Implementing International Humanitarian Law

From The Ad Hoc Tribunals to a Permanent International Criminal Court

Yusuf Aksar

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135755386
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Implementing International Humanitarian Law examines the international humanitarian law rules and their application by the ad hoc tribunals with regard to the substantive laws of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal Rwanda (ICTR). The practice of the ICTY and the ICTR and their contribution to international humanitarian law, together with their possible impact on the International Criminal Court, is examined in light of the decisions rendered by the ad hoc tribunals and of the latest international humanitarian law instruments such as the 1996 ILC Draft Code of Crimes Against the Peace and Security of Mankind and the ICC Statute.

Part 1

The Establishment of the Ad Hoc Tribunals (the ICTY and the ICTR) and the International Criminal Court (the ICC)

1

The Establishment of the ICTY and the ICTR

Introduction

As is well known, in 1945 and 1946 after the Second World War, the International Military Tribunal at Nuremberg (the Nuremberg Tribunal) and the International Military Tribunal for the Far East (the Tokyo Tribunal) were established by the Allied Powers to prosecute German and Japanese war criminals.¹ In 1993 and 1994 for the first time since the Nuremberg and Tokyo trials, the international community created two further international criminal tribunals to try individuals charged with violations of international humanitarian law. The first is the ICTY which was established by UN Security Council Resolution 827 of May 1993² ‘to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’.³ The second is the ICTR which was set up again by the Security Council Resolution 955 of 8 November 1994⁴ ‘to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994’.⁵

In contrast to the Nuremberg and Tokyo Tribunals ,⁶ the Yugoslavia and Rwanda Tribunals were established by the Security Council on behalf of the entire international community in order to maintain or restore international peace and security.⁷ For this reason, these two tribunals can be seen as the first truly established international criminal tribunals for the prosecution of those persons who are responsible for serious violations of international human rights law and of international humanitarian law.⁸

In this chapter, before examining the legality of the establishment of the ICTY and the ICTR in light of the practice of the ad hoc tribunals, the legal and factual conditions which led the UN Security Council to establish international criminal tribunals in the former Yugoslavia and Rwanda will be briefly explained below.

The Situations in the Former Yugoslavia and Rwanda

In the last decade of the twentieth century, the international community witnessed two major human rights tragedies; one of them in the heart of Europe (in the former Yugoslavia) and the other in the central African State of Rwanda. As will be seen in detail in the following sections, the types of crimes committed in the former Yugoslavia included genocide, torture, rape or other forms of sexual assaults used as an instrument of war and the practice of ethnic cleansing, mistreatment of civilian prisoners, destruction of personal, historical and cultural public property, forceful displacement of the civil population and attacks on schools, hospitals and so on. Similarly, in Rwanda, hundreds of thousands of people have suffered the same forms of ill treatment in violation of human rights and of international humanitarian law.

The Former Yugoslavia

The Socialist Federal Republic of Yugoslavia which was situated in the Balkan Peninsula, consisted of six republics (Slovenia, Croatia, Serbia, Bosnia-Herzegovina, Montenegro, Macedonia), and two autonomous regions (Kosovo and Vojvodina).The ethnic and religious structure of the republics of the former Yugoslavia is one of the most complex in the world.⁹ In this context, before the dissolution of the Socialist Federal Republic of Yugoslavia, Slovenia was comprised of 90 per cent ethnic Slovenes and 10 per cent ethnic minorities of Serbs, Croats and Hungarians. Croatia was comprised of 85 per cent ethnic Croats and 11.5 per cent ethnic Serbs, who predominantly inhabit Krajina and Petrinja. Two-thirds of the population of Serbia are ethnic Serbs. This includes Kosovo with, at that time a 91 per cent ethnic Albanian population, and Vojvodina with a 19 per cent ethnic Hungarian population; these were formerly autonomous regions that were incorporated into Serbia in September 1990. Bosnia-Herzegovina has 40 per cent Muslims, 32 per cent Serbs and 18 per cent Croats. Two-thirds of Montenegro’s population are Montenegrins and the minority is made up of Muslims and Albanians. Macedonia consists of 67 per cent Macedonians, 20 per cent Albanians and other minorities.¹⁰

Prior to the disintegration of the former Yugoslavia, there were relatively few manifestations of ethnic problems in this part of Europe.¹¹ Formally, the dissolution of the former Yugoslavia began on 25 June 1991 when Slovenia and Croatia declared their independence from the Yugoslavian Federation, following their own Assemblies’ resolutions on 20 February 1991 and 21 February 1991 respectively.¹² This had preceded a referendum in Slovenia on 23 December 1990 in which 88.5 per cent of the Slovenes voted in favour of independence from Yugoslavia. ¹³ The ethnic Serbs in Slovenia and Croatia responded by declaring their own autonomous regions: On 13 August 1991, the Serbs in Slovenia declared a ‘Serbian Autonomous Region of Western Slovenia’. In Croatia, this ethnic group had shown their intention to do the same in a referendum held on 12 May 1991 in which they manifested their wish to remain a part of the Yugoslavian Federation. ¹⁴

The process of disintegration in the former Yugoslavia eventually descended into a series of military clashes which gave rise to some of the worst human rights violations yet seen. The parties involved in the conflict were varied and the place of the conflict changed at various times from Slovenia to Croatia and lastly to Bosnia-Herzegovina. ¹⁵

Generally speaking, the military conflicts in the former Yugoslavia involved three phases:¹⁶

The first phase involved the conflict in Slovenia and it began when Slovenia declared its independence from the former Yugoslavia on 25 June 1991. The warring factions in this conflict were the Yugoslav People’s Army (JNA), Slovenia Territorial Defence Forces and local Slovenian Police, and this phase lasted for a few weeks in June and July 1991.¹⁷

The second phase involved the conflict in Croatia and started before that Republic formally declared its independence on 25 July 1991. It involved on the one hand the JNA, Serb militia in Krajina and in eastern and western Slavonia, special forces from Serbia, local special forces, and Serb police and armed civilians; on the other hand the newly formed Croatian Army, the Croatian National Guard, local militia special forces, local Croatian Police and armed civilians. Although the JNA officially withdrew from Croatia in November 1991, it continued to support the newly formed, self-declared ‘Serb Republic of Krajina’ army.¹⁸

The third and last phase of the conflict was in Bosnia-Herzegovina and began following its declaration of independence on 6 March 1992. The conflict in Bosnia and Herzegovina was the most terrible one and involved the following warring factions: Croatian and Bosnian Government forces, Bosnian Government and Serbian forces, and Croatian and Serbian forces. The Croatian Army, local Croatian police, volunteer civilians and ‘special forces’ supported the Croatian Defence Council in Bosnia-Herzegovina. The fighting between the Bosnian Government and JNA lasted from April to June 1992 when the JNA ‘officially’ withdrew from Bosnia and Herzegovina, leaving behind JNA Serbian troops and their military equipment.¹⁹ In addition to the regular armies of the Federal Republic of Yugoslavia²⁰ (FRY), Croatia and Bosnia-Herzegovina, there were three additional armies taking part in the conflict, namely, the Bosnian-Serb Army, the Serbian Army of Croatia and the Croatian Defence Council.²¹

While the conflict was continuing in the former Yugoslavia, four Yugoslav republics — Slovenia, Croatia, Bosnia-Herzegovina and Macedonia — sought recognition as independent States by the international community.²² On 15 January 1992 the European Community (EC) recognised Slovenia and Croatia both of which fulfilled the requirements of the Declaration on the Guidelines on Recognition ofnew States in Eastern Europe and the Soviet Union issued by the Foreign Ministers of the Community.²³ These two countries were firstly recognised by Germany on 23 December 1991.²⁴ On 6 April 1992, the EC officially recognised Bosnia-Herzegovina. ²⁵ The United States’ recognition followed this on 7 April 1992.At the same time Slovenia and Croatia were also recognised by the United States .²⁶ All three St...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Dedication
• Contents
• Table of Cases
• Table of Treaties
• Acknowledgements
• List of Abbreviations
• Foreword
• Introduction
• Part 1 The Establishment of the Ad Hoc Tribunals (the ICTY and the ICTR) and the International Criminal Court (the ICC)
• Part 2 The Substantive Law (Subject-Matter Jurisdiction) of the Ad Hoc Tribunals: Their Practice and Their Contribution to International Humanitarian Law and Impact on the ICC
• Bibliography
• Index