The International Tribunal for the Former Yugoslavia: lessons learned
by Horst Fischer, Professor of International Humanitarian Law, Ruhr-University, Bochum, Germany May 1998

The collective security system of the UN is not simply a technical procedure, which can be used to punish those who violate international law. To be effective, member States need to implement Security Council resolutions. Hence, from the outset, the ITFY has been dependent on the cooperation of States, including the parties to the conflict. As such, the legal framework of the ITFY has been embedded in a fluid political, military and diplomatic environment.

World opinion was alerted by reports about atrocities, from journalists and humanitarian organisations in 1992, and subsequently by different fact finding commissions, such as the Kalshoven Commission. The constant affirmation of the major political powers in Security Council resolutions to punish all those responsible for serious violations of international humanitarian law in Yugoslavia gave the ITFY a prototype image of a judicial body able to deal with war crimes, genocide and crimes against humanity after the Cold War. In this respect it filled the gap left by the lack of political will to prevent the atrocities and quickly halt the war. Punishment as substitute for prevention has been one political response to the public pressure to react to the obvious genocide.

The statute of the ITFY gives the necessary legal basis to deal with war crimes trials according to global standards established for criminal proceedings. It takes into account the lessons from the Nuremberg and Tokyo judgments as well as from national criminal proceedings against soldiers for deliberately killing non-combatants in war situations. The definition of the scope of the ITFY’s jurisdiction, and its limitation to the territory of the Former Yugoslavia and to atrocities committed since 1991 soon ended the debate about the competence of the Security Council to establish such tribunal. Despite the formulation of the statute’s rules after most of the atrocities had already been committed, the international community were reassured by the initial Thetic case that fair judicial principles were being followed.

Recent cases such as the Erdemovic case, demonstrated the ability of the trials and appeal chamber to interpret the statute in the light of actual cases. The inherent law-creating competence of the ITFY to establish and adapt its rules of procedure, though quite unusual for some national law systems, proved its usefulness where the specific situation of the conflict and its aftermath made new rules necessary, such as for the protection of witnesses.

Most damaging to the image of the ITFY has been the lack of cooperation of former parties to the conflict and of other States. The decision of the ITFY to adopt a procedure through which it can issue an international arrest warrant, shows its determination to implement the Security Council resolution under which all violators will be held responsible. The former parties to the conflict have not been too willing to cooperate. Requests of the trial chamber for the arrest or transfer of persons to the Tribunal have not been followed or have been delayed. Despite a sufficient legal basis in different texts, such as the Dayton agreements, the execution of arrest warrants by IFOR and SFOR-troops in Bosnia has also not met the expectations of the ITFY and of the general public. The same holds for the limited response by donors to the growing financial need of the ITFY since 1994.

There has perhaps been an undue concentration on the international tribunals to deal with war crimes. The primacy of the ITFY over national courts, as expressed in the statute, gave the impression that in this matter national courts only have a minor role to play. However in the past five years, the jurisdiction of the national courts to prosecute non-nationals for violations of international humanitarian law, outside their territory and in conflicts to which the court’s own state has not been a party, has been reaffirmed and developed. National courts then have an essential role to play in the prosecution of war criminals.

There are as yet no clear criteria for the evaluation of justice and human rights actions. An evaluation of the workings of the ITFY would require a definition of the functional, political, military and financial restraints that international crime procedures face in the case of non-international conflicts, where the violation of fundamental rules has been used as a tool for political purposes. Such definition did not exist when the ITFY was established, nor does it exist on the eve of the creation of a permanent ICC. Yet, the main lesson of the ITFY is that such a definition is needed to maintain the credibility of international criminal proceedings.

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