INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA.   Term Paper ID:23973 Click to get this paper

Essay Subject: Background, composition, leadership, powers, problems, criticism, politics of tribunal established by U.N. in 1993 to prosecute war crimes.... More...

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Paper Abstract: Background, composition, leadership, powers, problems, criticism, politics of tribunal established by U.N. in 1993 to prosecute war crimes. Paper Introduction: On May 25, 1993, U.N. Security Council Resolution 827 established an international tribunal charged with prosecuting violations of international law arising from the armed conflicts in the former Yugoslavia. Not since the Nuremberg and Tokyo trials, following World War II has an international court tried individuals accused of crimes against humanity, war crimes, and genocide. The International Tribunal for the Former Yugoslavia (ICTFY), which was established at The Hague, Netherlands, is widely seen as an important step toward the deterrence of crimes, the establishment of the firm rule of international law, and the promotion of world peace. Yet, from its inception, the tribunal has generated controversy among supporters and detractors. Among those who believe that the tribunal idea is sound, the principal concerns are that such an institution be established on a sound Text of the Paper: The entire text of the paper is shown below. However, the text is somewhat scrambled. We want to give you as much information as we possibly can about our papers and essays, but we cannot give them away for free. In the text below you will find that while disordered, many of the phrases are essentially intact. From this text you will be able to get a solid sense of the writing style, the concepts addressed, and the sources used in the research paper. The Nuremberg court was also dedicated to the prosecution of"major war criminals," a distinction that meant that only 24 people wereaccused and scheduled to be tried before the court.[23] That number was,however, considered to touch very few of the major criminals involved inthose abuses. They were also breaches ofinternational humanitarian law, as formulated at Nuremberg and elsewhere.When these tactics were employed by Bosnian Serb forces as part of theprogram of so-called "ethnic cleansing" directed against Bosnian Muslimsand other non-Serbs, they also constituted genocide. This was deliberate becausethose involved in the process understood that it was necessary to create astrong distinction between a "spontaneous outburst" of ethnic feeling andwhat was, in the former Yugoslavia, a "conflict deliberately provoked bypower-hungry leaders through a campaign of indoctrination andmisinformation aimed at political homogenization of ethnic groups throughthe creation of a common 'enemy.'"[17] Such a design also allowed, however,for assigning individual responsibility at any level where it might beappropriate. Thus, they were forced to turn to war.Since this was a "war for survival" and self-determination in the "creationof a new state," this meant no rules.[18] In such a war, "mercy andsentiment are out of place, even towards one's conationals [and[individuals are of no concern, neither as victims nor as perpetrators."[19] Later, as a result of the undeniable Serb aggression, the Croatsbecame genuine victims. As Guest says, there were witnesses to the act and it "traumatizedthe entire camp population," and, he concludes, "Tadic's role should not beunderestimated."[28] The fact that Guest feels compelled to justify the prosecution ofTadic by elevating the importance of his role in the ethnic cleansingcampaign speaks to the problem of individual responsibility and the trialsat The Hague. This is a considerable expansion of international law, yet,through it, ICTFY "exemplifies a new understanding of accountability thatmakes heinous and systematic rights violations an international matter."[3] The thinking behind this change in the interpretation of internationalhumanitarian law is based on the easily observed fact that "victims ofethnic persecution are citizens who have been rendered aliens within theirown homeland," and their status, accordingly, "transcends to theinternational sphere."[4] Despite a great delay in selecting a chief prosecutor, RichardGoldstone was appointed in July, 1994. Yet the nature of the circumstances inthe case of the former Yugoslavia may undermine the ICTFY's credibility andrender it ineffective in obtaining justice and promoting the concept ofinternational humanitarian law. From the beginning, its function was considered to be thepunishment of individuals--at every level of involvement in war crimes,genocide, and other crimes against humanity. Ordinarily, of course, justice is supposed to be abovethe particularities of any case. Security Council Resolution 827 established aninternational tribunal charged with prosecuting violations of internationallaw arising from the armed conflicts in the former Yugoslavia. [12]Guest, 75. [9]Vojin Dimitrijevic, "The War Crimes Tribunal in the YugoslavContext," East European Constitutional Review 5, no. [6]Teitel, 8 . "The War Crimes Tribunal in the Yugoslav Context." East European Constitutional Review 5, no. Thus, any attempts to ascribe anexpanded field of action and responsibility to the horrors committed by aDusan Tadic simply serve to undermine the tribunal's ineffectual status.In addition, of course, Tadic's crimes point up the degree to whichthousands of people were involved in the commission of horrifying acts ofbrutality. While such claims may be understood to be self-justifications for genocide in the case of the former Yugoslavia, they willbe, nonetheless, important factors for any future tribunals dealing withthe application of international criminal law. "The International Criminal Tribunal for the FormerYugoslavia and International Law." East European Constitutional Review 5,no. [22]Walsh, 117. [5]Iain Guest, "The International Criminal Tribunal for the FormerYugoslavia: A Preliminary Assessment," in Implementation of the HelsinkiAccords: The War Crimes Trials for the Former Yugoslavia: Prospects andProblems, briefing of the Commission on Security and Cooperation in Europe,Washington D. 4 (1996): 86. An excellentexample of the necessity of this approach is found in Niarchos' analysis ofthe problems of prosecuting rape at The Hague. [1 ]Cedric Thornberry, "Saving the War Crimes Tribunal," ForeignPolicy no. [36]Bassiouni, 416. The "Bosnian SerbRepublic," for example, had no intention of recognizing a body that wouldnot recognize the existence of that polity in the first place.[14] This,of course, touches on the problem of national sovereignty and self-determination. If the tribunal and the Security Council merely hope that thesetrials will facilitate national reconciliation, the evidence of Tadic'sbehavior shows far too many people involved to achieve reconciliationmerely by placing the blame on the leaders (though they, of course, deserveto be tried). 4 (1996): 8 . [33]Akhavan, Yugoslav, 273. Thus, critics of ICTFY say that "both the retention of politicalcontrol" by those responsible for crimes and criminal policies and the"politics of maintaining the fragile Dayton accords" have rendered thetribunal all but impotent.[15] The critics say that this becomes perfectlyclear on considering the first trial that was conducted by the tribunal.The defendant, Tadic, has been described as "no more than a thug of thelowest rank, having held no official governmental or militaryposition."[16] Many people have inferred from this trial and from thefailure of the tribunal to even consider indicting certain higher levelindividuals that the political effect has taken hold in the ICTFY and thatjustice will amount to the punishment of some of the foot-soldiers of theethnic cleansing campaigns, while ignoring those who devised these horrors. [4]Ibid. These similarities point up some of thedrawbacks of the concept of international criminal courts. [28]Ibid., 78. But, according to "popular argument" in Croatia,the Serbs, by their aggression, "had forfeited the protections owed toordinary combatants and civilians," and this argument proved to be "aformula for lawless cruelty" in their response.[2 ] Needless to say, theCroatians also saw themselves as engaged in a war for survival. [8]Ibid. Guest clearly feels uncomfortable with the fact that Tadicwas the first to be prosecuted, and wishes to inflate the importance of hisrole compared to a greater level of responsibility. Certainly, the absence of accountability has always been animportant factor in such crimes. C.: Commission on Securityand Cooperation in Europe, 1996), 77. [34]Bassiouni, 416. [7]Payam Akhavan, "The Yugoslav Tribunal at a Crossroads: The DaytonPeace Agreement and Beyond," Human Rights Quarterly 18 (1996): 259. C., May 28 1996, 75-84. On May 25, 1993, U.N. For such an unwieldy forum, thetribunal has proceeded quite swiftly. In defending the choice of Tadic as the tribunal'sfirst trial, Guest opened by asserting that "Tadic played a more importantrole in ethnic cleansing than his rank would suggest."[26] Tadic was acafe owner who, apparently, "out of resentment against his more successfulMuslim neighbors," went to Omarska, where "the Muslim leadership andintelligentsia from Northwest Bosnia were taken to be murdered," and servedas a prison guard.[27] The charge against Tadic revolved around anincident in which he forced a prisoner to castrate other prisoners with histeeth. [2]Akhavan, Payam. Comparisons of the ICTFY with the Nuremberg and Tokyo trials arefrequently made in discussions of the current tribunal. [19]Ibid. forces to seize Karadzic andMladic. [25]Niarchos, 658. [13]Ibid. [31]Ibid. "The World in Judgement." Index on Censorship 5 (1996): 137-144.Guest, Iain. Another significant related problem is that some of the partiesinvolved refuse to recognize the authority of the ICTFY. C., May 28 1996 (Washington, D. As Akhavan noted, on behalf of the prosecutor's office, for whom heis a legal advisor, "the symbolic effect of prosecuting even a limitednumber of such leaders before an international jurisdiction would have aconsiderable impact on national reconciliation."[32] In another context,Akhavan has argued that, even "absent [the] arrest and surrender to theTribunal" of many leaders such as Mladic and Karadzic, their indictment and"the consequent stigmatization, deprivation of liberty, and removal frompublic office, has had the effect of an 'interim justice.'"[33] This raises another significant difference between the Nuremberg andICTFY courts, which is that, after its defeat, Germany was entirely in thehands of the victors, while, in the former Yugoslavia, "no one is incomplete control of the territory or capable of seizing those who [are to]be prosecuted."[34] The problems that this raises are twofold. Such comparisonshave little value as precedents, but they do provide insight into theproblems inherent in the earlier tribunals. In such matters as theselection of individuals or types of crime to be prosecuted, for instance,the court may believe that it has an obligation to the peace process thattakes precedence over its obligation to justice. But this is the underlying problem with assigning individualresponsibility and making accountability for past crimes the basis on whichnations can be rebuilt. [11]Teitel, 82. Another difficulty is that, in the Yugoslavian cases, the only formof evidence available is the testimony of witnesses. Justice must be predicated on detachmentand impartiality. [26]Guest, 77. C.: Commission on Security and Cooperation in Europe, 1996.Niarchos, Catherine N. [18]Dimitrijevic, 85. Adiscussion of some of the realities that face the ICTFY demonstrates whythe task of making the tribunal work is so difficult--and why it is vitalthat it be accomplished. The International Tribunal for the Former Yugoslavia (ICTFY),which was established at The Hague, Netherlands, is widely seen as animportant step toward the deterrence of crimes, the establishment of thefirm rule of international law, and the promotion of world peace. 1 4 (Fall 1996): 74. Many supporters ofinternational humanitarian law are convinced, however, that, so long as thecourt does no harm, it must continue to pursue its original goals. Yet,from its inception, the tribunal has generated controversy among supportersand detractors. "Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia." Human Rights Quarterly 17 (1995): 649-69 .Teitel, Ruti. BibliographyAkhavan, Payam. Despite the considerabledifferences in their circumstances, the Nuremberg and Hague tribunals faceproblems that are quite similar. As Dworkin notes, the idea, which goes back toNuremberg, is that by accusing and trying those leaders who have thebroadest responsibility for the crimes, "you remove the stigma that wouldotherwise attach to the nation in whose name the acts were carriedout."[29] In the case of the ethnic conflicts in the former Yugoslavia,this logic seems even more pertinent, as the peoples involved need to"learn not to judge each other guilty merely by virtue" of ethnic groupmembership.[3 ] If those who encouraged the atrocities are removed fromthe circulation, this will facilitate the rebuilding of society in theregion. "Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order." Human Rights Quarterly 15 (1993): 262-289.________. [3 ]Ibid., 14 . They enabled them to provide psychological justification forthe perpetrators and to motivate the planners. If the presidents ofSerbia and Croatia are not being indicted, at least those who are indictedshould, Guest seems to argue, be responsible for more than just their ownactions. "Resolving the Human Rights Violations of a Previous Regime." World Affairs 158 (Winter 1996): 111-121.----------------------- [1]Ruti Teitel, "Judgment at The Hague," East European ConstitutionalReview 5, no. [24]Catherine N. [23]M. As of July, 1996, 75 persons hadbeen indicted by the tribunal--though only 1 of them were in custody. Butthe overriding belief was that perpetrators of such crimes wereuntouchable. What the recourse to international law produces in the caseof the ICTFY is a tendency to ignore the importance of internal justice.How were the citizens of the area to deal with Dusan Tadic if he had notbeen tried before an international tribunal? Thus, at Nuremberg, prosecutors "soughtjustice after peace [while] the Hague seeks peace through justice."[6]This is a significant difference, since it raises questions about possiblemotives behind almost every one of the court's actions--motives that mayimpinge on the objectivity of the proceedings. Many observers believe, however, that "these two menbear principal responsibility for the last five years of carnage."[1 ]They ask if this means that justice will not be extended to cover as manyof the guilty parties as possible, or ensures the escape of those with thebroadest responsibility: "Most of those responsible for war crimes remainat large," and most remain unindicted as well.[11] The process, some say,has become irretrievably politicized. Individuals may be indicted andarrested, but banning an entire party "threaten[s] the integrity of theelections."[13] This reluctance to harm the political process played animportant role in the reluctance of the U.N. But where can such levels of responsibility stop? In the case ofcrimes such as the murder of more than 6, Muslims in the Bosnian town ofSrebrenica, in which Mladic and Karadzic have been implicated, the arrestand conviction of these men is intended to create some sort of resolution.Dworkin notes that "it is neither practicable nor desirable" forinternational courts to pursue all the cases of atrocities, "not leastbecause of the intrusion into national life it would entail,"[31]Goldstone and the ICTFY have, therefore, attempted to establish the degreesof responsibility at which convictions need to be pursued on theinternational level. The fact that Tadic's sadistic crimes are horrible in themselvesis not sufficient for Guest or, it seems, for the critics of ICTFY that heis answering. This argument is reinforced by the fact that, in the wake of theDecember, 1995 Dayton Accords, the guarantee of free elections and otherpolitical prerogatives of sovereign states might be infringed upon byarresting all the accused parties since some are political leaders. Washington, D. "Judgment at The Hague." East European Constitutional Review 5, no. Nor is ensuring thesafety and non-coercion of witnesses easy. [32]Quoted in Dworkin, 14 . Yet, overall, the prevailing notion that the wars in the formerYugoslavia were generated by centuries of pent-up tribal hatred was allowedto flourish because, essentially, this was what the leaders of Serbia andCroatia wanted their followers to believe. This is, of course, verydifferent from the case in Germany, where a vast civil service andorganized military administration kept very efficient track of every aspectof military and civilian operations.[36] In the former Yugoslavia, chaoshas been the order of the day for several years--but those responsible usedmodern methods to convey their message. With the inability of the tribunalto indict, arrest, and try even those ring-leaders whose public statements,published and televised as they were, constitute a part of the evidenceagainst them, there is little chance that, at justice's slow pace,convictions will ever reach any very great number. Many hoped that the initiation of the tribunal would aid insecuring peace in the region. "The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond." Human Rights Quarterly 18 (1996): 259-285.Bassiouni, M. As she notes, rape is oftendismissed as a random act committed by individual soldiers. Thus, the ICTFY has taken care to keep the definition ofcriminal responsibility at the higher levels fairly open. [29]Anthony Dworkin, "The World in Judgement," Index on Censorship 5(1996): 139. Such problemsmay be capable of resolution, but solutions are far from being realized. [21]Ibid. 4 (1996): 75-79.Dimitrijevic, Vojin. Cherif Bassiouni, "Former Yugoslavia: Investigating Violationsof International Humanitarian Law and Establishing an InternationalCriminal Tribunal," Security Dialogue 25 (1994): 415. Not only does it represent adeliberate policy, but it is revealed as a strategy of the ethnic cleansinginitiative as well. In the meantime, ofcourse, the ring-leaders, as much as the ordinnary citizens who committedso many of the actual crimes, will be at home and will be theresponsibility of the internal justice systems of the region. In dealing with questions of individualresponsibility, therefore, all the crimes that have been revealed in theformer Yugoslavia lend themselves to prosecution at several levels. Thiswas especially important in the cases of Radovan Karadzic and Ratko Mladic,two indicted Serbian leaders who had not been taken into custody. But the ICTFY is essentially a first attempt atadministering such justice, and the peculiarities of the test case have tobe kept from contaminating the process. Cherif. The fear that such leaders will be able to sabotage the processof conflict resolution results in their being "granted internationallegitimacy" in order to facilitate the greater goal.[8] Unfortunately,this is precisely what has happened in the case of the ICTFY. [2 ]Ibid. This was important because, as Dimitrijevic shows, theevolution of the crimes in the area may have been the result of theleaders' campaigns, but the crimes were often the result of individualinitiative. "Punishing War Crimes in the Former Yugoslavia: ACritical Juncture for the New World Order." Human Rights Quarterly 15(1993): 262-289. Yet the attempt to define individual responsibility generates a greatdeal of confusion. Both sides believed that theirvictimization and their struggle for self-determination entailed ajustifiable "wholesale dismissal of criminal responsibility."[21] These attitudes had enabled the commission of crimes which shockedthe world. When Croatatrocities committed against Bosnian Muslims began to come to light andwhen the Serbs' early tide of victories turned, these victimizationarguments became increasingly strident. The primary justificationswere at the level of the sense of outrage that was engendered in people whowere persuaded that they were victims (or who actually were victims). The idea of victimization wascentral to formulating the political-military-genocidal strategies employedin the area. These are precisely the sort of considerations that usually militateagainst any attempt at punishing such crimes, as "so-called realpolitikconsiderations" prevail, and rights violations are ignored in the hope ofsolving the larger problem.[7] The biggest problem that emerges is that,most often, the political and military leaders benefit from these peaceconcerns. "Former Yugoslavia: Investigating Violations of International Humanitarian Law and Establishing an International Criminal Tribunal." Security Dialogue 25 (1994): 4 9-423.Cohen, David. Not sincethe Nuremberg and Tokyo trials, following World War II has an internationalcourt tried individuals accused of crimes against humanity, war crimes, andgenocide. Thefirst trial, "that of Dusan Tadic, the civilian accused of participating inthe torture of Muslim detainees," began in May 1996.[5] Yet more than $8 million had already been spent on the court by the time this trial began.Thus, the question of continued financial support for the project is alsoimportant, and it hinges on U.N. Niarchos, "Women, War, and Rape: Challenges Facingthe International Tribunal for the Former Yugoslavia," Human RightsQuarterly 17 (1995): 658. Beginning in 1992, as international sanctions began to have an effecton the various Serb forces engaged in scattered conflicts, Serbia'sPresident Slobodan Milosevic began to support the Vance-Owen plan--theforerunner of the Dayton-Paris accords. Milosevic gradually jettisoned his"former disciples and agents in 'Western Serb Lands,'" in order to positionhimself properly with the West as the Serbian hope for peace.[9] Milosevicsuccessfully completed this transformation and, along with CroatianPresident Franjo Tudjman, became a primary force in securing the negotiatedend to hostilities. to arrest those who have been indicted demonstrates alack of will, and undermines the credibility of the tribunal as anadministrator of international law. General Assembly members' perception ofthe fairness and effectiveness of the courts. Serbian leaders argued that they had exhausted peaceful meansin trying to resolve disputes after centuries of oppression and genocide atthe hands of their neighbors. Under the tribunal's mandate, however, ethnic persecutionis treated as an "international" crime even if it has occurred within asingle state. [15]Cohen, David. [14]Brian Walsh, "Resolving the Human Rights Violations of a PreviousRegime," World Affairs 158 (Winter 1996): 117. 1 4 (Fall 1996): 72-85.Walsh, Brian. [27]Ibid., 77-78. The truth thathas emerged from the Yugoslav witnesses, however, has been that rapes there"appear to be carried out as a deliberate policy."[24] At least 8 percentof the reported rapes took place in custodial facilities, and many of theaccused attackers have reported that they were ordered to commit rape "toensure that the victims and their families would never want to return tothe area."[25] Clearly, this makes the crime of rape a much morecomplicated matter than it already was. As Guestnoted, the purpose of the Dayton-endorsed elections was to "sidelinenationalists and open the way for a more moderate brand of Serbpolitician."[12] As head of the Serb Democratic Party, Karadzic and, evenif he stepped aside, his surrogates played too important a role in thepolitical process to be ignored. 4 (1996): 85-92.Dworkin, Anthony. [35]Thornberry, 82. None of the four requirements that the tribunal must meet is easilyachieved, and, in some cases, success seems unlikely. This, inturn, is likely to send the region up in flames all over again. In an importantsense, the tribunal is concerned with the prosecution of the major warcriminals, those who have responsibility for inciting, planning andordering the systematic employment of human rights abuses of all kinds as astrategic means of waging war and as aspects of the ethnic cleansinginitiative. "Saving the War Crimes Tribunal." Foreign Policy no. [3]Teitel, 82. 4 (1996): 77. Among those who believe that the tribunal idea is sound,the principal concerns are that such an institution be established on asound legal basis, that it adhere to an acceptably high standard of dueprocess, that it administer equal and dispassionate justice, and that it beperceived by nations and individuals to be legitimate, fair and effective.Unfortunately, the Yugoslavia tribunal has not yet met all these standards--and may never be able to meet all of them in the fullest sense. The Genocide Convention is specifically designed to cover crimesagainst groups, as opposed to crimes against humanity which "do notnecessarily involve offenses against or persecutions of groups."[2] Butthe Convention also limits the crime of genocide to actions occurringbetween states. Thisposition supports the general idea of the rule of law, without reference tothe circumstances. At Nuremberg (and Tokyo), for instance, the trials were a postwarphenomenon, while the Hague tribunal began sitting when the war was stillin progress. "The International Criminal Tribunal for the Former Yugoslavia and International Law." East European Constitutional Review 5, no. Without the sense that they could actwith impunity, "few would be willing to engage in human rights abuses," andthose who were already familiar with repressive political regimes in theformer Yugoslavia believed that, just as political and military leaderspersistently escaped punishment for such deeds, anyone who served theircaused and followed their orders would be similarly immune.[22] The planning aspect of the atrocities in the former Yugoslavia isespecially important, since it is key to the concept of individualresponsibility that underlies the tribunal's operations. The U.N. Witness testimony is very much subject to change astime elapses, and witnesses, especially since the trials are not being heldon the site of the crimes, are often hard to locate. 4 (1996): 8 -85.Thornberry, Cedric. [17]Akhavan, 264. Despite "a hugeamount of corroborated evidence of what happened in Yugoslavia," timelinessis extremely important.[35] No substantial number of documents or filmedevidence, so far as is known, exist for any of the crimes of which theaccused are charged. panel of experts that recommended the establishment of thetribunal had concluded that "willful killing, organized massacres, torture,rape, pillage, and destruction of civilian property" had all been employedin the former Yugoslavia.[1] In eastern Bosnia, these atrocities were warcrimes that breached the Geneva Conventions and other international lawsgoverning conflicts between nations. [16]Ibid. First, thefailure of the U.N. "The International Criminal Tribunal for the Former Yugoslavia: A Preliminary Assessment." In Implementation of the Helsinki Accords: The War Crimes Trials for the Former Yugoslavia: Prospects and Problems, briefing of the Commission on Security and Cooperation in Europe, Washington D. The tribunal was, however, designed to avoid just this kind ofresult. If this paper is not what you are looking for, you can search again: Search for: or Click here to request an essay written just for you.