately investigate and punish the perpetrators of crimes, all of whom were under his effective control. Hence the accused’s acts were clearly instrumental to the commission of crimes in Sarajevo and he was held guilty.
Mladic was convicted on all charges except for the charge of committing genocide in Bosnian municipalities other than Srebrenica and has been sentenced to life imprisonment. In coming to the conclusion that no genocide was committed in Bosnian municipalities other than Srebrenica the Chamber found that the physical perpetrators of the killings in the municipalities did have an intention to destroy a part of the Bosnian Muslim group but this intention was not to destroy a substantial part to prove the offence of genocide, as required by the jurisprudence of the tribunals.
Another high profile accused who was arrested and convicted by the ICTY was Radovan Karadžic. He was the President of the National Security Council of the Serbian Republic of Bosnia and Herzegovina and was elected as the President of the Presidency of the Serbian Republic of Bosnia and Herzegovina. From December 1992 he was the President of Republika Srpska, and the Supreme Commander of the armed forces of Republika Srpska. Karadžic was arrested in 2008, after evading arrest for 13 years. He was also charged with genocide and for crimes committed against non-Serbs in Bosnia and Herzegovina.
It was held that during the detention of Bosnian Muslims and Croats, women and men were subjected to rape and other acts of sexual violence by members of the Serb Forces which resulted in serious mental or physical suffering or injury to the victims. Non-Serb detainees were forced to perform labour at the frontlines or were used as human shields to protect Serb Forces. Their properties were seized by the Bosnian Serb authorities. Serb Forces destroyed multiple mosques, Catholic churches and other cultural monuments and sacred sites and also killed many Bosnian Muslims and Bosnian Croats during and after the take-over of the municipalities.
Victims were killed in mass executions and shot during their detention, or were taken away from detention facilities and killed by Serb Forces. In 2016, the Tribunal found Karadžic guilty for the crime of genocide in the area of Srebrenica in 1995, persecution, extermination, murder, deportation, terror and other related crimes and sentenced him to 40 years’ imprisonment.
Lastly the ICTY delivered its final appeals judgment (Prosecutor v. Jadranko Prlic et al, 29 November, 2017) wherein all the defendants who were political and military leaders of Bosnian Croats were held guilty of crimes against Bosnian Muslims. But Slobodan Praljak, a general during the Bosnian conflict and one of the defendants in the case, after hearing the order dramatically committed suicide in the courtroom.
After the establishment of the War Crimes Chamber within the Court of Bosnia and Herzegovina, certain cases have been transferred by the Tribunal and it is also assisting the War Crimes Chamber.
The Mechanism for International Criminal Tribunals (MICT) is an important part of the ICTY’s completion Strategies and has taken over the remaining functions of the ICTY. Stanišic and Simatovic, the two former officials of the Serbian State Security Service who had been acquitted by the Trial Chamber in 2013 had their acquittals reversed by the Appeals Chamber in 2015 and are now retried by the Mechanism for International Criminal Tribunals.
ICTY has helped tremendously in developing international humanitarian law and international procedural and substantive criminal law. It has successfully applied the modern doctrine of criminal responsibility of superiors, also known as command responsibility. It has helped in the creation of other international criminal courts like the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, the International Criminal Court and others. A powerful legacy of war crimes justice has been left by the ICTY.
The writers are Mumbai-based advocates and legal consultants.