UN International Criminal Tribunal Research Articles

Prosecutor v. Mladić (U.N. Int'l Residual Mechanism Crim. Tribunals App. Chamber)

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić's final appeal, opening the door for his assignment to a prison somewhere in Europe.

Gordy, Eric Guilt, Responsibility, and Denial: The Past at Stake in Post-Milošević Serbia (review)

SEER, 94, 1, JANUARY 2016 190 order to explain medium-term international relations. The geographical scope of his research is also impressive. Given that the Soviet Union had relatively limited contact with the ‘Third World’ during the early years of national liberation covered by Reconstructing the Cold War, it will be interesting to see how Hopf employs social constructivism to account for changes in this relationship amid the massive transformations in developing countries from the 1950s through to 1991 — a period he plans to cover in two subsequent volumes. Although it often seems excessively intent on deconstructing familiar aspects of Soviet history and foreign policy in the overwhelming interest of testing a model, this first instalment is certainly an ambitious undertaking. Department of History Christine Varga-Harris Illinois State University Gordy, Eric. Guilt, Responsibility, and Denial: The Past at Stake in PostMilo šević Serbia. Pennsylvania Studies in Human Rights. University of Pennsylvania Press, Philadelphia, PA, 2013. xv + 256 pp. Tables. Notes. Bibliography. Index. $65.00: £42.50. Eric Gordy’s The Culture of Power in Serbia, published in 1999, was a brilliant examination of Serbian politics and society and how Slobodan Milošević, Serbian leader (under various titles) and architect of war during the 1990s ruled the country, both harnessing political culture and shaping it. This was a book of real importance — for the first time, through Gordy’s insight, how Milošević atomized the country, playing on tropes, pulling up one political figure, pushing another down was revealed. It provided a big clue to that which needed to be done for those seeking to remove this troublesome figure. In October 2000, he was ousted — and later arrested and imprisoned, and eventually transferred to the UN International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague to face charges of crimes against humanity, war crimes and genocide. It is therefore with real anticipation that Gordy’s new book, tackling the social and cultural context of politics in Serbia since Milošević’s exit, might be approached. Guilt, Responsibility and Denial is very largely a success, proving that Gordy has a fine understanding of Serbian society and culture. However, the book has some weaknesses that might, for example, give it a rough ride in a PhD examination. The treatment of the ICTY and international law contains many mistakes, such as the assertion that, when the ex-leader-cum-war-crimessuspect was arrested in Serbia in 2001, the ICTY indictment against him rested on one incident — an alleged massacre at Račak in Kosovo. Setting aside that his arrest in Serbia was not (formally, at least) in relation to the ICTY indictment, which is only made clear in chapter three, the indictment REVIEWS 191 included the Račak incident in January 1999, but also a string of others across Kosovo, particularly after 24 March and through to the date of the original indictment (22 May 1999 — that indictment was revised to include later dates on 29 June 1999, already two months after Milošević’s arrest). Simply checking the document would have confirmed this. Ironically, given Gordy’s excellent work on Milošević’s elusive and wily rule, always untouchable — a gangster boss who left no finger prints — the key issue in the indictment was superior authority. On 24 March 1999, Belgrade declared a state of war, which, for the first time in a decade of troublemaking, put him de jure, formally, in a position of superior authority, in terms of international criminal law. This was the first time that clear grounds existed to indict him. That was why the indictment was made at that point. Milošević, having ruled and manipulated Serbia in the way Gordy revealed had, until that point, made his first serious error. In addition to these kinds of mistake, Gordy also makes no mention of several sources, or authors, which one might expect to him to have consulted, including the prolific Sabrina Ramet’s dozen-or-so works in and on the period. Attention to these weaknesses should not distort appreciation of Guilt, Responsibility and Denial and the richness of Gordy’s material and analysis when it comes to assessing Serbia itself. This is a fine...

The UN international criminal tribunals: transition without justice?

Foreword: The starting points: The Nuremberg and the Tokyo Tribunal 1. The Creation of the Tribunals 2. How the Tribunals Work 3. Efficiency: The ICTs and Their Tasks 4. Tribunals as Actors of Domestic Change 5. The Legacy of the ICTY and the ICTR

ICTUR in Action: Trial observers

ICTUR IN ACTION ❐ TRIAL OBSERVERS In the morning of 23 January 2014, dozens of KESK supporters and family members gathered in front of the Justice Palace premises to demonstrate their solidarity with the accused. Though the demonstration was pacific, a group of about 50 special police officers was ready to intervene. Shortly before the start of the hearings, some supporters of the accused – not related to the KESK – attempted to approach the Justice Palace premises. The police forces employed teargases to disperse them. Access to the courtroom was somehow chaotic . Dozens of family members, friends and supporters hoped to attend the proceedings. Only the international delegation has been granted full and unrestricted access to the courtroom. Other people had to wait in the lobby – private security guards would only allow a few people to enter the courtroom at a time. The private security guards’ attitude generated a lot of frustration. On the second day of the hearings, a rotation system was put in place by the supporters, thus ensuring that anyone who wished to attend the hearings could do so, at least in part. People were strictly forbidden to take pictures – those who attempted to do so had their camera confiscated. Conversely, discrete phone calls were tolerated. The atmosphere in the courtroom was sometimes tensed, sometimes good-natured. The Observer acknowledges that those strict access measures were warranted in the circumstances . The highly charged emotional climate surrounding the proceedings could indeed result in breaches of decorum. However, the Observer was informed of the existence of larger courtrooms elsewhere in the Justice Palace that could have accommodated the trial proceedings. The Observer wonders if the decision to hold the proceedings in a smaller courtroom was a deliberate attempt to restrict the publicity of the debates. Those of the accused who were subjected to pre-trial detention were guarded by an impressive number of gendarmes, who were following them every time they had to go out of the courtroom . The Observer nonetheless noted a relatively relaxed security atmosphere, which contrasted with the seriousness of the charges brought against the accused. The Parties The proceedings were conducted before a bench of three judges, one of which was presiding over the proceedings. The judges were assisted by a few clerks. The Observer understood that the Turkish Prosecution is, in principle, independent from the judiciary – although its representative wore the same robe as the judges and would exit the 167 members of KESK on trial The only ‘evidence’ adduced in Court appeared to be the declarations of the accused. It was not quite clear whether it was a trial per se or simply a procedural hearing INTERNATIONAL union rights Page 18 Volume 21 Issue 1 2014 The Observer, WILLIAM ST-MICHEL, works as an Associate Legal Officer for the UN International Criminal Tribunal for the Former Yugoslavia. The Observer is not employed by ICTUR or any trade union or affiliate. He attended the hearings in his personal capacity and not as a representative of the United Nations or the Tribunal O n 1 February 2013, a suicide bomber attacked the United States Embassy in Ankara (Turkey), killing one security guard. The responsibility for the attack was claimed by the Revolutionary People’s Liberation Party-Front (‘DHKP/C’) – an organisation regarded by the Turkish authorities as a ‘terrorist organisation’. On 19 February 2013, the police arrested 167 members and leaders of the Turkish Confederation of Public Workers’ Unions (‘KESK’) for their alleged relationship with the DHKP/C. Various charges under the Anti-Terror Law were brought against the accused. Most of the accused are public workers , including teachers, nurses and public servants. Some are journalists. On 23, 24 and 27 January 2014, 56 of the 167 persons arrested on 19 February 2013 appeared for trial before a criminal court at the Istanbul Çağlayan Justice Palace. The vast majority of the accused – 27 of which were detained pending trial – were facing charges of membership with a terrorist organisation and propaganda against the indivisible unity of the State. In addition to those two charges, one of the 56 accused was also charged with ‘leading’ a terrorist organisation. Upon the request of the KESK, the International Centre for...

The Moral Case for Restorative Justice as a Corollary of the Responsibility to Protect: A Rwandan Case Study of the Insufficiency of Impact of Retributive Justice on the Rights and Well-Being of Genocide Survivors

This article analyzes how the current framework of retributive justice pursued by the UN International Criminal Tribunal for Rwanda fails to respect the human rights and to enable the well-being of Rwandan genocide survivors. Rwandan genocide survivors currently suffer from widespread poverty, lack of access to health care and housing, inadequate educational opportunity, and food insecurity and malnutrition. It calls for the application of restorative justice as an extension of the principle of the Responsibility to Protect for genocide survivors to be included in the remit of the Tribunal and UN humanitarian and development programs in Rwanda. It examines current and past restorative justice programs in various countries around the world to provide tangible examples of ways in which restorative justice can be implemented. It critically questions the moral logic of exclusive reliance on retributive justice that ignores the consequences of genocide by punishing the guilty without simultaneously assisting the victims. Finally, it urges that the Declaration of Basic Principles on Remedy and Reparation for Victims of Human Rights Violations and Article 75 of the Rome Statute of the International Criminal Court be applied to the work of the UN International Criminal Tribunal for Rwanda.

Transfer or Transformation?: A Review of the Rule 11 bis Decisions of the International Criminal Tribunal for Rwanda

On 8 October 2008, the Appeals Chamber of the UN International Criminal Tribunal for Rwanda (ICTR) upheld the decision not to transfer the case of Yussuf Munyakazi to Rwanda. This was followed by two consistent decisions relating to Gaspard Kanyarukiga and Ildephonse Hategekimana. In application of Rule 11 bis of the ICTR’s Rules of Evidence and Procedure, the Trial and Appeals Chambers were not persuaded that the accused would receive a fair trial in Rwanda. Rule 11 bis governs the transfer, to competent national jurisdictions, of individuals indicted but not yet tried by the ICTR. This rule was intended to create a bridge between the practice of international criminal law and domestic criminal justice processes by ensuring that domestic courts have an adequate legal framework to try international crimes and provide suitable fair trial guarantees. Following changes to Rwandan legislation, on 28 June 2011 a newly constituted referral bench ruled in favour of transferring the case of Jean Uwinkindi to Rwanda. These differing decisions by the ICTR on the transfer of cases provide

A Case Study in Underachievement: The International Courts and Genocide in Bosnia-Herzegovina

Two international courts—the UN's International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ)—have established that genocide occurred in Srebrenica in Bosnia in 1995. Germany's courts have concluded that genocide occurred in both Northern and Eastern Bosnia in 1992, and an appeal against a conviction for genocide on this basis was dismissed by a third international court—the European Court of Human Rights (ECHR). Yet, there has been minimal international punishment of genocide in Bosnia. Serbia was convicted by the ICJ only of a failure to prevent and punish genocide. Only one middle-ranking individual has been definitely convicted of a genocide-related charge by the ICTY; three others of similar or lower rank have been convicted but are appealing the convictions. Only six individuals from Serbia or Montenegro were ever indicted by the ICTY for war crimes in Bosnia and no one has yet been convicted. Of the two most notorious Bosnian Serb genocide suspects—Ratko Mladić and Radovan Karadžić—the first has not yet been arrested while the second was arrested only in July 2008 and has not yet been convicted. International awareness that systematic mass murder occurred in Bosnia and the courts' conclusive verdict that at least some of this involved genocide have translated into minimal punishment of the perpetrators. This paper explores the reasons why international justice has underachieved in regards to the mass murder in Bosnia by examining the structural weaknesses, political pressures, and errors of judgment that have hampered the international courts.

A Case Study in Underachievement: The International Courts and Genocide in Bosnia-Herzegovina

Two international courts—the UN's International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ)—have established that genocide occurred in Srebrenica in Bosnia in 1995. Germany's courts have concluded that genocide occurred in both Northern and Eastern Bosnia in 1992, and an appeal against a conviction for genocide on this basis was dismissed by a third international court—the European Court of Human Rights (ECHR). Yet, there has been minimal international punishment of genocide in Bosnia. Serbia was convicted by the ICJ only of a failure to prevent and punish genocide. Only one middle-ranking individual has been definitely convicted of a genocide-related charge by the ICTY; three others of similar or lower rank have been convicted but are appealing the convictions. Only six individuals from Serbia or Montenegro were ever indicted by the ICTY for war crimes in Bosnia and no one has yet been convicted. Of the two most notorious Bosnian Serb genocide suspects—...

Legal aid and defence support at the UN International Criminal Tribunal for the former Yugoslavia

In 1993, the United Nations Security Council, in response to the atrocities that engulfed the former Yugoslavia, decided to create the world's first truly international criminal court – the UN International Criminal Tribunal for the former Yugoslavia (ICTY). This was a great experiment in accountability and a truly visionary step by the Security Council. This article will discuss some of the rules and policies applicable to legal aid and defence support at the ICTY as well as their evolution and the challenges encountered along the way.

After genocide: transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond

In After Genocide, leading scholars and practitioners analyze the political, legal, and regional impact of events in post-genocide Rwanda within the broader themes of transitional justice, reconstruction, and reconciliation. Given the forthcoming fifteenth anniversary of the Rwandan genocide, and continued mass violence in Africa, especially in Darfur, the Democratic Republic of Congo, and northern Uganda, this volume is unquestionably of continuing relevance. The book features chapters from leading scholars in this field, including William Schabas, Rene Lemarchand, Linda Melvern, Kalypso Nicolaidis, and Jennifer Welsh, along with senior government and non-government officials involved in matters related to Rwanda and transitional justice, including Hassan Bubacar Jallow (prosecutor of the UN International Criminal Tribunal for Rwanda), Martin Ngoga (prosecutor general of the Republic of Rwanda), and Luis Moreno Ocampo (prosecutor of the International Criminal Court). After Genocide also offers an unprecedented debate between Rwandan President Paul Kagame and Rene Lemarchand on post-genocide memory and governance in Rwanda. Because Rwandan voices have rarely been heard internationally in the aftermath of the genocide, this anthology incorporates chapters from Rwandan academics and practitioners, such as Tom Ndahiro, Solomon Nsabiyera Gasana, and Jean Baptiste Kayigamba--all of whom are also survivors of the 1994 genocide--and draws on their personal experiences. After Genocide constitutes the most comprehensive survey to date of issues related to post-genocide Rwanda and transitional justice.

Anti-Complementarity: Referral to National Jurisdictions by the UN International Criminal Tribunal for Rwanda

Security Council Resolution 955 of 8 November 1994, which established the International Criminal Tribunal for Rwanda, “Stress[ed] also the need for international cooperation to strengthen the courts and judicial system of Rwanda, having regard in particular to the necessity for those courts to deal with large numbers of suspects”.1 In this respect, the context of establishment of the Tribunal was somewhat different than that of its companion, the International Criminal Tribunal for the former Yugoslavia, which had no equivalent clause in its preamble.

Witness Proofing in International Criminal Tribunals: Response to Ambos

AbstractThis article examines the analytical framework and key arguments used by K. Ambos to conclude that witness proofing is neither a legally permissible nor necessary useful practice before the ICC in his reply to ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’. Contrary to Ambos, the article argues that witness proofing cannot be both acceptable at the UN international criminal tribunals and per se inappropriate at the ICC, given the ICC's procedural regime allowing for trials to be conducted in a form almost identical to those of the UN tribunals. A related argument is that the practice of witness proofing is not prohibited in the law governing the ICC, even if not provided for. Further arguments conclude that reliance upon spontaneity of a witness in court as a guarantee of reliability is misplaced, that the merits of national practices are irrelevant to the overall analysis, and that international judges are competent to manage the negligible risks associated with witness proofing.

Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence

AbstractWitness proofing – or preparation – is an adjunct of the adversarial criminal trial process. It is also a common practice at the UN international criminal tribunals, where it has been repeatedly challenged, analysed, and endorsed. Recently, a trial chamber at the ICC prohibited the prosecutor from proofing witnesses, seemingly calling upon the institution, at an early stage, to break with the established practice of proofing at the UN international criminal tribunals. This article examines witness proofing in international criminal procedure with the aim of describing and weighing its relative merits, and arguing that proofing – as practised at the UN international criminal tribunals – appears to be a better modality for enhancing the efficiency, integrity, and legitimacy of the truth-seeking function of international criminal trials than does prohibiting the practice.

To Save Her Life: Disappearance, Deliverance, and the United States in Guatemala (review)

Reviewed by: To Save Her Life: Disappearance, Deliverance, and the United States in Guatemala Richard L. Siegel (bio) Dan Saxon , To Save Her Life: Disappearance, Deliverance, and the United States in Guatemala ( Berkeley and Los Angeles: University of California Press, 2007) pp. 306 pages This book is not for those looking for a typical academic book about human rights. As suggested by the publisher, it is "part human rights drama, part political thriller, part love story." It is also a well researched study that is insightful about the realities of rights and violence in Guatemala during the late 1980s and early 1990s. The author analyzes decisionmaking by US and Guatemalan government and nongovernmental officials while telling an exciting story that brings human rights advocacy to life in ways that will fascinate students and experts alike. The author, Dan Saxon, has been a prosecutor at the UN International Criminal Tribunal for the former Yugoslavia for nine years. The events in To Save Her Life took place in 1992, when he was legal adviser to the Archdiocese of Guatemala's Human Rights Office. Having completed years of political and historical research, Saxon provides substantial context to a case study of human rights protection achieved by the work of many groups and individuals. And he is obviously fascinated by the implications of this case for judging how the United States Government weighs human rights considerations against an array of other factors, in particular the need to maintain cooperation with other states in the "war against drugs". Saxon could write a second book about researching, writing and publishing To Save Her Life. Major and lesser actors involved in the central events had to decide how to respond to his inquiries in interviews that took place years later. This reviewer had a small role in this project as a reader of an initial draft who appreciated Saxon's excellent writing style and his determination to write a very thorough study of the events that he lived through as a major player. The readers' need for historical and political context is addressed well in a book that is, at one major level, the story of the rescue of a woman and her son. At a second level, it is the story of how individuals, groups and bureaucracies that affect human rights decisions operate across national lines and are affected by the idiosyncratic behavior of other protagonists, a changing political climate at home and abroad, the various ways that advocacy is carried out, and the constraints on everyone involved. Saxon states in his preface that while he believed at the start that this story was about the collision of humanitarianism and politics, he came to understand that humanitarianism is politics. This particular effort at humanitarian intervention was even more political than most, in part because the object of the rescue, Maritza Urrutia, was an active member of an insurgent organization in a country with friendly but complex relations with the United States. In order to secure her rescue from Guatemala, her life story had to be packaged for American official consumption, and both that story and the intensity of the advocacy work had to be well-calibrated. [End Page 221] Ultimately, what counted most was the willingness of officials in the US Embassy in Guatemala and in the State Department to commit themselves to facilitating the rescue. Earlier crucial decision making occurred within the Guatemalan Army and in the Office of the President of the country. The choices made by those Guatemalans shaped a disappearance and reappearance that made possible a second phase of politics and humanitarian intervention. Saxon ably allows the reader to view these events from multiple perspectives. Richard L. Siegel Richard L. Siegel is Professor Emeritus of Political Science at the University of Nevada, Reno and President of the American Civil Liberties Union of Nevada. Copyright © 2008 The Johns Hopkins University Press

The UN international criminal tribunals: the former Yugoslavia, Rwanda, and Sierra Leone

This book is a guide to the law that applies in the three international criminal tribunals, for the former Yugoslavia, Rwanda and Sierra Leone, set up by the UN during the period 1993 to 2002 to deal with atrocities and human rights abuses committed during conflict in those countries. Building on the work of an earlier generation of war crimes courts, these tribunals have developed a sophisticated body of law concerning the elements of the three international crimes (genocide, crimes against humanity and war crimes), and forms of participation in such crimes, as well as other general principles of international criminal law, procedural matters and sentencing. The legacy of the tribunals will be indispensable as international law moves into a more advanced stage, with the establishment of the International Criminal Court. Their judicial decisions are examined here, as well as the drafting history of their statutes and other contemporary sources.

Security in South Eastern Europe: the war crimes legacy

The war crimes legacy remains the chief obstacle to progress in international in international and regional security cooperation and integration in South East Europe. Tackling it is the sine qua non for partnership and association with NATO and the EU. Dealing with the issue is vital to the development of healthy and prosperous democratic polities in the region. The Prosecution at UN International Criminal Tribunal for the former Yugoslavia in The Hague has been weak in the symbolic Milosevic case, which does nothing to increase confidence about cooperation. Despite this, the war crimes issue is vital to security sector reform – without addressing it, there cannot be reform and without reform there can be no significant progress regarding NATO and the EU. While the legacy was strongest in Belgrade and problems were greatest there, both Zagreb and Pristina have kept Belgrade company in protecting war crimes suspects and not cooperating fully with The Hague. At the same times, attempts to tackle the legacy were hesitant and weak. The prospects for each of them would be better when they realised that its real interest was in being different from and better than the others, rather another problem case, where the authorities could not, or would not, confront the war crimes legacy.

Accounting for Genocide: How Many Were Killed in Srebrenica?

The takeover of the UN ‘safearea’ of Srebrenica by Bosnian Serb forces inJuly 1995 was followed by the killing of alarge number of male Bosnian Muslim civilians,in what has been characterized as the worstmassacre in Europe since World War II. Thisarticle is based on a report submitted asevidence to the UN International CriminalTribunal for the former Yugoslavia (ICTY) inthe case against General Radislav Krstic,who became the first person to be convicted ofgenocide at this Tribunal. This case also formspart of the genocide charges against SlobodanMilosevic, Radovan Karadžic and RatkoMladic. To our knowledge, this report isunique among genocide studies in its approach,using individual-level data to identify everyvictim in order to arrive at a highly reliableminimum estimate of the number of peoplekilled. This was possible because of efforts byhumanitarian organizations to register peoplewho disappeared during the war as well as theavailability of both pre- and post-conflictdata on individuals. We conclude that at least7,475 persons were killed after the fall ofSrebrenica. We also present estimates of theprobability of being a victim: more than 33%for Muslim men who were enumerated inSrebrenica in 1991.

Rape and HIV/AIDS in Rwanda

Rape and HIV/AIDS in Rwanda

Aspects of the relationship between the International Criminal Court and the United Nations

The conclusion and adoption of the Statute of a permanent International Criminal Court (hereafter ‘the Statute’) in Rome in July 1998 represented a turning point in the enforcement of legal norms regulating armed conflict. The establishment and functioning of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda represented an important first step in this area, and the work of these tribunals will prove of considerable importance to the interpretation and application by the ICC of the body of substantive law that it will apply. However, the separate treaty basis of establishment of the ICC means that it is clearly not part of the UN Organization which consists of the six principal organs specified in Article 7(1) of the Charter and their subsidiary organs. As such there is a very clear distinction in institutional terms between the ICC and the ICTY/ICTR that were both established by the UN Security Council as UN subsidiary organs pursuant to Chapter VII of the Charter. This differing basis of establishment raises the key issue of the nature of the relationship between the ICC and the UN.

Command Responsibility of Civilian Superiors for Genocide

The article critically examines the use of the doctrine of command responsibility by the UN International Criminal Tribunal for Rwanda in two of its judgements, Kayishema & Ruzindana and Musema. It argues that in assessing superior-subordinate relationships the ICTR applied the wrong standard in both cases. While there is no doubt that civilian superiors are liable to prosecution for command responsibility, the doctrine will be properly operative only in cases where the superior's control of subordinates strongly resembles that enjoyed by military commanders. The article builds upon the arguments of the ICTY's Čelebići judgement on this point, and emphasises the difficulty in holding lower-ranking Rwandan civilians responsible as superiors for genocide committed by supposed subordinates.