Global Policy Forum

By Rachel S. Taylor

The following is a beginner's guide to the law of the International Criminal Tribunal for the Former Yugoslavia (ICTY). It is not an official document and has not been formally approved by the Tribunal. For authoritative information about Tribunal law, please consult the ICTY directly.

What is the ICTY, How Was It Established, and What Types of Cases Can it Hear?

Establishment and Mission of the ICTY:

(see ICTY's Basic Legal Documents)

The ICTY was established on May 25, 1993 by the United Nations Security Council through Resolution 827. The Security Council created the tribunal in an attempt to address the "widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of 'ethnic cleansing', including for the acquisition and the holding of territory".

The court was founded under Chapter VII of the United Nations Charter, which allows the Security Council to take action to maintain or restore international peace and security

to try persons charged with violating international humanitarian law in the former Yugoslavia;

to bring justice to the victims of the war;

to deter future crimes; and

to contribute to the restoration of peace by promoting reconciliation in the region.

The Statute:

(see ICTY's Basic Legal Documents)

The Statute establishes the ICTY's jurisdiction (who the tribunal can prosecute, and for what), describes its composition, and outlines in general terms its organisational and operational structure as well as its criminal procedure. The tribunal judges were tasked with writing the Rules of Procedure and Evidence, which regulate the court's operation in greater detail (see below). The Statute was adopted by the Security Council as part of Resolution 827 of 25 May 1993, the same resolution that established the tribunal. The Statute has been amended five times to date. Most changes have been aimed at increasing the capacity of the trial chambers to process more cases, for example, by providing more judges and chambers, and establishing a pool of judges for specific cases (ad litem judges).

Jurisdiction:

The Statute describes who the ICTY can prosecute, and for what. In legal terms, this is known as jurisdiction. The Statute makes clear that the tribunal has jurisdiction over individuals (not organisations or groups) who allegedly committed any of the following crimes on the territory of the former Yugoslavia after January 1, 1991:

Grave Breaches of the Geneva Conventions of 1949:

This includes any of the following acts against persons or property protected by the Geneva Conventions:

a) wilful killing;
b) torture or inhuman treatment, including biological experiments;
c) wilfully causing great suffering or serious injury to body or health;
d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
g) unlawful deportation or transfer or unlawful confinement of a civilian;
h) taking civilians as hostages.

Violations of the Laws or Customs of War:

This includes, but is not limited to:

a) use of poisonous weapons or other weapons calculated to cause unnecessary suffering;
b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
e) plunder of public or private property.

Crimes Against Humanity:

This includes the following crimes committed against a civilian population during an international or internal armed conflict:

a) murder;
b) extermination;
c) enslavement;
d) deportation;
e) imprisonment;
f) torture;
g) rape;
h) persecutions on political, racial and religious grounds;
i) other inhumane acts.

Genocide:

Genocide is defined as:

a) killing members of a group;
b) causing serious bodily or mental harm to members of the group;
c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) imposing measures intended to prevent births within the group;
e) forcibly transferring children of the group to another group.

The following acts are punishable as genocide:

a) genocide;
b) conspiracy to commit genocide;
c) direct and public incitement to commit genocide;
d) attempt to commit genocide;
e) complicity in genocide.

Legal Basis for Offences:

A person cannot be punished for an act that was not illegal when he or she committed it.

As such, the Statute does not create new crimes or establish new forms of criminal responsibility. Rather, each of the offences over which the ICTY has jurisdiction including Grave Breaches of the Geneva Conventions of 1949, Violations of the Laws and Customs of War, Crimes Against Humanity and Genocide were already prohibited in the former Yugoslavia from January 1, 1991 onwards, the time for which the tribunal has jurisdiction.

Said another way, the Statute does not make new law, but rather applies existing law. Specifically, the offences over which the ICTY has jurisdiction are outlawed in the Geneva Conventions of 1949, the Genocide Convention of 1948, the Nuremburg Charter of 1945 and the Hague Convention (IV) of 1907. These are all considered part of customary international law and, as such, were binding on the territory of the former Yugoslavia throughout the time for which the court has jurisdiction.

Types of Responsibility:

The Statute makes clear that defendants may be charged with two different types of criminal responsibility. The first type applies to persons who personally planned, instigated, ordered, committed or aided and abetted in crime(s) under the ICTY's jurisdiction. The second type applies to persons in positions of authority whose subordinate(s) committed such crime(s) if the superior knew or had reason to know that the subordinate was about to commit such crimes or had done so and the superior did not take measures to prevent the crimes or punish the subordinate. In the first type of situation, the accused did something (i.e., committed or ordered a crime); in the second, the accused failed to do something (i.e., failed to prevent or punish a crime).

Rules of Procedure and Evidence:

(see ICTY's Basic Legal Documents)

The ICTY's Rules of Procedure and Evidence, drafted and amended by the tribunal's judges, regulate how criminal proceedings are conducted at the ICTY. The original rules were adopted by the tribunal's judges on February 11, 1994. The Statute mandates that trials meet internationally-recognised standards of fairness and the rules embody these standards. They establish a presumption of innocence, and make clear that the burden of proof (the standard of which is proof beyond reasonable doubt) falls on the prosecution. They also make clear that both parties have the means to present their cases. They provide that the accused has the right to be present at his or her trial (trial in absentia is not allowed), and to use his or her language throughout the proceedings. They also make clear that the tribunal cannot impose the death penalty and that the parties have the right to appeal a decision.

In addition, the rules also provide the right to a public hearing, the right of the accused to test prosecution evidence and present evidence on his own behalf, and the right to be protected against self-incrimination. The rules have been amended 30 times to date. In general, changes have been made with the intention of better safeguarding the rights of the accused and making the proceedings more efficient.

What is the Relationship between the ICTY and National Courts in the Former Yugoslavia?

Concurrent Jurisdiction with National Courts:

The ICTY and national courts have concurrent jurisdiction. This means that national courts may also prosecute prsons for acts committed on the territory of the former Yugoslavia after January 1, 1991. However, the ICTY has primacy over national courts and may formally request national courts to defer cases to the Tribunal. No person already tried by the ICTY may later be tried by a national court for the same crime. No person already tried by a national court may later be tried by the ICTY for the same crime, except in two types of situations: when the act for which the accused was tried was classified by the national court as an "ordinary crime"; and when the national court proceeding was not conducted in good faith. The tribunal makes this determination.

Who's Who at the ICTY?

Composition of the ICTY:

The ICTY is made up of three main branches: the Chambers, the Registry, and the Office of the Prosecutor.

Chambers:

The Chambers comprises 16 permanent judges, no two of whom may be from the same state at any given time. There may also be a maximum of nine judges who are appointed for only one case (ad litem judges), chosen from a pool of 27 judges. No two ad litem judges may be from the same state at any given time. The ICTY has three trial chambers and one appeals chamber. In the former, three judges are assigned to hear each case; at least one of these must be a permanent judge. Seven permanent judges are members of the appeals chamber; of these, five will hear any appeal. Judges listen to courtroom testimony and arguments, issue judgments about the guilt or innocence of the accused, and determine sentences. In addition, the permanent judges also draft and adopt the tribunal's basic legal documents, such as the Rules of Procedure and Evidence and the Rules of Detention.

The Registry is responsible for the administration of the ICTY. Among other things, registry personnel translate documents, interpret court proceedings, schedule hearings, manage the ICTY's legal aid programme, provide assistance to witnesses, oversee the United Nations Detention Unit and provide information to the media and the public.

Office of the Prosecutor (OTP):

The Office of the Prosecutor is an independent body, separate from the United Nations Security Council, governments, international organisations, and other branches of the ICTY. It is responsible for the investigation and prosecution of cases. The OTP is headed by a chief prosecutor, elected by the Security Council for a renewable four-year term, and a deputy prosecutor, appointed by the UN Secretary General. Within the OTP, there are also additional prosecutors, investigators (both in The Hague and in the countries of the former Yugoslavia), legal advisors, and persons responsible for overseeing the office's data.

How is a Case at the ICTY Initiated and Conducted?

Investigation:

The prosecutor may initiate an investigation on the basis of information received from any source. In so doing, she may question suspects, victims, and witnesses; collect evidence; and conduct on-site investigations.

Indictment:

If the prosecutor believes that there are reasonable grounds for believing the suspect committed the crime(s) for which he or she is accused, she will issue an indictment laying out the alleged facts and crime(s). The prosecutor will then submit the indictment to the registrar. The registrar will consult with the tribunal's president and the president will refer the matter to the Bureau (the president, vice-president and the presiding judges of the trial chambers). The Bureau will determine whether the indictment, on the face of it, "concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the tribunal". If the Bureau finds the indictment does not meet this standard, the tribunal's president will return it to the registrar, who will alert the prosecutor of this decision. If the Bureau finds that it does meet the standard, the tribunal president will refer the case to a judge of the trial chamber judge for his or her review.

The judge can confirm any or all of the counts for which he or she believes a prima facie case exists. The judge can also request additional evidence from the prosecutor, confirm some counts and dismiss others, or dismiss the indictment in its entirety. This back-and-forth process is all done away from public view; all that is ever seen openly is the final indictment that has been approved by the judge. Indictments may be open to the public or sealed. An indictment can be kept sealed when the tribunal determines that this is in the interest of justice. One example of such a situation could be where this would help facilitate the arrest of the person accused. In such a case, a judge will order the indictment be made public after the accused is arrested or has turned him or herself over to the tribunal.

Surrender/Arrest/Transfer:

After a judge confirms an indictment, he or she may issue, at the request of the prosecutor, an arrest warrant or an order for the indictee's surrender, detention, transfer etc. Because the ICTY was created by the Security Council under Chapter VII of the UN Charter, all states must cooperate with the tribunal. As such, states must act on all tribunal orders including those for the arrest and transfer of accused persons.

NOTE: Use the phrase "surrender and transfer of accused" when referring to the handover of a defendant to the ICTY do not use the term "extradition". Extradition involves two states, and is generally regulated by a bilateral treaty. By contrast, the ICTY is not a state and no treaty is required before states hand defendants over to it.

Initial Appearance and Plea:

As soon as an accused arrives at the ICTY, he or she will make an initial appearance before Chambers. At this appearance, the judges will read the indictment (the accused can waive this right); ensure the accused has been made aware of his/her rights; verify that the accused understands the indictment; and ask him/her to enter a plea. (The accused can enter a plea at this appearance, or at any time within the next 30 days.) When the plea is entered, tribunal deadlines begin running.

If the accused refuses to enter a plea, or does not do so within 30 days, the court will enter a plea of "not guilty" on his/her behalf. In such a case as well as in cases where the accused personally enters a plea of "not guilty" the proceedings will then begin to run their course. If, however, the accused enters a plea of guilty (either initially or after making a plea agreement), the court must ensure that the plea is voluntary, informed, unequivocal, and that there is adequate factual basis for the crime and the accused's role in it. If the judges are satisfied that these criteria are met, they will enter the accused's guilty plea and ask the Registrar to schedule a sentencing hearing.

Defence:

Every defendant has the right to counsel of his/her choosing. A counsel will be considered competent to represent an accused if he or she speaks English, French, or, where the accused requests it and the interests of justice demand, the suspect's native language; is authorised by a state to practice law or is a university professor; and is a member of an association of counsel recognised by the registrar.

If a defendant cannot afford counsel and demonstrates this to the tribunal he or she may demand that the court assign and pay for counsel for him/her. The Registry will assign such counsel from a list it maintains of persons who meet the above-mentioned requirements; have shown that they have experience in criminal and/or international law; and have expressed an interest in being assigned by the tribunal to represent an accused. These counsel are paid a fixed fee of 2,000 US dollars plus an hourly rate determined by the Registry based on the counsel's seniority and experience. All such matters are handled by the Registry's Office of Legal Aid and Detention Matters (OLAD). A defendant may also choose to represent him or herself.

Pre-Verdict Detention:

Before and during trials and appeals, defendants are held in the United Nations Detention Unit (UNDU). The UNDU is housed within a prison in the Netherlands, but is run by the Registry (not the Dutch government). A defendant may request to be provisionally released pending his/her trial. If Chambers grants the request, the defendant must return to the UNDU when the trial begins. This has happened on a number of occasions.

The Trial:

The ICTY has three courtrooms, each of which is used in two shifts, from 9:00 am to 1:45pm and again from 2:15pm to 7:00pm. As such, up to six different trials may be held at the same time. Three judges are assigned to each trial. Court rules include elements of both the common law and civil law systems. There is no jury present. During the trial, the prosecutor, upon whom the burden of proof rests, will attempt to prove each charge made in the indictment beyond reasonable doubt. The defence may choose to attempt to disprove each charge.

Evidence may be from witnesses or from written documents.

Each trial is structured as follows:

1. The prosecution presents its opening statement.

2. The defence may choose to present its opening statement. (The defence may alternatively choose to present its opening statement immediately before presenting its own evidence.)

3. The defendant may elect to make a statement if the trial chamber permits. He or she is not compelled to make a solemn declaration before doing so, and is not examined about what he or she says. If the accused chooses to speak at a later time, he or she must do so under oath.

4. The prosecution presents its evidence witnesses and written documents. The defence is allowed to cross-examine the prosecution's evidence. The prosecution is allowed to re-examine its evidence.

5. If the defence did not already present its opening statement, it may do so now.

6. The defence presents its evidence witnesses and written documents. The prosecution is allowed to cross-examine the defence's evidence. The defence is allowed to re-examine its evidence.

7. The prosecution issues a rebuttal, presenting its case in light of the claims the defence made. The defence is allowed to cross-examine the prosecution's rebuttal. The prosecution is allowed to re-examine its rebuttal.

8. The defence issues a rejoinder, presenting its case in light of the claims the prosecution made. The prosecution is allowed to cross-examine the defence's rejoinder. The defence is allowed to re-examine its rejoinder.

9. The judges may order either party to produce additional evidence or may, themselves, summon witnesses to the tribunal. The prosecution and defence are allowed to cross-examine the new evidence or witnesses.

10. At any time throughout this process, the judges may ask their own questions of the witnesses.

11. The prosecution presents its closing statement, addressing sentencing recommendations in the process. (It will have submitted a final trial brief at least five days earlier.)

12. The defence presents its closing statement, addressing sentencing issues in the process. (It will have submitted a final trial brief at least five days earlier.)

13. The judges retreat to deliberate. There is no set time-limit for deliberations.

14. When the judges are ready, they issue the judgment, in which they give their verdict, explain the reasons for their decision and, if they find the accused guilty, impose a sentence. The decision must be agreed by two of the three judges on the panel. If a judge remains in the minority or wishes to clarify his or her reasoning, he or she can a write a dissenting or separate opinion.

15. If the defendant is acquitted, he or she is immediately released. If the defendant is convicted and sentenced, he or she will be transferred to serve the sentence.

Sentences:

The maximum sentence the ICTY can issue is life imprisonment. The death penalty is not permitted. The Statute provides that in determining sentences, judges are advised to consider practices in the former Yugoslavia, as well as aggravating and mitigating factors. The sentences are served in states that have signed agreements on the enforcement of sentences with the ICTY. To date, these include: Austria, Denmark, Finland, France, Germany, Italy, Norway, Spain, Sweden, and the United Kingdom.

Appeals:

Both the prosecution and the defence can appeal any part of the verdict or the sentence. The decision of the appeals chamber is final. If, however, a fact is discovered that was not known, and could not have reasonably been known, at the time of the proceedings before the trial chamber or appeal chamber, the defence or (within one year of the judgment) the prosecution may ask Chambers to review the judgment.

Pardons and Commutations of Sentences:

If a defendant becomes eligible for a pardon or a commutation (shortening) of his/her sentence under the law of the state in which he or she is imprisoned, the state will inform the ICTY of this situation. The tribunal president will then determine whether such a pardon or a commutation of sentence is appropriate, after consulting with the other judges.