The International Criminal Tribunal for the former Yugoslavia:
The conflict in the former Yugoslavia, that took place between 1991 and 1999, shocked the international community because of the unspeakable crimes perpetrated by the different parties to the conflict (including number of massacres, forced displacement of populations, existence of concentration camps …) which were reported by the global press. The conflict is generally considered as an accumulation of separate conflicts, motivated by ethnical hatred and nationalism: the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995), and the war in Kosovo (1998-1999). During the war in Kosovo, the NATO Coalition bombardment took place in 1999.
These conflicts were interlinked with the fragmentation of Yugoslavia. The countries that previously formed Yugoslavia gradually declared their independence. In general, these wars came to an end through peace treaties.
In order to reestablish international peace and security in the region, the Security Council (UNSC) decided to create the International Criminal Tribunal for the former Yugoslavia (ICTY). The UNSC acted under Chapter VII of the UN Charter and issued the Resolution 827 on 25 May 1993. It was decided by the UNSC that the numerous allegations of mass murders, systematic detentions, rapes, ethnical cleansings, displacement of populations and other serious violations of humanitarian and human rights law constituted a threat to international peace and security and therefore justified an action by the UNSC. The Tribunal was created when the conflict was still ongoing. The UNSC has expressed its hope that the ICTY would help to put an end the violence occurring in the region. The Tribunal was based in The Hague in the Netherlands.
The Tribunal was competent to judge persons presumably responsible for serious violations of international humanitarian law (IHL) – grave breaches of the Geneva Conventions, other violations of the laws and customs of war, genocides and crimes against humanity – committed on the territory of the former Yugoslavia since 1991. Since its establishment, the ICTY has indicted more than 160 individuals, including heads of state and members of the government.
The mandate of the Tribunal was supposed to expire on 31 December 2009, but the UNSC unanimously decided to extend the mandate of several judges, including the permanent judges, so that the ongoing trials could come to an end. On 22 December 2010, the UNSC adopted a Resolution 1966, establishing the International Residual Mechanism for Criminal Tribunals (IRMCT). The IRMCT came into existence on 1 July 2013. The Mechanism guarantees that cases which were not finished before the ICTY continue to be judged by the Mechanism and hence the closure of the Tribunal does not result in impunity, for example in case of the fugitives. It also conducted all appeals lodged before 1 July 2013.
The Tribunal ceased its activities in December 2017, prepared and transferred its cases to the Mechanism. The Mechanism is a provisional body which helps to ensure that the cases started by the ICTY do not result in impunity, for example in case of fugitives. It also handles cases of Karadzic, Mladic and Hadzic as a court of first instance and deals with appeals lodged after 1 July 2013.
The ICTY was not the only competent body with jurisdiction over the crimes committed in the former Yugoslavia. The Tribunal exercised its jurisdiction concurrently with national jurisdictions. Nevertheless, it had primacy and could take over the cases of domestic courts at any time of the proceedings (Art 9 of the ICTY Statute). The Statute does not explain in detail how the procedure concerning this takeover was supposed to be exercised, but the primacy had been reaffirmed by the judges in the Rules of Procedure and Evidence. It was applied when an international crime was prosecuted by a national court as an ordinary crime, when the national court was not credible, or if the case was closely tied to another case ongoing before the ICTY.
National jurisdictions are also competent to deal with crimes committed in former Yugoslavia.
Trials of persons accused of war crimes have been opened by the tribunals of Bosnia and Herzegovina. A special section for war crimes has been opened by the Criminal and Appeal Division of the Court of Bosnia and Herzegovina. The War Crimes Chamber in Bosnia and Herzegovina is competent to prosecute the most serious war crimes. It has been created to allow the ICTY to concentrate on high-ranked perpetrators. Its establishment has been considered as necessary for the efficient prosecution of war crimes committed in Bosnia. The inauguration of this Special Chamber took place on 9 March 2005.
Moreover, pursuant to the Resolution 1244 of the UNSC of 10 June 1999, a UN administration was created in Kosovo. Consequently, panels “Regulation 64” have been established in the courts of Kosovo in 2000. These are hybrid courts embedded in local judiciary, having two international judges and one national judge on the bench. These panels work in collaboration with the ICTY and the Mechanism. They have jurisdiction over individuals presumed responsible for genocide, war crimes, and crimes against humanity. Their task is to focus on perpetrators of a less hierarchical importance.
In Serbia, the Office of the Prosecutor for war crimes has been established on 1 July 2003. It has been created in order to find and prosecute authors of crimes against humanity and war crimes, as well as for other crimes recognized in the ICTY Statute. Its jurisdiction does not depend on nationality, citizenship, race or the religion of neither of the authors nor of the victims, as long as the acts have been committed on the territory of the former Yugoslavia after 1 January 1991. Its headquarters is in Belgrade, Serbia.
Other national courts are also competent by virtue of the principle of universal jurisdiction, which allows states that have a specific legal provisions in their domestic laws to prosecute the authors of the most serious crimes (core crimes) regardless of their nationality, nationality of the victims, or the place where the crimes were committed.