In the 1980s and 1990s Eastern Europe was dealing with a crisis as civilians in Croatia, Bosnia and Herzegovina (the former Yugoslavia) were facing rape, torture, murder and expulsion due to armed conflict. In 1993, after years of violence in the former Yugoslavia, the United Nations Security Council (UNSC) took action and passed resolution 827 to create an international tribunal to bring criminals from this massacre to justice. After more than 24 years of existence, the ICTY closed its doors in December 2017, marking the end of an era.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was the first of its kind – a criminal court established by the United Nations (UN) in order to bring criminals thought to be responsible for the gravest crimes to justice. It also marked the first time the UNSC used its powers to maintain peace and security under the UN Charter to create an independent legal body within the UN system. Allowing the UNSC to create the ICTY allowed the Court to establish a new interpretation of the Charter which, arguably, expanded the UNSC’s peacekeeping powers from mere sanctions and blessings of armed defense to something more. It was a bold strategy that was inspired by the success of the Nuremberg and Tokyo trials with the hope to expand the UN’s peacekeeping abilities and bring stability to a region that had been ravaged by violence for years.
The ICTY created the foundation for current international criminal legal standards. It was the first court to definitively lay out the aspects of rape as a crime against humanity and as a war crime. The court’s standard allowed for persons of any gender or sex to come forward with an allegation of rape and ensured that such a gender-involved crime was prosecuted at the highest level. Moreover, the ICTY’s formulations of joint-enterprise and command responsibility allowed the Court to establish that those up the chain of command could be held responsible for horrendous crimes perpetrated by underlings. These criminal definitions and standards set out by the ICTY set the stage for the creation of the International Criminal Court. Moreover, the ICTY proved that such grave crimes would not be tolerated by the international community.
While the ICTY did pave the way as a new international judicial branch, it also had some issues. The Court itself was bogged down with procedural issues and difficulties with making arrests that made each case take years to process. For example, in the case of Ratko Mladic, a war criminal accused of planning a genocide against Muslim men and boys in Srebrenica and orchestrating the tragic siege of Sarajevo, it took the court sixteen years from its original indictment to gain custody of this infamous criminal. These delays were mostly due to a lack of cooperation from national forces who refused to find or appeared unable to locate these war criminals. Arrest delays were not uncommon in the ICTY and led to lengthy and difficult prosecutions.
Moreover, the investigations undertaken by the ICTY were often difficult and expensive endeavors. Although the Court did begin to pave the way for best practices related to investigating large scale crimes such as genocide or other crimes against humanity – the Office of the Prosecutor (OTP) had difficulties protecting evidence due to the ongoing conflict and the sheer scale of the crimes led to long and painstaking investigations.
The ICTY also faced much criticism as to whether or not it was a successful tribunal. The ICTY was created under the auspices of maintaining peace and security in the region and it is arguably the case that the creation of the Court did not encourage the warring factions to come to terms of peace in the former Yugoslavia. Moreover, after the conflict was over, it is questionable as to whether the ICTY was able to provide any semblance of lasting peace in the area. Many people are still left displaced and removed from their original homes and racial tensions still run high across Croatia, Bosnia and Kosovo.
The ICTY was, however, able to bring about 161 indictments and complete 126 cases thus showing the ability of a UN-created court to enforce international law somewhat effectively. Moreover, the ability of the ICTY to establish these first definitions of war crimes and crimes against humanity as well as its initial procedural processes provided an important first step to the creation of the International Criminal Court. The ICTY, in the end, was a pioneering Court that helped establish the practice of international criminal law as we know it today.
Brittany Davis is a second-year student at Columbia Law School and a staff editor of the Journal of Transnational Law. Prior to beginning law school, she was an intern at the Ontario Legislature and holds a B.A. from McGill University in English Literature.