The Yugoslav War Crimes Tribunal

Article excerpt

On the 7th May 1997, in a courtroom in The Hague, capital of the Netherlands, a short, stocky, sallow young man faced a panel of three judges in black robes with red facings to hear what their verdict would be.

His name was Dusan Tadic, and he was on trial before an international war crimes tribunal. He was a native of what had once been Yugoslavia in SouthEastern Europe, a former cafe owner and traffic policeman, and bit-player in the unfolding tragedy of that country which had begun seventeen years earlier in May 1980 when Josip Broz, known as Tito, the communist leader who ruled Yugoslavia for 35 years, died. Nineteen years after Tito's death, his successor, President Slobodan Milosevic, was indicted by the same international war crimes tribunal. He is the first serving Head of State to be indicted as a war criminal.

In that period of nineteen years, Yugoslavia collapsed into chaos, disintegration and ruin. Much of the time the world just watched the tragedy on its television screens and did little more than wring its bands. But from time to time action was taken. One such action was the NATO intervention in Kosovo. But that was not the only action.

An earlier action was the establishment by the United Nations of an ad hoc war crimes tribunal to try the perpetrators of crimes committed during the Yugoslav conflicts.

This article describes that tribunal. Part One outlines how it came into being, its organisation and jurisdiction. Part Two will examine how it functions, explain some of its difficulties and successes as well as refer to other developments, in particular the proposed Permanent International Criminal Court.

The Tribunal should be distinguished from the International Court of Justice, the history of which has been described in an earlier issue of Contemporary Review (see May 1999, pages 242-246). The International Court of Justice tries disputes between states and then only when the parties to the action accept the jurisdiction of the court; it has no jurisdiction over individuals. Its trials are not criminal trials and it cannot mete out punishment. That is not to say it has not had a role in the resolution of conflicts arising out of the former Yugoslavia. Bosnia is currently pursuing a claim against the present-day Yugoslavia (i.e. Serbia and Montenegro). And Yugoslavia sought to involve the Court in the Kosovo crisis by making a claim against all the NATO countries involved in that crisis: a dramatic move which resulted in the somewhat less than dramatic decision, at least on a preliminary matter, that the Court had no jurisdiction.

International law has long recognised that certain acts committed by individuals may render those individuals liable under international law. Jurisdiction over these acts is universal: that is, any state may try an individual who is accused of having committed those acts whether or not the individual is a national of that state and whether or not the acts were committed within the territory of that state. Piracy was the first of such crimes to be recognised: in the seventeenth and eighteenth centuries it was such a menace that it was generally agreed to be contra iure gentium (i.e. against the laws of all nations) enabling pirates to be tried by any court anywhere. This jurisdiction of national courts still exists: it is the principle under which Israel exercised its right to try Eichmann in 1964 for crimes against the Jewish people in Europe in World War II. Individual states may, however, have to amend their own laws: thus, the United Kingdom passed the War Crimes Act 1990 to enable it to try World War II criminals for crimes committed outside the United Kingdom. One man has been convicted under the Act.

The Yugoslav War Crimes Tribunal (properly called the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Former Yugoslavia, but in this article referred to as the Tribunal)was not the first attempt by the international community to deal with war crimes by individuals. …