ICTY Research Articles

Enforcement of international sentences in light of the ICC Decision in Lubanga and Katanga cases

On 19 November 2015, following two specially-crafted agreements with the Democratic Republic of Congo (DRC), the International Criminal Court (ICC) has transferred two of its convicted defendants, Congolese nationals Thomas Lubanga Dylio and Germain Katanga, to serve the remainder of their sentences in a national prison facility in DRC. The transfer represents a precedent in the practice of enforcing the sentences of fully international criminal tribunals – here also counting the ad hoc international tribunals, i.e. the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – as for the first time the state of origin of the perpetrator has been effectively decided as the enforcement state. The decision paves the way for discussion over its potential impact on the future of the established system for enforcement of international sentences, as well as its significance, particularly in the light of the challenges the enforcement system has encountered through the enforcement practice of the ICTY.

“I Would Do the Same Again”

After more than 20 years in operation, the International Criminal Tribunal for the former Yugoslavia (ICTY) has closed down at the end of 2017. Biljana Plavšić made history by becoming the only woman, of 161 individuals, indicted by the ICTY. She was also the highest ranking official and the first Serb leader to plead guilty to charges raised against her before the ICTY. After entering into a plea agreement and serving two thirds of her 11-year sentence in Sweden, she returned to Belgrade in 2009 where she has been living ever since. In this article, I draw on interviews I undertook with Plavšić in the course of 2017. In the first part of the article, I briefly introduce Plavšić and situate the study within the field of international criminal justice and transitional justice. I then proceed to discuss four themes that Plavšić most frequently returned to during our conversations. These themes offer an original perspective into Plavšić’s experience of being tried and sentenced by the international tribunal and her subsequent release and return home. This article aims to fill a gap in the literature by analyzing the reflections on the ICTY from its only woman defendant.

TRIAL WITHOUT UNDUE DELAY: A PROMISE UNFULFILLED IN INTERNATIONAL CRIMINAL COURTS

The right a trial without undue delay is guaranteed using identical language in the Rome Statute of the International Criminal Court (ICC), the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). All three mirror the guarantee in the International Convention for Civil and Political Rights that all persons charged with crimes are entitled to be tried without undue delay. This paper will examine the reason for a right a trial without undue delay and its origin in national and international law. It also will show how these national guarantees serve as the basis of the international law guarantee of trial without undue delay and how that guarantee has played out in the international courts. Finally, this paper will examine reasons why the right of trial without undue delay arguably has been ignored and/or violated in the ICTY, the ICTR and the ICC due long delays in completing the cases.

“I Would Prefer to Be Famous”

The reentry of sentenced perpetrators of atrocity crimes is part and parcel of the pursuit of international and transitional justice. As men and women sentenced for war crimes, crimes against humanity and genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the other tribunals return from prisons into society and communities questions arise as to the impact their reentry has on deeply divided postconflict societies, in particular on victim groups. Contemporary international tribunals and courts mostly do not have penal or correctional policies of their own, and the legacy of early release, commuting of sentences and amnesties that Nuremberg and other post-World War II tribunals have left, is a particularly problematic one. Germany’s historical experience provides an analytic blueprint for understanding in which ways contemporary perpetrators return into changed and still fragile societies. This comparative analysis between Nuremberg and the ICTY is based on two data sets including information on returning war criminals sentenced in both tribunals. The comparative analysis focuses on four themes: politics of reentry, admission of guilt and justification, memoirs, and political activism.

“Too Young to Remember Determined Not to Forget”

This article examines memory activism among the young generation of activists in Serbia, born during or toward the end of the wars of the 1990s. By analyzing the actions of members of the Youth Initiative for Human Rights (YIHR), a Belgrade-based nongovernmental organization, as memory activism, this article aims to deepen the analysis of and discussions about current mnemonic processes in Serbia and to point at a dynamic space of action and engaged citizenship. I discuss the actions and positions of those young activists as related to the contested memories of the wars of the breakup of Yugoslavia and to the legacies of the 1990s. More specifically, I analyze their responses to, and interactions with, the International Criminal Tribunal for the former Yugoslavia (ICTY) convicts who returned to Serbia and reclaimed their engagement in public life. The text is based on data collected in several stages of field research since 2010 that included observations of and in-depth interviews with YIHR activists in Serbia. It addresses the following main questions: What constitutes memory activism in Serbia? What new tactics do the young generation of memory activists employ and how innovative are their practices when engaging with the public on issues related to challenging silence and denial in their society? How do they articulate their claims and demands as related to the issue of returning ICTY convicts, and especially of those who are now public figures in Serbia? I conclude that at the heart of memory activism as examined in the case of Serbia stands a regional and even transnational network of mnemonic practices, revolving around similar mnemonic battles, taking place in some of the other successor states of the former Yugoslavia as well. As such, further analysis of memory activism in the postwar post-Yugoslav sphere will require additional empirical and analytical research of this region as a region of memory.

ICTY Celebrities

Almost 25 years ago, the United Nations (UN) Security Council passed the Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the first ad hoc international criminal court set up by the UN since the post–World War II Nuremberg and Tokyo tribunals. The Tribunal was created to prosecute persons responsible for war crimes, crimes against humanity, and genocide committed at the territory of the Former Yugoslavia since 1991. Over its life span, the Tribunal indicted 161 individuals for their involvement in atrocities committed during the wars of Yugoslav secession. It held trials against 113 individuals over the course of 10.500 trial days hearing testimonies over 4,600 witnesses. Ninety defendants were convicted, 19 acquitted, 2 are currently being retried at the Mechanism for the International Criminal Tribunals, and 2 died before they could hear their final judgment. All this judicial activity indisputably left behind a significant judicial and forensic legacy. The ICTY contributed to the revival and consolidation of international criminal law and its doctrine and gathered a large repository of documents and testimonies about the past.

Does Remorse Count? ICTY Convicts’ Reflections on Their Crimes in Early Release Decisions

Based on all publicly available International Criminal Tribunal for the Former Yugoslavia (ICTY) early release decisions as of May 31, 2017, this explorative article empirically analyzes, systematizes, and evaluates how ICTY convicts reflected on their past crimes during early release proceedings and how this affected decision-making of the ICTY President regarding their level of rehabilitation and early release. For this purpose, we developed an analytical framework distinguishing between acknowledgement of responsibility and remorse, as two forms of reflection on the past crimes, and their general and personal dimensions. Our analysis demonstrates that of all 53 individuals early released at the ICTY, 36% were considered sufficiently rehabilitated and a part of their sentence pardoned without any information regarding their outlook on the crimes they had been convicted of. Only 19% of the early released prisoners acknowledged their personal responsibility and expressed remorse for the crimes they committed. Others denied, only partially accepted responsibility and/or showed remorse on a general level, which, however, did not bar their early release. The article argues that this haphazard practice brings into question the ICTY legacy with respect to its goal of offender rehabilitation and its potential effects on reconciliation in the Former Yugoslavia.

The ICTY Library

The purpose of this contribution is to shed light on the literary output of persons indicted or sentenced for war crimes in the International Criminal Tribunal for the former Yugoslavia (ICTY). Over one hundred books—autobiographies, studies, collections of documents, and even novels and poetry have been generated by no less than 22 persons in the detention unit of the ICTY in The Hague since 1993. Although some of these works did cause an occasional stir, as of yet there is no detailed overview of the entirety of this literary output. In order to fill this gap, this article assembles a full collection of works produced by ICTY inmates and analyzes this genre, the motivations of its authors, and the implications of their work. Examined as sources, these works can be used to study the collapse of the former Yugoslavia, the work of the ICTY, and its perception by the accused. I conclude by examining the corrosive role these works play in the process of coming to terms with the troubled past of the region.

Individuals Accused of International Crimes as Delegitimized Agents of Truth

The workings of international criminal trials situate themselves in an era where the concept of truth is heralded as a key aspect in the production of understandings of the past within transitional justice (TJ) settings. Yet, in such contexts where representations of the past are multilayered, trials tend to put to the fore certain narratives as legitimate readings, while excluding many others. This article explores the discourses of 18 individuals accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY). It focuses on their role as generally delegitimized agents of truth and analyzes how they reconstruct their justice experience, focusing particularly on how they make sense of the judicial truths stemming from their case. It reveals how they reconstruct the ICTY as a hegemonic arena which produces judicial truths, which cannot be considered as legitimate and complete accounts of the past and which are at odds with their authoritative perspective of the “truth.” These findings are analyzed against the backdrop of increasing scholarly debates about the legitimacy, which can be attributed to perpetrators’ perspectives given the tendency, within TJ discourses and practices, to position international criminal justice as a universal and authoritative arbitrator of morality in conflict.

The Media Negotiations of War Criminals and Their Memoirs

The literature on transitional justice in former Yugoslavia holds that the International Criminal Tribunal for the former Yugoslavia (ICTY) proceedings, meant to establish the facts about the past, punish the perpetrators of mass violence, and even facilitate reconciliation, have led to the unexpected transformation of convicted war criminals into heroes in their home countries. Drawing on cultural criminology, the article looks at the phenomenon of “criminal celebrity,” which emerges at the juncture between public personality, intensive media attention, and high audience resonance. Considering that this transformation largely depends on the ability of different actors, including the convicts themselves, to create socially acceptable public personalities by reframing crimes, and their contexts and perpetrators, this article looks at the attempts to create such alternative accounts in the memoirs of the convicts, and in the media. This article argues that the mediation of war criminals in the ICTY facilitated a new type of criminal celebrity—the “ICTY celebrity,” who emerges from his/her relation to an allegedly unjust legal authority, rather than to the crimes. The ICTY celebrity is not a hero, known for heroic deeds or achievements—instead, his main function is to represent a flattering and consoling narrative about the past, enabling wide identification within the ethnic community.

Homecomings From “The Hague”

Based on the analysis of media reporting on the release and return of the International Criminal Tribunal for the former Yugoslavia (ICTY) defendants after the end of their trials or imprisonment, this article focuses on the homecoming celebrations organized for politically prominent defendants. While large celebratory homecomings were vastly covered and discussed by local media, most of the defendants actually returned with no public welcome. This article demonstrates that the homecomings of politically significant returnees became part of a normalized political folklore, in which the convicted individuals are welcomed in the same manner as those acquitted. Nevertheless, this article suggests that these events are not necessarily (or not only) an expression of popular support to wartime “heroes.” Instead, it argues that political actors seek to utilize the occasions of the return of those ICTY defendants who possess symbolic capital as wartime political or military leaders in order to gain political profit. As these homecomings have become an expected political and media spectacle, they are treated by media professionals as such. The local media coverage of the homecoming spectacles reveals that while they are politically potent events, they are also contested: on the one hand by the proponents of competing ethnonational historical narratives and on the other by more critical media outlets that refuse to take them at face value.

GENDER: INTEGRATING CRIMES AGAINST WOMEN INTO INTERNATIONAL CRIMINAL LAW

The author identifies the major goals and achievements in the area of recognizing women as full subjects of human rights and eliminating impunity for gender crimes, highlighting the role of non-governmental organizations ("NGO's"). Until the 1990s sexual violence in war was largely invisible, a point illustrated by examples of the "comfort women" in Japan during the 1930s and 1940s and the initial failure to prosecute rape and sexual violence in the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. Due in a significant measure to the interventions by NGOs, the ad hoc international criminal tribunals have brought gender into mainstream international jurisprudence. For example, the Yugoslavia tribunal has devoted substantial resources to the prosecution of rape and explicitly recognized rape as torture, while the Rwanda tribunal has recognized rape as an act of genocide. Elsewhere, the Statute of the International Criminal Court is a landmark in codifying not only crimes of sexual and gender violence as part of the ICC's jurisdiction, but also in establishing procedures to ensure that these crimes and their victims are properly treated. Working towards this end the Women's Caucus for Gender Justice met with significant opposition. It persisted because of the imperative that sexual violence be seen as part of already recognized forms of violence, such as torture and genocide.

Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

PUBLIC OPINION IN SERBIA ON ICTY: A CHICKEN OR AN EGG?

The paper presents seven consecutive public opinion polls in Serbia (in the period 2000–2011) on the International Criminal Tribunal for the former Yugoslavia (ICTY) and its “partiality“ towards Serbs. The author connected changes in attitudes of citizens during the observed years with the public statements of the “national leaders“ about the Tribunal, as well as with the presentation of the facts of Serbian war crimes in Serbian media. Even though the observed correlation could not be interpreted in the terms of causal relation, the author pointed out to the importance of creators of the public opinion, and offered a possibility that the leading politicians and media in Serbia were not reactive to the attitudes of citizens (as they claimed) but vice versa – they created the public opinion of citizens by their statements or by presentation of the facts about Serbian war crimes.

Building Victim-Led Coalitions to Press for Justice Following Mass Atrocity

Assurances of victim participation in proceedings before the International Criminal Court and Extraordinary Chambers in the Courts of Cambodia have been seen as a welcome corrective to the flawed model of earlier tribunals. The first such tribunal created since the postwar period, the International Criminal Tribunal for the former Yugoslavia (ICTY), was established by the UN Security Council in May 1993 without even consulting those who survived the atrocities that gave rise to its creation, the majority of which took place in Bosnia-Herzegovina. Nor were victims formally incorporated into the ICTY's work except for those who provided testimony and other evidence. (The same holds true for the International Criminal Tribunal for Rwanda, established by the UN Security Council in 1994; in the interests of brevity, my remarks will focus on the ICTY.)

JOURNALISTIC FREEDOM OF EXPRESSION AND CONTEMPT PROCEEDINGS AT THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

The International Criminal Tribunal for the former Yugoslavia (ICTY) has addressed the limits to journalistic freedom of expression more frequently and in more detail than other tribunals that resemble it. In its Rules of Procedure and Evidence a broadly common law concept of contempt of the Tribunal was adopted. The jurisprudence of the ICTY establishes that a violation of a court order as such constitutes an interference with its administration of justice and that it is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. The Tribunal has also held that the disclosure of confidential evidence by another third party does not mean either that this information is no longer protected or that the relevant court order has been de facto lifted or that its violation will not interfere with the Tribunal’s administration of justice. In deciding whether a restriction of the right of a journalist to freedom of expression was justified, the Appeals Chamber considered whether it was provided by law and whether it was proportionate and necessary for the protection of public order. The jurisprudence of the ICTY in this area is relevant to the practice of other international and internationalized criminal courts because of the similarity of their rules and the comparable impediments to the enforcement of their orders.

Commentary on the Judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) of 29 November 2017 (Case No. IT-04-74-T)

Commentary on the Judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) of 29 November 2017 (Case No. IT-04-74-T)

Denying the Unknown. Everyday Narratives about Croatian Involvement in the 1992-1995 Bosnian Conflict

Abstract This article, based on the results of focus-group discussions, dyads, and interviews in Croatia, examines how Croatians construct their narrative of the 1992-1995 conflict in Bosnia-Herzegovina and Croatia’s role in it. Despite judgements at the International Criminal Tribunal for the former Yugoslavia (ICTY) concluding that the Croatian state intervened in the Bosnian conflict, respondents in this study claimed to be ignorant of any such intervention. What was discussed worked in concert with the dominant Croatian war narrative of Croatian defence, victimhood, and sacrifice in the face of a larger, Serbian aggressor. By portraying the Bosnian conflict as chaotic and savage, respondents differentiated it from the Croatian one and relativised any illicit actions within a framework of nesting orientalism. Croatian involvement in Bosnia-Herzegovina was generally seen as positive: it was viewed in terms of Croatia welcoming Bosniak refugees and providing military assistance, which enabled moral licensing with regard to the rarely mentioned and marginalised negative aspects of Croatia’s involvement in the conflict.

Ознаки злочинів проти людяності за статутом Міжнародного кримінального трибуналу по колишній Югославії

Ознаки злочинів проти людяності за статутом Міжнародного кримінального трибуналу по колишній Югославії

Protecting Civilians in Populated Areas During the Conduct of Hostilities after the Gotovina Case

In April 2011, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted Ante Gotovina, the operational commander of ‘Operation Storm’ in the southern portion of the Krajina region of Croatia, of joint criminal enterprise, the common purpose of which was to permanently remove the ethnic Serb civilian population from the Krajina. For his crimes, which included ordering unlawful artillery attacks on Knin, Benkovac, and Obrovac, he was sentenced to a single term of twenty-four years in prison. In November 2012, however, in what is perhaps the most notorious reversal in the ICTY’s history, the Appeals Chamber, by a three to two majority, acquitted Gotovina of all charges and released him. In an amicus curiae by international humanitarian law (IHL) and military experts filed following the 2011 trial judgment, the Amici stated their belief that the Gotovina judgment ‘has the potential to become the “Tadic of targeting law”.’ While the lacunae of the Appeals Chamber judgment mean that this potential is unfulfilled, its findings merit discussion in detail as they highlight in stark terms the weaknesses of IHL rules governing the conduct of hostilities. Accordingly, we argue that protecting civilians demands stricter rules than IHL currently offers, particularly in armed conflicts of a non- international character (NIACs) where those participating directly in hostilities are often located close to—if indeed they are not intermingled with—civilians protected as such. Implementation of and respect for existing rules would obviously bring significant relief, but in high-intensity NIACs Gotovina lays bare IHL’s inadequacies. The rules governing indiscriminate attacks are far more desirable in military terms than they are for the protection of civilians. In this respect, human rights law and law enforcement rules and standards on use of force would offer far greater protection.