From 1991, the armed conflict which fractured the Federal Republic of Yugoslavia into its constituent states was characterised by widespread and flagrant breaches of international humanitarian law, including mass killings, systematic detention and rape of women, and the practice of ethnic cleansing, where entire communities were expelled from their homelands by force.
The establishment of the ICTY was truly a historic moment for international justice. Never before had the UN moved with such authority to introduce a criminal process to restore peace and security after the end of a conflict. The case law of the ICTY has set the foundations of modern international criminal jurisprudence and has led to the development of criminal practice in a number of important areas, particularly in relation to forms of liability.
Even as hostilities were ongoing, the Security Council created a Commission of Experts in October 1992 to investigate reports of crimes with the intention that they be prosecuted at the end of the conflict (see SCRes 780 (1992), SCRes 808 (1993)). In May 1993, the Security Council adopted SCRes 827 to authorise the establishment of an international tribunal for the purpose of prosecuting perpetrators of violators of international humanitarian law committed in the former Yugoslavia.
The Statute of the ICTY describes the jurisdiction of the Tribunal, which is limited to serious violations of international humanitarian law in the territory of the former Yugoslavia since the beginning of hostilities in 1991. Its jurisdiction extends to grave breaches of the Geneva Conventions and other violations of the laws and customs of war, genocide and crimes against humanity.
To establish the Tribunal, the Council invoked its powers under Chapter VII of the UN Charter, which allows the Council to take measures to maintain or restore international peace and security. This empowered the ICTY with considerable authority over reluctant States. The ICTY has primary jurisdiction over crimes committed within its jurisdiction, even though it is concurrently competent with national courts. The ICTY can insist that national prosecutions defer to the competence of the Tribunal in the interests of justice.
The Tribunal sits in the Hague, the Netherlands. Its three main organs are the Chambers, the Registry, and the Office of the Prosecutor. It is notable that this early example of international justice does not include an office for the Defence, which was only added to subsequent tribunals after it became clear that defendants suffered considerable inequality before international tribunals without adequate support and facilities to prepare. Its sui generis procedure reflects predominantly the common law tradition of legal practice. There are currently three Trial Chambers, each composed of three international judges. At the appellate level, a panel of five international judges is the final authority on matters of law at the Tribunal.
Among the main achievements of the ICTY are the dramatic capture and subsequent trial of Yugoslav President Slobodan Milosevic, who died mid-way through his trial in March 2006, as well as the capture and upcoming trial of Radovan Karadžic, and judgments against Duško Tadic in 2000, Radislav Krstic in 2004, and most recently Milan and Sredoje Lukic in July 2009.
The ICTY is currently implementing its completion strategy, and is expected to complete its activities and close down in 2012. As part of the completion of its work, it has referred a number of individual cases to the relevant national jurisdictions in the former Yugoslavia pursuant to Rule 11 bis of the Tribunal’s Rules of Procedure and Evidence.
In its most recent report, dated 31 July 2009, the ICTY describes that it “has concluded proceedings against 120 accused out of the 161 indicted. However, while all bodies of the court are making progress towards the completion of the court’s mandate, the report notes that there remains two high profile suspects still at large, who are both believed to be hiding in Serbia – Ratko Mladic and Goran Hadžic, and that '[t]he failure to arrest the remaining two fugitives remains a grave concern to the Tribunal.'
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