With today’s dramatic Appeals ruling in the case Prlić et al., the curtain has been drawn on the International Criminal Tribunal for the Former Yugoslavia (ICTY). Throughout its tenure, the UN Court has played a pivotal role in irrevocably shaping the identity and structure of international criminal law.

Indeed, along with its counterpart, the International Criminal Tribunal for Rwanda (ICTR) (whose term ended in December 2015), the ICTY embodied the paradigm shift that  took hold of international criminal law following decades of hiatus during the Cold War era. Though the fight against criminal impunity traces its roots back to the Nuremberg Charter and subsequent Tribunal which were established as a reaction to the horrors of World War II, it took  two of the darkest episodes of human conflict to shed  light on the need for a new international legal order that would guarantee  protection against core crimes.

 

Background:

The establishment of the ICTY in 1993, followed by that of the ICTR the subsequent year, marked the first concrete step in over fifty years to provide an institutional framework, and consequently realise the seminal Nuremberg principles. Difficult as it might be to imagine, twenty years ago there was nothing to guarantee that individuals who commit crimes against international law would face justice. Much depended on a patchwork of domestic laws, often being at the mercy of the very individuals committing the atrocities. This was a far cry from the first and second Nuremberg principles, which provide for the notion of individual criminal responsibility and universal application of international law, respectively.

The decision to take action against  Yugoslavia and Rwanda needs to be  understood  in the proper context. The fall of the Berlin Wall and the  decline of the Soviet Union regenerated discussions on the nature and extent of the international legal order. While some believed that the full scope of international criminal law would not be attained without strong emphasis on universal jurisdiction, new states at the time feared that this could be a Trojan Horse for foreign meddling in their internal affairs. However, Faced with the crude reality of wanton violence in Rwanda, Yugoslavia, Cambodia and Somalia, the international community broadly recognised that the occurrence of crimes against international law (and resultantly, the application of international criminal law) is not limited to international conflicts. Indeed, in its very first cases, the ICTY declared:

“It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict”.

 

Shaping International Criminal Law as we know it:

It may be perhaps equally difficult to realise the scale of the contribution made by these ad-hoc tribunals to key concepts which today form the cornerstone of the canon of international criminal law. Akayesu produced the first conviction for genocide since the adoption of the 1948 Genocide Convention, and in doing so delivered a ground-breaking interpretation of what constitutes the offence. Its definition, based on the presence not only of the dolus generalis (the intention to carry out an act) but also the dolus specialis (the further, simultaneous intention to achieve the destruction in whole or in part of a national, ethnic, racial or religious group) eventually made its way to Art.6 of the Rome Statute. It is further worth noting that this judgment was also ground-breaking in defining the notion of genocidal rape in a manner which was revolutionary in its broad implications.

The ICTY in particular, was ground-breaking in its expansion on the notion of superior responsibility. Consequently, it has become clear that it is not only the person behind the trigger who is to be held individually and criminally responsible, but also the person/s planning, instigating, ordering or otherwise aiding or abetting the crime in any of its stages be it military commander, political figure or ethnic leader. In Tadic, the Appeals Chamber used this element as a tangent in order to deliver a detailed overview of the notion of joint criminal enterprise (JCE). The latter effectively means that liability does not solely extend to those materially performing the crimes, but also to all those who contribute to their commission in furtherance of a common criminal purpose. This was in itself a watershed moment for the Tribunal, as by deriving a concept straight out of customary international law, it effectively stepped beyond the demarcations of its constitutive Statute.

 

Delivering sentences against a fractured backdrop:

No analysis (albeit as brief as this) of the ICTYs legacy may ignore the geopolitical context against which its most seminal decisions were delivered. In approaching its judgments, one would suspect that the Tribunal was well aware of the major accusations levelled at the previous major exercise in delivering international criminal justice. Yet the two Tribunals went further than merely steering clear from the pitfalls of Nuremberg and Tokyo, setting the tone with respect to the goals to be pursued in determining cases.

In this context, one has to recognise the considerable discretionary latitude enjoyed by the Tribunals, both by virtue of the broadly-worded positive law, as well as the lack of precedent at the time. However, from an early stage the judges sitting on the Tribunals set out to posit a well-defined framework of guiding aims in order to develop a pattern of consistency in the manner in which punishment is meted out. These encompass principles such as justice, retribution, deterrence, and rehabilitation, among others. In particular, the interplay between retribution and deterrence has been crucial in the development of the distinctly broad undertones of the Tribunals jurisprudential legacy. As posited by Dumbl:

“The ICTY has issued judgments that cite retribution and general deterrence as ‘equally important’, judgments that cite retribution as the ‘primary objective’ and deterrence as a ‘further hope’, warning deterrence ‘should not be given undue prominence’, and judgments that flatly state ‘deterrence is probably the most important factor in the assessment of appropriate sentences’”

 

That said, a marked effort by the Tribunals not to degenerate into purely dogmatic considerations was noted throughout the judgments. Considerations such as proportionality and gradation were constantly used to the deliver or revise (as the case would be) punishments which sought to reflect the significance of the offender in the broader context of the respective conflict. In Tadic for example, the Appeals Chamber reduced the original sentence due to the accuseds relatively low ranking within the command structure. Indeed, some decisions have been criticised for relying too much on the consideration of gravity in concreto (i.e. in relation to the factual background and overall circumstances), rather than in abstracto analyses based purely on legal considerations of the elements of the crime. In this ambit, one must also note the number of aggravating and mitigating factors which have been utilised across a number of judgments, especially with respect to the treatment and attitude towards victims on part of the accused. However, the manner in which these factors have been accounted for, and the bearing on the overall sentencing has varied.

 

Concluding remarks:

Along with its Rwandan counterpart, the ICTY has been instrumental in paving the way for the remarkable rise of international criminal law as the principal safeguard against impunity. With the end of this seminal chapter, the focus will now invariably shift on the long-term legacy of this experiment in international justice. The International Criminal Court now heading towards its second decade of existence is facing criticism and withdrawals from certain states, amidst accusations of African bias. Indeed, one of the major lessons we may take from the Yugoslavia Tribunal is that socio-political considerations will always be at arms length from the very workings of International Criminal Law.

This is to be expected when the horrors, complexities and realities of some of the most violent episodes of our time are reduced to proceedings before a court of justice. Ultimately, this might also be the reason why any discussion on the degree of success of these initiatives can never yield complete consensus: the countless different measures utilised quash any hope of unanimity of opinions. However, one most basic outcome which might get closest to achieving universal recognition is that in a post-ICTY world, individual accountability has become an expectation, and impunity is no longer the last word.

 

References:

  • International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Dusko Tadic a/k/a “Dule”: Decision on the defence motion for interlocutory appeal on jurisdiction, Decision of 2 October 1995, Case No. IT-94-1-AR72, p. 72, para. 141.
  • Barbora Hola, ‘Sentencing of International Crimes at the ICTY and ICTR’ (2012) Amsterdam Law Journal Vol. 4, No. 4, pp. 3-24, 2012 <https://ssrn.com/abstract=2187528>
  • Cf. M. Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007) pp. 60-61