The Prosecutor is independent and does not seek or receive instructions from external agencies such as any government or international organisation, or from either of the Tribunal’s other two organs.
The ICTY’s Office of the Prosecutor (OTP) has investigated many of the worst atrocities to have taken place in Europe since the Second World War, such as the 1995 Srebrenica genocide and has successfully prosecuted civilians, military and paramilitary leaders for their responsibility over such crimes.
The OTP is, along with the Chambers and Registry, one of the Tribunal’s three organs. It is mandated to investigate and prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. The OTP is headed by a Prosecutor, who is appointed by the Security Council for a renewable four-year term.
The Prosecutor is independent and does not seek or receive instructions from external agencies such as any government or international organisation, or from either of the Tribunal’s other two organs. Pursuant to UN Security Council resolutions and the Tribunal's Statute, UN member-states are under an obligation to cooperate with the OTP's investigations and prosecutions.
The job of the Prosecutor is twofold: to investigate crimes and to present cases at trial and later, if necessary, on appeal. Over the years, the focus of the OTP’s work has shifted from investigations to prosecutions.
In accordance with the Tribunal’s completion strategy, the final indictments were issued at the end of 2004. In 2011, after many years on the run, the last remaining fugitives, Ratko Mladić and Goran Hadžić, were arrested and transferred to The Hague, thereby ensuring that none of the 161 individuals indicted by the Tribunal remain at large.
Mandate and Mission
The Office of the Prosecutor (OTP) is, along with the Chambers and Registry, one of the Tribunal’s three organs. It is mandated to investigate and prosecute persons responsible for some of the worst abuses of basic human rights and international humanitarian law that took place in Europe since the Second World War, those that occurred during the violent disintegration of Yugoslavia in the 1990s.
The OTP is headed by a Prosecutor, appointed by the Security Council for a renewable four-year term, and a Deputy Prosecutor, appointed by the UN Secretary General. The Prosecutor is independent and does not seek or receive instructions from external agencies such as any government or international organisation, or from either of the Tribunal’s other two organs.
The job of the Prosecutor is twofold: to investigate crimes and to present cases at trial and later, if necessary, on appeal. Over the years, the focus of OTP’s work has shifted from investigations to prosecutions and the two divisions now operate co-dependently as one prosecutorial division.
The legal process at the Tribunal is set in motion by the Prosecutor. There is no investigative judge at the Tribunal. It is the Prosecutor who decides when to initiate an investigation, what to investigate, which persons to prosecute and what the charges should be. Once the Prosecutor believes there are sufficient grounds to prosecute, an indictment is drafted listing the charges. The Prosecutor is fully independent in making these decisions. However, before a person can be accused and arrested, the indictment has to be confirmed by a judge who must be satisfied that there is enough evidence to support the charges.
Firstly a group composed of the President, the Vice-President and the presiding judges of the Trial Chambers determines that the indictment concentrates on one or more of the most senior leaders and that the crimes they are charged fall within the jurisdiction of the Tribunal. If it meets this standard then the Prosecutor submits the indictment and supporting evidence to a Tribunal judge to review. If the judge agrees that there is sufficient evidence to bring the accused to trial, he or she will confirm the indictment and issue an arrest warrant.
The Tribunal investigates and prosecutes four categories of criminal offences: grave breaches of the Geneva conventions of 1949, violations of the laws or customs of war, genocide and crimes against humanity. They include offences such as murder, torture, deportation, persecutions, enslavement, plunder, wanton destruction of towns or villages and willful damage to religious institutions.
OTP investigators with backgrounds in police work collect and examine evidence, identify and question witnesses and suspects, and conduct on-site investigations, including exhumations of mass graves. Unlike most crimes dealt with in national systems, many of those investigated by the OTP took place during the time of war and often involved wide areas, lasted for many months and were highly organised. They involved regular soldiers, armed police, paramilitaries, politicians and ordinary civilians.
The materials collected through investigations are used for raising indictments against suspected perpetrators. Defendants may be charged with one or both of the two types of individual criminal responsibility; firstly, for personally committing, ordering, planning, instigating or aiding and abetting crimes under the Tribunal's jurisdiction and secondly, for being in a position of authority and failing to prevent or punish the commission of such crimes by subordinates. The latter is known as "command responsibility".
The OTP only investigates and prosecutes individuals. Its jurisdiction does not extend to political groups, organisations, institutions or states. The Prosecutor can prosecute any individual, including those normally protected by traditional notions of immunity. By holding senior military and political leaders accountable for crimes, the Tribunal has demonstrated that even heads of state are not above the law.
In accordance with the Tribunal’s completion strategy, the OTP completed its investigations and issued the final indictments in 2004. The last remaining fugitives, Goran Hadžić and Ratko Mladić, were arrested and transferred to the Tribunal in 2011.
The Tribunal did not have its own police force and could not arrest suspects. It relied entirely on the assistance of state authorities and international bodies in the arrest and transfer of the accused. Pursuant to UN Security Council resolutions and the Tribunal's Statute, UN member states are under an obligation to cooperate fully with the OTP's investigations and prosecutions. In practice, however, this cooperation had often been lacking, especially from certain states that were once part of Yugoslavia.
Besides investigations, the other main task of the OTP is to present cases in court. Proceedings at the Tribunal are a unique blend of common (adversarial or "Anglo-Saxon") and civil (continental) law procedures. The prosecution is, with the defence, one of the two parties to the judicial process. The parties have the main responsibility for presenting evidence to the court. Because of their subject matter, trials at the ICTY often take longer and are more complicated than those at national level. The prosecution phase alone can last over a year in a single trial.
Cases at trial are heard by a panel of three judges. There is no jury at the Tribunal and, in addition to the prosecution and the defence, the judges may also examine the witnesses and call additional evidence. Judgements are rendered by the judges.
During the trial, the OTP’s trial attorneys call witnesses and examine them in the courtroom with the goal of demonstrating the defendant’s guilt beyond reasonable doubt to the judges. Witnesses can be victims, survivors or eye-witnesses, but also international officials, insiders, or even perpetrators. So-called expert witnesses can summarise the findings from research that they have conducted within their area of expertise, such as exhumations, population movements or military structures. Exhibits such as military orders, police reports, photographs and videotapes are often entered into evidence during the trial and discussed with the relevant witnesses.
The prosecution’s trial attorneys argue a wide range of legal matters before the court and prepare submissions such as motions or requests, or responses to submissions from the defence. At the end of each trial, both parties submit a final brief to the court, in which they summarise their views on the question of the guilt of the accused on the basis of the evidence presented during the trial and in accordance with the applicable law.
Most judgements before the ICTY are appealed by either the prosecution or the defence. The appeals are heard by a five-judge bench of the Tribunal’s Appeals Chamber. The appeal proceedings are conducted mainly in a written procedure. Lawyers from the OTP’s appeal section argue the cases on behalf of the prosecution.
Setting the Precedents
When the first investigators arrived at the Tribunal in 1994, they faced a daunting task - investigating crimes in the midst of war in which they had scant access to the crime scenes. There was little or no precedent in similar international criminal prosecutions to guide their work. The Tribunal's legitimacy was challenged by the very authorities on whose cooperation it depended for arrests and transfers of the accused. Investigators were denied access to crime scenes and permission to interview witnesses, two critical sources of evidence without which it would have been impossible to proceed.
Many investigations began far from the crime scenes, among the thousands of refugees who had fled the conflicts to other parts of the world. The first-hand accounts of the victims and witnesses of torture, rape, incarceration and persecution provided invaluable evidence against the persons who had physically committed the crimes, but they were unable to implicate those who may have been in command. As a result, the first indictments issued by the Prosecutor were against persons of lower rank, such as soldiers, camp guards or wardens.
As the Tribunal's credibility grew and cooperation of states improved, more opportunities for obtaining evidence opened up and it became possible to link persons in higher positions who could be regarded as most responsible for the crimes. Gradually the Tribunal tightened its principle focus on the highest-ranking political and military leaders.
The OTP has indicted 161 persons, among them a president, prime ministers and senior political and military leaders.
The investigations conducted by the OTP have greatly contributed to the establishment of certain facts about the war in the former Yugoslavia, such as the genocide in Srebrenica, the persecutions, torture and murder in the camps in Prijedor and across tens of other municipalities in Bosnia and Herzegovina, and the rapes in Foča. The trials at the ICTY have also been instrumental in breaking new ground in international humanitarian and criminal law, including the recognition of rape as a form of torture and crime against humanity, the application of the Geneva conventions and the "command responsibility" doctrine.
In December 2004, the Prosecutor issued the final indictment, marking the end of the first phase of the Tribunal's completion strategy. Nevertheless the work of the OTP continues. In addition to ongoing cases in The Hague, it provides support to national prosecutions by transferring evidence against lower and intermediary level accused collected through its investigations, thereby assisting in developing local legal infrastructures and contributing to peace and stability in the new states that emerged following the break-up of the former Yugoslavia.
The OTP has developed into a full-fledged international criminal prosecution body, laying the groundwork for other international criminal courts and making the prosecution of war crimes at the international level a reality.
Until recently, the OTP had a separate investigations division in addition to a prosecution division, which consists of trial and appellate sections. There is also an information and evidence section. Given the shift in work demanded by the completion strategy the office now works as one prosecutorial division. The OTP employs staff drawn from around 80 countries, whose experience as police officers, crime and forensic experts, analysts, lawyers, trial attorneys and legal advisers in national systems has been merged into a unique international criminal prosecution system.
The OTP is headed by a Prosecutor, elected by the Security Council for a renewable four-year term, and a Deputy Prosecutor, appointed by the Secretary-General of the United Nations.
The current Prosecutor is Serge Brammertz from Belgium. He was appointed on 1 January 2008. His predecessor was Carla Del Ponte from Switzerland (15 September 1999 to 31 December 2007). The first person appointed as ICTY Prosecutor was Ramon Escovar Salom from Venezuela (21 October 1993 to 3 February 1994), but he never took up the office. The first actual Prosecutor was Richard Goldstone from South Africa (15 August 1994 to 1 October 1996), followed by Louise Arbour from Canada (1 October 1996 to 15 September 1999).