Tribunals For Former Yugoslavia Research Articles

Constricted rights and imagined identities: Peace and accountability processes and constitution-making in Bosnia and Herzegovina

Abstract This article takes an interdisciplinary law-in-context approach to examine the nature of constitutionalism in Bosnia and Herzegovina. We argue that while the new constitution was necessary for implementing the postwar democratic transition and rebuilding processes, its fixed ethno-religious collective political identities achieved between 1992 and 1995 by forceful means have further reinforced ethno-territorial divisions in a multicultural society. As a consequence,the individual and state accountability for mass atrocities and genocide before the ad hoc International Criminal Tribunal for Former Yugoslavia and theInternational Court of Justice have become secondary to the postwar power-sharing arrangement, thus perpetuating inter-ethnic tensions. The dominant focus on a social order that reasserts citizenship and constitutional rights based on ethnic identities has created an enduring deadlock for the Bosnian transition. This article reimagines a citizen-based constitution generated by political participation for those in and outside of Bosnia and Herzegovina that safeguards the principles of non-discrimination and equal civil, political, socio-economic, and cultural rights, and encourages citizens’ education and democratic participation to shape the future of democracy.

Rehabilitation of Perpetrators of International Crimes – Myth or Reality? Case Study of the International Criminal Tribunal for Former Yugoslavia

Of the 92 persons convicted at the International Criminal Tribunal for Former Yugoslavia (ICTY), 60 have already served their sentences and were released. Even though perpetrators’ rehabilitation and their public behaviour in post-conflict environments are essential for countering denial, establishing an authoritative version of the truth, and sustainable reconciliation, we still know little about what happens after they return to their communities. This article attempts to examine ICTY convicts’ rehabilitation by assessing the quality and the result of existing rehabilitation programs (e.g., how much the public behaviour of those released matches the expectations of the victim’s community, what their relationship is with their guilt and crimes committed). Aside from secondary sources, it draws on 23 semi-structured interviews with victims of war, representatives from victims’ associations, and human rights advocates from the region. It finds that in the context of the absence of specialized rehabilitation programs and lack of oversight of the post-conviction stage at the ICTY, the convicted perpetrators return to communities that support and enable them. Hailed by specific enthusiastic audiences back home, ICTY convicts often fulfil their expectations, closing a vicious circle that dramatically curbs the individual or collective transformative potential of their punishment regarding reckoning with the past and moving towards reconciliation.

International Criminal Tribunal for former Yugoslavia (ICTY) and grassroots mobilization for justice: Insights from Bosnia and Herzegovina.

International Criminal Tribunal for former Yugoslavia (ICTY) and grassroots mobilization for justice: Insights from Bosnia and Herzegovina.

Rola prokuratora w postępowaniu przygotowawczym przed międzynarodowymi trybunałami karnymi

In the process of creation of international criminal tribunals not only criminal procedure sui generis was designed but also for the first time detailed powers of prosecutor had to be adapted to specificity of their functioning. Procedure of international criminal tribunals creates new foundations to the position of prosecutor. The role that is played by this organ in international justice system depends mainly on the position of the tribunal itself. The creators of international tribunals applied legal instruments from several legal systems choosing solutions that seemed most appropriate for organs of international justice. In the consequence such procedure constitutes an amalgamate of common law institutions and solutions used in continental legal systems. In the negotiations during creation of the International Criminal Court for many years the best solutions were discussed and designed. Several questions regarding the shape of procedure had to be answered. The answers influenced not only the powers of prosecutor but also the role of tribunal. The place of prosecutor as an organ of the tribunal was the first issue of fundamental importance. International military tribunals in Nuremberg and Tokyo did not create prosecutor as an independent organ. Prosecutors acted only in the name of the victorious governments. It was only with creation of ad hoc tribunals – International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda – that prosecutor became an independent organ, equipped with his own powers. At the time being, in the procedure before the International Criminal Court independence of prosecutor is the fundamental element of his status and is protected equally to independence of judges. Secondly, the choice between opportunity and legality of prosecution had to be made. It was agreed that prosecutor should take actions only in the most severe situations regarding most serious violations of international criminal law when specific circumstances indicate that they are in the interest of an international organ of justice. Perpetrators of international crimes are usually too numerous to be brought to justice before an international organ. In such situation it is accepted that prosecutor should initiate criminal proceedings only when he sees the procedure to be in interests of international justice. The issue of initiation of procedure was equally crucial. Each tribunal offers to prosecutor such powers, although in the ICC it was one of the most disputed solutions. In the consequence prosecutor plays an important role in the functioning of international justice. Not only he can initiate procedure proprio motu but also chooses situations and perpetrators that should be brought to justice before international tribunals. The shape of pre-trial stage constitutes an amalgamate of different criminal justice systems – both elements of common law and continental legal systems have been employed in order to create procedure most fitted to the specificity of situations that have to be dealt with by international tribunals. Such institutions as disclosure of charges and documents come from common law. Continental legal systems provided solutions of confirmation of indictment and active role of Pre-Trial Chamber in the pre-trial stage. In the consequence system of checks and balances was created – prosecutor conducts the pre-trial stage but most important decisions have to be confirmed by a judicial organ. This article presents powers of prosecutors of international criminal tribunals during the pre-trial stage of proceedings. It focuses on such institutions as power to initiate of proceedings and its limitations, preliminary examination of a case, authorization of investigation, conditions of such authorization and powers of prosecutor to act on a territory of states. Many procedural issues concerning the role of prosecutor have been explained during the judicial activities of ad hoc tribunals. It can be expected that in the jurisprudence of the ICC problems concerning the role of prosecutor of international tribunal will be further developed.

NE BIS IN IDEM PRINCIPLE IN THE CRIMINAL LEGISLATION OF BOSNIA AND HERZEGOVINA AND COURTS’ JURISPRUDENCE

The paper is dedicated to ne bis in idem principle, which is a fundamental human right safeguarded by Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. This principle is sometimes also referred to as double jeopardy.The principle implies that no one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which s/he has already been finally convicted or acquitted (internal ne bis in idem principle), and that in some other State or before the International Court (ne bis in idem principle in respect of the relations between the states or the State and the International Court) the procedure may not be conducted if the person has already been sentenced or acquitted. The identity of the indictable act (idem), the other component of this principle, is more complex and more difficult to be determined than the first one (ne bis).The objective of this principle is to secure the legal certainty of citizens who must be liberated of uncertainty or fear that they would be tried again for the same criminal offence that has already been decided by a final and binding decision. This principle is specific for the accusative and modern system of criminal procedure but not for the investigative criminal procedure, where the possibility for the bindingly finalised criminal procedure to be repeated on the basis of same evidence and regarding the same criminal issue existed. In its legal nature, a circumstance that the proceedings are pending on the same criminal offence against the same accused, represents a negative procedural presumption and, therefore, an obstacle for the further course of proceedings, i.e. it represents the procedural obstacle which prevents an initiation of new criminal procedure for the same criminal case in which the final and binding condemning or acquitting judgement has been passed (exceptio rei iudicatae).The right not to be liable to be tried or punished again for an offence for which s/he has already been finally convicted or acquitted is provided for, primarily, by the International Documents (Article 14, paragraph 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms). The International framework has also been given to ne bis in idem principle through three Conventions adopted by the Council of Europe and those are the European Convention on Extradition and Additional Protocols thereto, the European Convention on the Transfer of Proceedings in Criminal Matters, and the European Convention on the International Validity of Criminal Judgments.Ne bis in idem principle is traditionally associated with the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Likewise, no derogation from Article 4 of Protocol No. 7 shall be made under Article 15 of the Convention at the time of war or other state of emergency which is threatening the survival of the nation (Article 4, paragraph 3 of Protocol No. 7). Thereby it is categorised as the irrevocable conventional right together with the right to life, prohibition of torture, prohibition of slavery, and the legality principle. Similarly, ne bis in idem principle does not apply in the case of the renewed trials by the International criminal courts where the first trial was conducted in some State, while the principle is applicable in the reversed situation. The International Criminal Tribunal for Former Yugoslavia could have conducted a trial even if a person had already been adjudicated in some State, in the cases provided for by its Statute and in the interest of justice.

Estupro como estratégia de guerra em conflitos armados: a experiência do Tribunal Penal Internacional para a antiga Iugoslávia nos casos de violência de gênero

A violência contra a mulher é uma prática antiga e, com o passar do tempo, os crimes de natureza sexual foram se naturalizando ainda mais em conflitos domésticos e internacionais, em que a situação de vulnerabilidade é sentida de forma ainda mais contundente por mulheres que sofrem agressão sexual. O século XX foi marcado por conflitos como o da antiga Iugoslávia, conhecido como um dos marcos da discussão jurídica sobre a violência contra a mulher como crime internacional. Por meio de uma pesquisa bibliográfica, este artigo propõe estudar como o Tribunal Penal Internacional para a antiga Iugoslávia incorporou os crimes de violência sexual na sua normativa e jurisprudência, considerando a prática desses atos de natureza sexual uma estratégia de guerra, em que o principal objetivo é desmoralizar e destruir uma população em função de elementos étnicos e nacionais. Com a incorporação de gênero na jurisprudência do tribunal, o Tribunal Penal Internacional para a antiga Iugoslávia tipifica os crimes de violência sexual como crime contra humanidade e entende que esse tipo de violação também deveria ser julgado sob o art. 3.º, em condição de Violações das Leis ou Costumes de guerra. A prática desses crimes é muito mais que a simples prática de opressão a um grupo vulnerável por parte do Estado, mas uma imposição do símbolo de poder de gênero.
 
 
 Abstract: Violence against women is an old practice and, over time, crimes of a sexual nature have been further naturalized in domestic and international conflicts, where the situation of vulnerability is felt even more bluntly by women who suffer sexual assault. The twentieth century was marked by conflicts such as that of the former Yugoslavia, known as one of the milestones of the legal discussion on violence against women as an international crime. Through a bibliographical research, the present article proposes to study how the International Criminal Tribunal for the former Yugoslavia incorporated the crimes of sexual violence in its normative and jurisprudence, considering the practice of these acts of a sexual nature a war strategy, in which the The main objective is to demoralize and destroy a population based on ethnic and national elements. With the incorporation of gender in the jurisprudence of the court, the International Criminal Tribunal for the former Yugoslavia typifies crimes of sexual violence as a crime against humanity and understands that this type of violation should also be judged under art. 3, in the condition of Violations of Laws or Customs of war. The practice of these crimes is much more than the simple practice of oppression of a vulnerable group by the state, but an imposition of the symbol of gender power.
 Keywords: Humans rights; Sexual Violence; International Conflicts; International Criminal Tribunal for the Former Yugoslavia.
 
 
 Recebido em: outubro/2018.Aprovado em: abril/2019.

Specific Direction: An Unspecific Threshold

Aiding and abetting has been recognised as a form of individual criminal responsibility since the 1940’s when the first international tribunals were created. The form of responsibility had a relatively simplistic history of application until it faced an unprecedented upheaval through the introduction of the threshold of specific direction in the Perišić appeals judgment. The judgment has since been rejected by the Special Court of Sierra Leone (SCSL) in the Charles Taylor judgment and by the International Criminal Tribunal for Former Yugoslavia (ICTY) in Sainović, Popović and Stanišić and Simatović judgment. The present paper focuses on the relevance of the standard of specific direction before the International Criminal Court (ICC). It argues that the standard is unjustifiable under international criminal law as, firstly, no convictions or acquittals have been affected on the standard and, secondly and more importantly, the text of the Rome Statute has rejected the standard. The standard of specific direction has not legal pedigree under customary law, is contrary to the text of the Rome Statute and counter-intuitive to the objectives of the ICC as it unreasonably increases evidentiary requirements at the Court and consequently makes the fight against impunity, an already challenging task, even more difficult.

Преступления против человечности: генезис и современное понимание концепции

The origin of the concept “Crimes against Humanity” (СaH) — one of most serious crimes of international concern — can be found in 1915 Allied Joint Declaration and Martens Clause. CaH were first defined in Art. 6(c) of the Nuremberg IMT Statute. CaH are included in the jurisdiction of International criminal tribunal for former Yugoslavia, Rwanda Tribunal, Special Court for Sierra Leone, Extraordinary Chambers in the courts of Cambodia, Special Panels for serious crimes in East Timor. The Rome Statute of the International Criminal Court (Art. 7) contains a broad definition of this crime that reflects the international customary law. Evolution of the CaH concept includes both the expansion of specific acts, forming this category, and its essential elements: attacks against civilian population; link with armed conflicts; large scale and regularity of attacks; and, probably, inclusion into the illegitimate policy conducted by states and other actors. In the absence of a uniform definition of CaH in the statutes of courts and the convention, the work of International Law Commission makes a considerable contribution to the modern development and understanding of the concept. The adoption by ILC of the CaH definition, based on the ICC Statute will confirm the generally recognized definition of the CaH concept; and a wide range of states’ obligations on suppression, prevention and cooperation proves, inter alia, the erga omnes nature of the CaH prohibition.

The Establishment, Scope, and the Completion of the Mission of International Criminal Tribunal for the Former Yugoslavia

This paper will treat the establishment, scope, and the completion of the mission of International Criminal Tribunal for formerYugoslavia. It is well known that this Tribunal, respectively The Hague Tribunal, is established with a resolution of United Nations Security Council, for the purpose of establishing peace in the troubled region ofYugoslavia. Since its establishment, the Tribunal has held many judicial processes, by bringing in front of the justice even the heads of states and people with significant state positions.Currently, the tribunal is in the completion phase of its mandate set by the United Nations resolution. For this reason, the tribunal does not accept new cases in order not to extend its completion phase of the mandate.The paper as such, has a practical importance because it will examine the success and challenges that this international court level has faced. Moreover, it will point out also the Completion strategy of this tribunal, where it is presumed that the cases will be transferred to the local justice in order not to overload the court with other cases.

Principle of Legality and Its Relation with Customary Law in International Criminal Law

Article 38 of the Statute of the International Court of Justice(ICJ) is considered to be the provider of a list of reliable sources for international law. Paragraph (1) (b) of the Article introduces customary law as the general practice of States members of the international community recognized as law(opinio juris). Therefore, each argument regarding customary international law as a main formal source, should be in line with the requirements of the mentioned Article. Although, before the Statute became binding, the concepts stated in this Article were already enforceable, the concepts may not have the same meaning in modern international criminal law whose main objective to prosecute and punish individual criminals committing humanitarian and human rights violations. The main objective of the present article is to demonstrate the extent the requirements of the establishment of custom in Article 38, i.e State practice and opinio juris, is applicable to criminal customary law. To do this the statutes of international criminal tribunals for former Yugoslavia(ICTY) and Rwanda(ICTR), human rights documents and the case law of the international criminal tribunals are examined. It seems that Article 38 of the Statute cannot be strictly applied to international customary law in criminal cases particularly when it comes to the application of the principle of legality or nullum crimen, nulla poena sine praevia lege poenali as a defence in criminal prosecutions. DOI: 10.5901/mjss.2015.v6n5p398

Paths of Memory: Srebrenica Genocide Exhibits at the US Holocaust Memorial Museum in Washington, DC

After the horrors of the Holocaust the world said “Never Again”. The promise that echoed for decades was broken during the genocide in Bosnia and Herzegovina (1992–1995) and its culmination on 11 July 1995 in Srebrenica, a UN designated safe area, when Serb forces led by General Ratko Mladić captured the town and killed over 8000 Bosniaks (Bosnian Muslim) men and boys. The International Criminal Tribunal for Former Yugoslavia (ICTY) and the International Court of Justice ruled the massacre in Srebrenica as genocide. In 2005, an exhibit of Bosnian photographer Tarik Samarah's work about the Srebrenica genocide opened at the US Holocaust Memorial Museum in Washington, DC (the Museum). A few years later the Srebrenica genocide was included in the special exhibition “From Memory to Action: Meeting the Challenge of Genocide”. This article examines the installation and importance of both of the Srebrenica genocide exhibits at the Museum. It shows that the inclusion of the Srebrenica genocide at the Museum bears witness to the importance of genocide prevention, education and memorialization. It highlights the purpose of the Museum and the decision to expand its educational program to include post-Holocaust genocide cases. The conclusion emphasizes that the presence of the Srebrenica genocide is directly contributing to the importance of “keeping the memory alive” with regard to the Holocaust and genocide studies in general.

Challenges of Postconflict Coexistence: Narrating Truth and Justice in a Bosnian Town

This article sets out to deepen our understanding of how people make everyday strategies for living together after mass atrocities and what role transitional justice may play for these strategies. Based on a study in the small town of Foča in Bosnia‐Herzegovina, the analysis unpacks the encounter between three clusters of narratives that make competing moral claims and offer different ways of ordering the past, present, and future: the “institutional” narrative formed globally at various institutions of transitional justice and here represented in the local by the International Criminal Tribunal for Former Yugoslavia (ICTY); the collective narratives of ethnonationalism constructed by entrepreneurs in politics and media and fed into daily discourses; and individual narratives “in the margins” that refuse collective categorizations. The article argues that the ICTY narrative, based on individual justice and factual truth, was, contrary to its aims, used to enforce exclusionist and collective claims. At the same time, less dominant narratives embraced the ICTY narrative, which suggests that the tribunal may potentially play a constructive role as an “archive for the future.”

Framing Rape: Patriarchy, Wartime, and the Spectacle of Genocidal Rape

Clearly, epidemic occurrence of genocidal as has happened in numerous war-torn countries and countries embattled by ethnic conflict-requires an urgent thinking-through of issues at stake and context in order to understand what a proper response and resolution should be. Because of richness and density of this text, it is impossible to address all strands that Bergoffen has woven together to defend and illuminate implications of judgment of International Criminal Tribunal for former Yugoslavia (ICTY) in trial of three Bosnian-Serb soldiers, namely that recognizing that genocidal rape is a violation of human rights affirms dignity of vulnerable body. Bergoffen's first few chapters describe situation of women who were raped in contexts of ethnic cleansings of former Yugoslavia and Rwanda. She begins by pointing to trials that were authorized by UN Security Council; she then reflects on judgment of International Criminal Tribunal for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR): namely, that these rapes were against humanity, the second most egregious international criminal offense.As Bergoffen points out: ICTR judgment against one of rapists linked criminality of rape to criminality of genocide, and that rape, like torture, was a criminal genocidal tactic (6). In case of ICTY's trials, ICTR verdict was acknowledged, and link between rape and genocide was also acknowledged. The ICTY ruling went even further in several ways: First, coercive tactics against rape need not include physical violence . . . [and] rape could not be identified as a species of torture (7); second, ICTY convicted Bosnian-Serb soldiers of crimes against humanity; and third, ICTY ruling that rapes and associated such as sexual enslavement and assault violated women's right to sexual thereby constructing the right to sexual integrity (6-7).For Bergoffen, these rulings are path-breaking in that they go above and beyond simple understanding of human rights violations as those of liberal conceptions of human rights, namely of right to autonomy and self-determination. Rather, these rulings transform our understanding of magnitude of depth of injury and violation, by pointing to rape within context of genocide rather than ethnic cleansing. Bergoffen points to depth of implications of classifying rape within former rather than latter category. To locate rape within context of ethnic cleansing closes off possibility that scope of act has an effect on community's future viability; it also precludes acknowledgment that forced relocation has long-standing effects on its viability (20).1Let me address fact that locating of rape within context of genocide changes nature and scope of recognition of violation of rape. To understand rape within context of genocide is to understand, not only elements of coercion, power, and violation, but also of humiliation and dehumanization, as well loss of right to cultural determination, sexual self-determination, viability of one's self-chosen community. Bergoffen quotes Claudia Card's notion of social death as one of intrinsic factors in genocide-in order to illustrate its relevance in resituating impact of rape as a human rights violation. I think it is helpful to bring up Bergoffen's description of Card's notion here: To equate genocide with physical annihilation (qua ethnic cleansing), we miss unique evil of genocide-social death. According to Card, our singular and collective identities are inextricably linked. We are who we are through bonds we forge with each other as members of a common culture. Our shared histories, traditions and languages anchor meanings of our lives. Tactics that destroy these bonds produce social death. …

Synthesis of the common-law accusatorial and the continental mixed criminal procedural justice system: The example of the International Criminal Tribunal for the Former Yugoslavia: Part 2.

In this paper, the author analyses criminal procedural rules created as an expression of the synthesis of the common-law accusatorial and the continental mixed criminal procedural justice system in International Tribunal for Former Yugoslavia (ICTY). The field of analytical treatment in this paper is limited not only to textual material of criminal procedural rules, but the author also attempts to demonstrate the practical achievements and implications of criminal procedural institutes. Furthermore, the reasons of these synthesis are revealed and categorized into those caused by the practical need to make the process faster and more efficient (justified by the right to an expeditious trial), and those originating from the flexible adaptation of procedural rules to the legal habits and type of education of lawyers who are referred to the application of the rules. The aim of the paper is to point out the practical consequences of the criminal procedure roles and to outline their practical achievements, depending on the underlying factors. This goal is of great practical importance, considering that legal theory in this area has no influence on establishing criminal procedural rules, but it is also out of step with the critical analysis of some criminal procedural law institutes that are gradually being transferred from the ICTY to other international or national criminal procedure rules. The selected issue has been fairly neglected in our literature, although actualized in recent amendments to the Code of Criminal Procedure of Serbia. By these changes, the continental type of mixed system of criminal procedure has been replaced by the model inspired by Anglo-American criminal procedural law.

10.5937/pravzap0-4998 = Synthesis of the common-law accusatorial and the continental mixed criminal procedural justice system: The example of the International Criminal Tribunal for the Former Yugoslavia: Part 1.

In this paper, the author analyses criminal procedural rules created as an expression of the synthesis of the common-law accusatorial and the continental mixed criminal procedural justice system in International Tribunal for Former Yugoslavia (ICTY). The field of analytical treatment in this paper is limited not only to textual material of criminal procedural rules, but the author also attempts to demonstrate the practical achievements and implications of criminal procedural institutes. In Part 1 (published in this issue) the author deals with the general concept of the ICTY procedural law. More specifically, the research will focus on sources of procedural law and it follows the different pre-trial procedural stages. Furthermore, the reasons of these synthesis are revealed and categorized into those caused by the practical need - to make the process faster and more efficient (justified by the right to an expeditious trial), and those originating from the flexible adaptation of procedural rules to the legal habits and type of education of lawyers who are referred to the application of the rules. The aim of the paper is to point out the practical consequences of the criminal procedure roles and to outline their practical achievements, depending on the underlying factors. This goal is of great practical importance, considering that legal theory in this area has no influence on establishing criminal procedural rules, but it is also out of step with the critical analysis of some criminal procedural law institutes that are gradually being transferred from the ICTY to other international or national criminal procedure rules. The selected issue has been fairly neglected in our literature, although actualized in recent amendments to the Code of Criminal Procedure of Serbia. By these changes, the continental type of mixed system of criminal procedure has been replaced by the model inspired by Anglo-American criminal procedural law.

Judicial proceedings and reconciliation: Croatian and Serbian claims for the genocide before the International Court of Justice

Justice is one of the main components of the process of reconciliation. When materialized in its institutionalized form, justice is achieved through trials, whether to individuals or states. In the case of war in former Yugoslavia apart from the trials to the individuals before International Tribunal for former Yugoslavia, equally important and current issue is the case before International Court of Justice regarding the claim and counter-claim of Croatia and Serbia concerning the crime of genocide. Through the analysis of this judicial proceeding using the concept of change in the conflictive ethos it is shown that it does not per se contribute to the reconciliation. Reasons for that are to be found in the very nature of the judicial proceedings and discrepancies between legal and social norms and understandings of justice. Nevertheless the importance of judicial proceedings is not denied as a structural measure in the reconciliation process therefore suggestions for the overcoming of deficiencies in the contribution of these proceedings to the reconciliation are offered.

The Role of The Court of Justice of the European Union in Fragmentation of International Public Law

The significance of judicial and arbitral bodies lies in the binding nature of their decisions, that directly influence the behavior of states. Therefore, the most obvious problem immediately associated with proliferation of international judicial bodies was a risk of inconsistent judgments that would impose conflicting obligations on states. Inconsistent judgments, in their turn, result from overlapping jurisdictions, when a few forums have jurisdiction to decide over the same or similar type of disputes. Naturally, the risk of jurisdictional overlaps grows together with the number of courts dealing with similar types of disputes. For instance, the ICJ and a relatively recently established International Criminal Tribunal for Former Yugoslavia have been deciding on the same point of law (which amounts to jurisdictional overlap) at arrived at divergent interpretations.Because of the increase in the risk of inconsistent judgments with the emergence of new courts, the question of proliferation of international judicial and arbitral bodies was included in the study on fragmentation of international law, conducted by a special Study Group within International Law Commission. Fragmentation was defined as a multidimensional phenomenon, with the difficulties ensuing from multiplication of international courts constituting its institutional aspects.Compulsory jurisdiction over particular type of disputes envisaged in constitutive instruments of certain courts makes jurisdictional overlaps even more complicated and harder to deal with. Among those, the position of the Court of Justice of the European Union is the most interesting, because the scope of its exclusive jurisdiction over interstate disputes was rather recently addressed by the Court in its case-law. Although the possibility of infringement actions for failure to fulfill obligation under EU law between EU Member States (MSs) [currently] envisaged in Art.259 of the Treaty on the Functioning of the European Union (TFEU) has been used for just few times during the last couple of decades, should such a dispute arise, compulsory jurisdiction of the ECJ applies.The scope of the ECJ’s compulsory jurisdiction ratione materiae in inter-MSs disputes was clarified in infringement proceeding against Ireland, whereby the Court extended its jurisdiction to public law disputes that involve a point of EU law. The judgment may re-shape jurisdictional relations between the ECJ and other international courts and tribunals and imposes certain constraints on EU MSs with regard to the choice of forums for their public law disputes. Eventually, these “institutional problems” of fragmentation connected with proliferation of international courts were left outside the scope of the Study Group’s findings, although it acknowledged their existence. As an illustration, the MOX plant dispute between Ireland and the UK is mentioned. The same set of facts gave rise to proceedings launched before different international fora, and ended up with the above mentioned infringement proceedings at the ECJ. Importantly, the dispute did not result in divergent judgments, but raised different issues, inter alia, about jurisdictional relations between different courts. It may be deduced that the Study Group opined that the jurisdictional position of the ECJ is important from the viewpoint of fragmentation of international public law. The Report does not explain, however, why and from what perspective that particular dispute and the role of the ECJ in it are relevant for the fragmentation debate.These questions will be considered in order to reach the purpose of the present thesis – to answer how does the ECJ compulsory jurisdiction over inter-MSs disputes contribute into fragmentation of international public law and how should the conflicts of jurisdictions involving the ECJ be dealt with in order to not obstruct the settlement of public law disputes between EU MSs.

The protection of the accused in international criminal law according to the human rights law standard1

The presented paper discusses the influence of international human rights law on international criminal law. It tries to give an answer to the question of whether rules protecting the accused in international criminal proceedings meet the human rights law standard provided by international declarations and covenants. Meaning, if the proceedings before the International Criminal Tribunal for Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and International Criminal Court (ICC) meet the standard provided by international human rights law, in particular the International Covenant on Civil and Political Rights. The paper proves that international human rights law has affected international criminal law tremendously. Moreover, it is argued that the protection of the accused in the law of the international courts and tribunals with regard to his rights has improved when compared to the international human rights law standard. In particular the Rome Statute of the ICC provides the accused with the most comprehensive protection. This is especially visible in the case of such rights as the presumption of innocence, right to an interpreter and right to remain silent. Nevertheless, some shortcomings in the law of the ad hoc tribunals and ICC can be observed, in particular when it comes to identifying the commencement of protection of the accused.

International Criminal Tribunal for former Yugoslavia (ICTY) as a reflection of its time

War crime tribunals are a 20th century phenomenon correlated with the process of the ascendency of the U.S. into a superpower. Oftentimes, these are partial to the victors, who select the judges and define the truth, as well as legal and moral norms. It has been attested throughout American history, that tribunals not only try cases but become instruments of warfare. The ICTY is no exception in terms of this practice. In spite of incontrovertible accomplishments in the sphere of war crime prosecution, this court is also a politically-engaged institution.

The ICTY's Impact on Serbia: Judicial Romanticism meets Network Politics

It has been widely argued that international criminal justice is necessary for peace and security and that it promotes reconciliation. There have been few attempts to examine these claims with empirical evidence. This article examines the impact of the International Criminal Tribunal for former Yugoslavia on political thinking and behavior in Serbia. It finds that the ICTY has had thus far little direct impact on Serb leaders and political parties, the rule of law, or civic society. What impact the court has had has been indirect, the product of a network of other actors like the United States and the European Union. These network members make reference to the ICTY as they try to manage Balkan politics. This article shows that while internationalized criminal courts may punish certain individuals and develop legal norms and procedures, "judicial shock therapy" is more difficult to achieve. The ICTY has not yet pushed Serbia in a more liberal political direction, which is a foundation for progressive change in the Balkans.