Prosecuting War Criminals at the ICTY

I spent this past summer interning at the International Criminal Tribunal for the Former Yugoslavia (ICTY). I was a legal intern at the office of the Prosecutor assisting on the Radovan Karadzic case.  The ICTY was established in 1993 pursuant to The United Nations Security Council Resolution 827 giving the Tribunal a mandate to prosecute persons responsible for serious violations of international humanitarian law on the territory of the Former Yugoslavia since 1 January 1991. Since its establishment, the Tribunal has issued 161 indictments and is currently in the midst of the prosecutions of the two highest ranking individuals accused of war crimes, Radovan Karadzic and Ratko Mladic. Karadzic, a former president of the Republika Srpska, and Ratko Mladic, a former military leader, are both accused of orchestrating the genocide in Srebrenica and carrying out a campaign of ethnic cleansing in Bosnia and Herzegovina. 

 The Tribunal is currently involved in the prosecution of the two most important cases in its history, and at the same time the Tribunal is also trying to implement the Completion Strategy. In 2003 and in 2004, the UN Security Council passed two resolutions 1503 and 1534 on the completion of the ICTY’s work which called on the Tribunal to finish its investigations in 2004, complete first instance trials in 2008, and finally finish all the work by 2010. However, due to late capture of Karadzic and Mladic, in 2008 and 2011 respectively, the Tribunal’s completion strategy has been postponed, currently setting a deadline of 2014 to complete the Karadzic trial and later completion date for Mladic and Hadzic. 

             With the Tribunal reaching the final stages of the Completion strategy, this summer was a perfect stage to evaluate whether the Tribunal had achieved its mandate.   The mandate was a two-pronged mandate: to prosecute those most responsible for violence and to contribute to the efforts of reconciliation and peace.  The Tribunal has been successful in the prosecution of the perpetrators. In its nearly two decades of existence, the Tribunal has issued 161 indictments and successfully apprehended all of the accused. The Chambers found that atrocities committed in Srebrenica targeted against Muslim men in July 1995 were genocide, and found several individuals guilty of committing genocide. The Tribunal also broke ground in the prosecution of sexual violence crimes, recognizing that rape is not a side product of the war, but is a serious crime that can be prosecuted as war crimes and crimes against humanity.  

While the Tribunal contributed to the expansion of international law, it has been less successful in contributing to reconciliation and peace on the ground.  Bosnia and Herzegovina is fractured between the three major groups, Serbs, Croats and Muslims, each living in their own communities with little interaction. They are all taught a different version of history at school and politicians continue to exploit the war to gain popular support. In June 2012, the current President of Republika Srpska Tomislav Nikolic publicly stated there was no genocide in Srebrenica but acknowledged that grave war crimes were committed.[1] On the first day of Ratko Mladic’s opening statement, news emerged that Srebrenica, the symbol of Muslim suffering, will likely elect a Serb major in October elections. The political take over of Serbs 10 years after the genocide is due to the fact that former Muslims residents are no longer allowed to vote in the mayoral elections.[2]  Against the backdrop of this grim political situation, the Tribunal has in recent years built up and expanded its outreach program with the aim to educate the public in the Former Yugoslav Republics about its work. The ICTY Outreach program has set up workshops around the republics to work with young people and engage them in the dialogue to understand each other, their points of contentions and help them move forward.

I believe that the Tribunal’s legacy will be shaped by how successful the Tribunal is in helping to build up the national judicial capacity of Bosnia and Herzegovina. The Tribunal is an ad hoc body, one that was never intended to prosecute all the criminals, only the most responsible ones. Thus, the Tribunal in its completion strategy, started to transfer some cases back to the national courts while in 2005 the government of Bosnia and Herzegovina set up War Crimes Chambers and a Prosecutor’s office tasked to prosecute war criminals pursuant to the National Strategy for War Crimes. The OSCE Mission in Bosnia in its report Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010, stated that in its first five years of existence, the judicial system in Bosnia has successfully prosecuted 200 cases related to the conflict, thus showing a strong commitment to delivering justice.[3]  Further, Human Rights Watch in its report Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina, reported that seven years after the establishment of the War Crimes Chamber, most people who were interviewed for the report confirmed that international judges and prosecutors have encouraged public faith in the impartiality and in the day to day work of the Chambers and the Prosecutor.[4] However, despite the positive news, the ICTY Prosecutor Serge Brammertz in its report to the UN Security Council in June 2012 urged the government of Bosnia and Herzegovina to donate more money to the judicial system and reaffirm its commitment to pursuing impartial justice.

                       

The Tribunal has not been perfect, and many may argue that it cost too much or the trials last too long; there is no doubt that the ICTY made significant contributions to international law and especially international criminal law. The Tribunal’s commitment to bring justice will not only have a long lasting effect for victims and their families, but also on me, having given me a unique opportunity to assist in the Prosecution of Radovan Karadzic and reaffirmed my commitment to international human rights legal issues.

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[1] Srebrenica not genocide- Serbia’ President Nikolic. http://www.bbc.co.uk/news/world-europe-18301196

[2] As Ratko Mladic trial begins, followers are poised to take power in Srebrenica, http://www.guardian.co.uk/world/2012/may/10/ratko-mladic-trial-followers-srebrenica

[3]  OSCE. Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010.

[4] Human Rights Watch, Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina.