15 -16 November 2011
World Forum conference centre, The Hague
Co-sponsored by the governments of The Netherlands, Luxembourg, Switzerland and the Republic of Korea, as well as the Municipality of The Hague and the Open Society Justice Initiative
The International Criminal Tribunal for the former Yugoslavia (“ICTY”) convened a two day conference, “The Global Legacy of the ICTY”, in The Hague on 15 and 16 November 2011. The Conference aimed to bring together leading academics, international judges and practitioners, state representatives, and members of civil society, to explore the impact of the Tribunal’s work on international humanitarian law and international criminal procedure, as well as the potential of its jurisprudence to shape the future of global justice and the advancement of human rights. The Conference was co-sponsored by the governments of The Netherlands, Luxembourg, Switzerland, and the Republic of Korea, as well as the Municipality of The Hague and the Open Society Justice Initiative.
As of 15 November 2011.
Since its establishment in 1993, the ICTY has completed proceedings against 126 accused persons for war crimes, crimes against humanity or genocide, thereby making great advances on the road to ending impunity for serious violations of international humanitarian law. These trials have generated a huge corpus of jurisprudence, which has contributed extensively to the development of international criminal law norms—substantive and procedural alike.
ICTY Judges have defined, often for the first time, the elements of offences, the impact of defences raised, the modes of criminal liability, and the scope of superior responsibility. The Kunarac et al. case, for example, delineated what constitutes enslavement as a crime against humanity and the relationship of gender crimes to the customary law.1 The Erdemović case determined that duress is not a complete defence to crimes against humanity or war crimes.2 The origins of the Tribunal’s application of joint criminal enterprise (JCE), now perhaps one of the most commonly used modes of criminal liability in international trials, stem from its first case, Prosecutor v. Duško Tadić. In that case, the Appeals Chamber set forth the three categories of JCE,3 which have since been further refined in such cases as Kvočka et al.,4 Brđanin,5 and Krajišnik.6 Notably, the ICTY relied upon the concept of JCE when indicting Slobodan Milošević for crimes in Kosovo, Bosnia, and Croatia.7 This was the first war crimes indictment against a sitting head of state.
In the Čelebići case, the Court clarified the responsibility of a superior, interpreting the Statute’s language regarding the requisite mens rea8 and the nature of the required superior-subordinate relationship.9 Kordić and Čerkez then affirmed the idea first stated in Čelebići10 that both civilian and military leaders may incur responsibility for acts committed by their subordinates.11
Various other judgements and decisions have further relied upon and interpreted international law instruments. In Tadić, the Appeals Chamber carefully considered the requirements for the applicability of the grave breaches provisions of the Geneva Conventions. In so doing, the Court clarified the legal criteria for distinguishing between international and internal armed conflict.12 Also, taking one step further the ICJ’s Nicaragua finding that Common Article 3 represents a minimum yardstick applicable also to international armed conflicts, the ICTY Appeals Chamber established that most of the protective rules of IHL are applicable to non-international armed conflicts. Tadić and its progeny have not been challenged, and have been accepted, by the international community. The Appeals Chamber also issued a detailed decision in that case, rejecting challenges to its legal foundation, its primacy over national courts, and its jurisdiction.13 Some of these findings later impacted negotiations on the Statute of the International Criminal Court.14
In Aleksovski, the Appeals Chamber considered the extent of the application of Article 4 of Geneva Convention IV, agreeing with the finding in Tadić that a person may qualify as a “protected person” even where he is of the same nationality as his captors.15
Scholars have also recognized the important role of the Tribunal in the realm of gender crimes, an area left largely undeveloped in the Nuremberg and Tokyo war crimes proceedings.16 For example, the accused Hazim Delić in the Čelebići case was the first before the Court to be convicted of rape as torture,17 which was charged as a grave breach of the Geneva Conventions and a violation of the laws or customs of war.18 The Furundžija case further clarified the definition of torture and set forth the specific elements of rape.19
Procedurally, the ICTY has developed a body of rules relating to the admissibility and disclosure of evidence, and to the protection of victims and witnesses. The Tribunal has drawn on aspects of both common law and civil law systems in an effort to balance the rights of victims and the accused, to protect the interests of justice and enhance the efficiency of proceedings. Conscious of trial management concerns and to rapidly codify lessons learned in the courtroom, the Tribunal has frequently amended its Rules of Procedure and Evidence to ensure efficiency without sacrificing fairness. For example, in December 2000, Rule 92bis was adopted, allowing written witness statements, including transcripts from other ICTY proceedings, to be admitted in lieu of oral testimony, as long as they do not go to the acts and conduct of the accused. Drawing from the best of Civil Law procedures, the rules introduced the institution of pre-trial and pre-appeal judges. Rules 92ter and 92quater, which also enable a more concise presentation of witness testimony, were added in September 2006. With respect to concerns for victims and witnesses, Judges may order appropriate protective measures pursuant to Rule 75. The Trial Chamber in the Milutinović et al. case utilized this Rule to ensure that witnesses are only present in the courtroom when the Judges are present, as a means of safeguarding witnesses from the risk of intimidation.20
In addition to these advancements, it is important to recognize the attention the Judges have given to a myriad of other pertinent issues, such as the right to self-representation,21 sentencing, and provisional release. More than anything else, the ICTY, going far beyond the legacy of Nuremberg, established a system based on the highest standards of fairness and due process.
The participants and invitees of the Conference included the Tribunal’s Principals, Judges, senior Tribunal staff, the Security Council Working Group on the ad hoc Tribunals, the Rule of Law Unit from UNHQ, representatives of the national academic and legal community from the former Yugoslavia, non-governmental organisations, international organisations, and organs of the European Union, legal counsellors of embassies in The Hague, representatives of universities, international law associations, think tanks, and international law scholars.
Over 350 persons participated in the Conference. The working sessions were organised in panel discussion format to encourage open debate. Each panel was composed of Tribunal Judges, scholars and practitioners in the fields of international human rights, humanitarian and criminal law, government representatives and UN officials. Each panel session was moderated by a high profile representative from one of these groups, and began with a 20 minute presentation by the moderator only. The moderator opened the panel for a related discussion amongst the panellists. Members of the audience had the opportunity to pose questions to the panellists during and after the discussion.
There were four panel sessions over the two-day Conference. Broadly, the topics were envisaged as:
- The impact of the Tribunal’s substantive jurisprudence on the elucidation of customary international humanitarian law.
- The impact of the work of the Tribunal on the future of global justice and the advancement and enforcement of human rights.
- The interaction of common and civil law procedures in the work of the Tribunal: efficiency and fairness in complex international trials.
- The Tribunal’s jurisprudential contribution to the clarification of the core crimes of genocide, crimes against humanity and war crimes.
The Conference was conducted in English, French and Bosnian/Croatian/Serbian with simultaneous interpretation.
The media were granted access to the Conference.
1. Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23, Appeal Judgement, 12 June 2002, paras 106-124.; Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23-T, Trial Judgement, 22 February 2001, paras 515-543.
2. Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Appeal Judgement, 7 October 1997, para. 19.
3. Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, paras 195-229.
4. Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Appeal Judgement, 28 February 2005, paras 79-119.
5. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Appeal Judgement, 3 April 2007, paras 357-450.
6. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Appeal Judgement, 17 March 2009, paras 153-248.
7. See Prosecutor v. Slobodan Milosević et al., Case No. IT-99-37-PT, Second Amended Indictment (Kosovo), 16 October 2001, paras 17-18, 53, 62-68; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Amended Indictment (Bosnia), 22 November 2002, paras 5-9, 24-26; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Second Amended Indictment (Croatia), 27 July 2004, paras 5-10, 26-28.
8. Prosecutor v. Zejnil Delalić et al. (“Čelebići”), Case No. IT-96-21-A, 20 February 2001 (“Čelebići Appeal Judgement”), paras 216-241.
9. Čelebići Appeal Judgement, paras 242-267.
10. Čelebići Appeal Judgement, para. 196 (“the Appeals Chamber does not consider that the rule is controversial that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their effective control”).
11. Prosecutor v. Dario Kordić & Mario Čerkez, Case NO. IT-95-14-2, Trial Judgement, 26 February 2001, paras 402-416.
12. Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999, paras 80-162.
13. Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
14. Payam Akhavan, Contributions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to Development of Definitions of Crimes Against Humanity and Genocide,94 Am. Soc’y Int’l L. Proc. 279, 280 (2000).
15. Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Appeal Judgement, 24 March 2000, paras 151-152.
16. Kelly Askin, Reflections on Some of the Most Significant Achievements of the ICTY, 37 New Eng. L. Rev. 903,909 (2002-2003).
17. Prosecutor v. Zejnil Delalić et al. (“Čelebići”), Case No. IT-96-21-T, Trial Judgement, 16 November 1998, paras 1253, 1262-1263; Prosecutor v. Zejnil Delalić et al. (“Čelebići”), Case No. IT-96-21-A, Appeal Judgement, 20 February 2001, para. 427.
18. Čelebići Appeal Judgement, 20 February 2001, paras 500-507; Prosecutor v. Zejnil Delalić et al. (“Čelebići”), Case No. IT-96-21-T, Trial Judgement, 16 November 1998, paras 475-496.
19. Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Appeal Judgement, 21 July 2000, paras 109-114; Prosecutor v. Anto Furundžija, Case No. IT-95-17-T, Trial Judgement, 10 December 1998, paras 159-186.
20. ICTY Manual on Developed Practices (2009), p. 201.
21. The right to self-representation has been addressed in a number of cases, including Milošević, Krajišnik, Šešelj, Tolimir, and Karadžić.