Showing posts with label ICTY. Show all posts
Showing posts with label ICTY. Show all posts
By Maura Sokol


Picture: Globe License: Public Domain

2017 marked the end of the International Criminal Tribunal for the former Yugoslavia (ICTY), which closed out its existence with high profile convictions. Although international justice may have been achieved in these cases, a number of international crimes were committed across the globe in 2017, many of which will remain a threat in 2018.

International Criminal Tribunal for the former Yugoslavia

In November, the ICTY Tribunal in the Hague brought its prosecutions to a close. The ICTY was first created in May 1993, under Resolution 827 by the United Nations Security Council to prosecute international crimes committed during the Yugoslav Wars. This creation of an international, ad hoc tribunal has left an enduring legacy on international criminal law. During its 25 years of existence, 161 individuals have been charged with crimes and 151 have faced trial, with 90 convictions that included major generals and political leaders. All unresolved cases will now be handed over to another ad hoc criminal court, the Mechanism for International Criminal Tribunals (MICT).

General Radko Mladic, the former Bosnian Serb army chief known as the “Butcher of Bosnia” was one of the last war criminals convicted in the ICTY. In November, the tribunal sentenced him to life in prison for genocide, crimes against humanity, and war crimes. Mladic was responsible for thousands of deaths, engaged in ethnic cleansing, and was responsible for the 1995 genocide of Srebrenica and the three-year siege and bombardment of Sarajevo.

During the last hearing of the ICTY, the convicted Bosnian Croat war criminal Slobodan Praljak drew much of the media’s attention by committing suicide in the courtroom after ingesting potassium cyanide. The hearing had been part of an appeal by six Bosnian Croat political and military leaders who were convicted in 2013 of persecuting, expelling and murdering Bosnian Muslims. Praljak ingested the cyanide after the tribunal announced he had lost his appeal. Praljak had been sentenced to 20 years in prison.

Genocide in Myanmar

The government in Myanmar, once known as Burma, committed horrific violence against the Rohingya, Myanmar’s minority Muslim population, in what the United Nations high commissioner for human rights called a “textbook example of ethnic cleansing.” Beginning on August 25th, more than 626,000 Rohingya have fled Myanmar and an estimated 9,000 were killed by late September. Hundreds of villages have been destroyed or burned to the ground, and the Associated Press has reported a campaign of mass rape, robbery and torture. Despite widespread condemnation, there has been little action from the international community.

Syrian War Crimes

Efforts to investigate and bring to justice the many war crimes committed by Syrian President Bashar al Assad’s regimes continued throughout 2017. In November, Amnesty International published an extensive new report that detailed the regime’s massive campaign of sieges, unlawful killings, and forced displacement through use of “surrender or starve” tactics. The Islamic State has unlawfully killed civilians and used them as human shields, and the US-led coalition has also carried out attacks that led to the death of civilians, in violation of international humanitarian law. By the end of 2017, more than 400,000 people have died and more than 11 million people have been displaced.

Courts in Spain, Germany and Sweden have all attempted to bring individuals to justice for war crimes committed, and in October the first individual was convicted in the conflict and sentenced to eight months in prison in Sweden. 2017 also saw the beginning of the International, Impartial and Independent Mechanism (IIIM) to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes in Syria, which was established by UN General Assembly at the end of 2016.
By Navneet Binning

Picture: Globe License: Public Domain

In 2017, the Law of War saw many new developments. These include: the closure of the ICTY, the increased threat of cyber warfare, attempts to eliminate nuclear weapons, and a movement to fight the spread of chemical weapons.

ICTY
The International Criminal Tribunal for the Former Republic of Yugoslavia (ICTY) formally closed on December 21st 2017.  The ICTY was created to adjudicate claims of war crimes that occurred in the Balkans in the 1990’s. The ICTY was open for twenty-four years, delivered 161 indictments, and sentenced ninety individuals for genocide, crimes against humanity, and other crimes.

The closure is particularly significant because it marks a shift in international law away from specific criminal tribunals; previously, individual criminal tribunals have been used to prosecute war crimes in the Balkans and Rwanda. International law experts hope that the closure of ICTY will be a catalyst towards the goal of establishing universal jurisdiction for war crimes in the International Criminal Court (ICC).

Cyber Warfare
In recent years, there has been an increasing fear of the threat of cyber warfare. In 2017, cyber warfare has threatened physical destruction of civilian and military assets. For example, terrorist groups could gain control of cyber switches and use them to derail trains.

However, most of cyber warfare has focused on undermining institutional integrity. In 2017, allegations of Russian interference in the 2016 US presidential election created mass distrust in the American political system. Cyber warfare used to undermine institutional integrity is particularly concerning because it is difficult to defend oneself from and retaliate against such attacks.

Treaty on the Prohibition of Nuclear Weapons
In March and July 2017, the United Nations General Assembly met for a conference aimed to prohibit and, eventually, completely eliminate nuclear weapons. The Treaty on the Prohibition of Nuclear Weapons was approved on July 7th.

The treaty requires signatories to abstain from developing, possessing, and threatening the use of nuclear weapons. The treaty would also prohibit nations from transferring nuclear weapons between one another.

122 nations signed the treaty, but the nine nations who are known or believed to possess nuclear weapons did not. These nine nations are the United States, Russia, United Kingdom, China, France, India, Pakistan, North Korea, and Israel. A joint statement from the United States, United Kingdom, and France states that the nations do not intend to join the treaty.

Opponents of the treaty believe that it “disregards the realities of the international security environment” and fails to address the growing threat of North Korea’s nuclear programs. Opponents instead propose strengthening the Nuclear Nonproliferation Treaty, which was enacted in 1970 prohibits nations other than the five original nuclear powers (United States, Russia, United Kingdom, France, and China) from pursuing nuclear weapons and directs the five original nuclear powers to work towards nuclear disarmament.

Syria Missile Attack
On April 7, the United States, directed by President Trump, carried out a missile strike in Syria that killed more than eighty civilians. The attack was in response to the Syrian government’s use of chemical weapons against its civilians and to signal the United States’ disapproval of Syria’s use of chemical weapons.

The attack prompted wide criticisms, particularly from Russia. A spokesman for President Putin stated that the strike was a “significant blow” for the relationship between the United States and Russia and had no impact on combating international terrorism. Rather, the attack undermined efforts to establish an international coalition to fight the use of chemical weapons.


By Molly Kirwan

 
The law of armed conflict became a more complicated realm during 2016. The ever-increasing prevalence of hybrid warfare, which refers to conflicts that blend conventional and irregular tactics, led some to argue that the Geneva Convention needs to be updated to address issues of warfare in the world of today. The ongoing refugee crisis has reinforced the international focus on protecting those affected by armed conflict with respect to international human rights laws and standards.

The effectiveness and relevance of the Geneva Conventions has been called into question. The Geneva Conventions were agreed upon in 1949, and two Additional Protocols were added in 1977. However, there have been no major updates since that time despite forty years having passed. Given the evolution of armed conflict from traditional, between two states, to hybrid, between a state and a non-state actor, it is widely argued that updates ought to be made.

In May, the World Humanitarian Summit took place in Istanbul, setting many goals and creating many action plans to protect those affected by conflict across the globe. The most relevant to the law of war is the goal to “uphold the norms that safeguard humanity,” largely reiterating parts of the Geneva Convention. The goal purports that respecting the law of war should include
  1. Upholding the “cardinal rules,” such as the fundamental rules of distinction and proportionality, which are mandated by the 1977 Additional Protocols. 
  2. Ending the targeting of hospitals, schools, and places of worship, and allowing impartial actors to engage in dialogue with those in conflict.
  3. Refraining from bombing and shelling populated areas, specifying the end of weapons with intentionally indiscriminate effects.
  4. Meeting the essential needs of people.
  5. Respecting and protecting humanitarian medical missions.
In March, the International Criminal Tribunal for the Former Yugoslavia convicted Radovan Karadžić of genocide, crimes against humanity, and violations of the laws or customs of war regarding the role he played in the conflict in Bosnia and Herzegovina from 1992 to 1995. He was sentenced to forty years in prison.

The definition of a “war crime” is broadening as well, with Ahmad al-Faqi al-Mahdi being the first person sentenced to prison for cultural heritage crimes as a stand-alone crime. There is growing concern on the issue of prosecuting cultural heritage crimes due to the fact that similar crimes are occurring in countries where the International Criminal Court (ICC) does not have jurisdiction, such as Yemen, Iraq, and Syria. Thus, the ICC cannot act in those countries without a specific mandate from the UN Security Council, which is unlikely to happen given the current dynamics of the permanent five members. This is despite the fact that the ICC President called for participation of States in the Court to be “maintained and enlarged” in October.

After Al-Mahdi admitted to destroying shrines in Timbuktu in the summer of 2012, he was arrested in Niger in 2014, and the ICC sentenced him to nine years in prison this past September. According to the New York Times, the case has “put a new focus on cultural destruction as a war crime, or as a crime against humanity,” at a time when “international law must address deliberate attacks on a people’s heritage when they are an intrinsic part of warfare.”


By Sara Probber


International Criminal Court (ICC)

The ICC has been taking on new and challenging cases.  However, this has undermined the support of various states for its mandate. There have been several cases that have demonstrated the ICC prosecutor’s more comprehensive ability to prosecute individuals for their crimes.   The ICC has seen expansions on several fronts including prosecuting individuals for new types of war crimes, prosecuting leaders, and working as a complement to domestic legal systems to impose more rigorous sentences.   Some landmark cases include:
  • Ahmad Faqi Al Mahdi charged him with ordering the destruction of monuments in Timbuktu. This is the first case to focus on cultural destruction as a war crime. 
  • Germaine Katanga, a warlord from the Democratic Republic of Congo, had been sentenced by the ICC to 12 years imprisonment and was due to be released early in January 2016.  He was transferred back to the DRC in December 2015 to serve the remainder of his sentence. In early February, the DRC requested leave from the ICC for the prosecution. On April 7, 2016, the President of the ICC approved the prosecution of Katanga by the DRC stating that the charges were different from those at the ICC. This is the first time the Court has been called upon to interpret and apply Article 108, Paragraph 1 of the Rome Statute, which requires ICC approval of prosecution of an individual in the custody of a State of enforcement. 
  • The trial of Laurent Gbagbo, the former president of the Côte d’Ivoire, began 28, 2016. This trial was the first time that the ICC has had a former head of state in trial facing charges. 
  • Dominic Ongwen, on January 22, 2016 was accused of 70 crimes including war crimes and crimes against humanity in proceedings intended to confirm the charges.
  • On February 12, 2016, the appeals chamber placed a limitation on the prosecution ruling that they could not use recorded statements by five witnesses who either recanted those statements or failed to show up in court. Accordingly, on April 5, 2016, the ICC dismissed the case against Ruto and arap Sang, who had been charged with three crimes against humanity related to the violence following Kenya’s disputed elections in 2007. 
  • On March 21, 2016, Jean-Pierre Bemba, who led the Congolese Liberation Movement, was convicted for war crimes and crimes against humanity committed in the Central African Republic. This was the first conviction for the crime of rape at the ICC. He was sentenced to 18 years imprisonment.
The backlash from the broader prosecutorial scope has been widespread. ICC Memberships were in contention throughout 2016.  On January 27, 2016, the ICC authorized an investigation into the alleged war crimes and crimes against humanity committed by Russia in South Ossetia between July 1 and October 10, 2008. Russia de-signed the Rome Statute on November 16, 2016. In October, Burundi, Gambia, and South Africa also announced withdrawals, although in 2017 a court found South Africa’s withdrawal was unconstitutional so it is not settled. On November 14, 2016, the ICC prosecutor announced that there was a “reasonable basis to believe” American soldiers had committed war crimes in Afghanistan. The crimes likely to be considered would include torture if a full-fledged investigation were launched. 

National and Supranational
National and supranational bodies have taken on a prominent role in trying international criminals and internationally convicted individuals within their own borders.  However, cross-border cooperation has proved problematic for domestic justice systems.

Conviction of Hissène Habré
On May 30, Hissène Habré, the former Chadian president, was sentenced to life in prison by the Extraordinary African Chambers in the Senegalese court system. Charges included torture, war crimes, and crimes against humanity connected with his rule of Chad from 1982 to 1990.

Lithuanian War Crime Trials of Former Soviet Officials
On January 27, 2016, Lithuania began war crimes trials for 65 former Soviet military officials based on their actions during Lithuania’s 1991 independence movement. The actions of the Soviet Army resulted in 14 civilian deaths and more than 700 wounded individuals.  Russian officials have refused to assist and many of the accused will not attend the trial and instead by represented by court-appointed attorneys.

Extradition and Extraterritorial Jurisdiction
On May 10, 2016 the European Court of Justice ruled that in order to preserve the freedom of movement of European Union nationals, if the extradition of a national of one member state is sought by a non-member, the state to whom the request is made must give priority to the individual’s state of nationality. The purpose of this measure is to maintain the equality of treatment for nationals and non-nationals moving freely within the EU while still providing recourse for unlawful action by returning an individual for prosecution in his state of nationality. This ruling is not binding on subsequent decisions, but may set a difficult precedent for the United States, a nation whose laws permit the extradition of nationals. 

Syria
The United States has used active rhetoric regarding the Syria conflict, and has sought, domestically, to call for action.  However, in 2016 this was restricted to calls by the House of Representatives to direct a UN ambassador and condemnation and calls for investigations. 

The High Commissioner for Human Rights asserted that war crimes should not be part of any Syria amnesty on February 1, 2016. In mid-March the House of Representatives called on the President of the United States to direct his ambassador to the UN to promote the establishment of a war crimes tribunal, which, based on the resolution, might have jurisdiction over US nationals.

On March 17, 2016 John Kerry announced, during a news conference at the State Department, that, in his judgment, “Daesh is responsible for genocide against groups in areas under its control including Yazidis, Christians and Shia Muslims."  On October 7, Kerry accused Russia and Syria of war crimes and called for an investigation of their actions in Syria.

Kosovo
In mid-January the Dutch Ministry of Foreign Affairs confirmed that there will be a tribunal set up in the Hague to try alleged crimes committed by the Kosovo Liberation Army from 1999-2000.

On January 21, 2016, Oliver Ivanovic, who is considered a political moderate, was charged with war crimes and received a nine-year sentence from EU’s Rule of Law Mission (EULEX).  He was the leader of a paramilitary police force in 1999.  The four men accused alongside him were acquitted.  He is under house arrest pending appeal.

International Criminal Tribunal for the Former Yugoslavia
The ICTY continued to issue rulings and began to transition further deliberations to the Mechanism for International Criminal Tribunals (“MICT”) – the successor to the ICTY. On March 24, 2016, Following an eight-year trial by the ICTY, Radvoan Karadzic has been found guilty of 10 of the 11 charges brought against him and sentenced to 40 years in jail.  Of the two counts of genocide, the Bosnian Serb leader was found guilty of the count relating to Srebrenica. Karadzic plans to appeal his sentence.  

On March 31, 2016, the ICTY acquitted Vojislav Šešelj, President of the Serbian Radical Party of three counts of crimes against humanity and six counts of war crimes. He was accused of having committed the crimes as part of a Joint Criminal Enterprise, but the court ruled that the purpose of the enterprise was political and not clearly criminal resulting in the acquittal.

Goran Hadžić’s trial, which began in 2012 and included 14 counts of war crimes and crimes against humanity, was indefinitely stayed on April 6, 2016, after he was deemed unfit to stand trial due to an inoperable brain tumor. The trial was terminated after his death on July 12, 2016.

On December 15, 2015, the ICTY ordered a retrial for Jovika Stanišić and Franko Simatović.  The retrial will take place under the MICT.

The prosecution and defense Final Trial Briefs were filed in Ratko Mladic’s trial on October 25, 2016.  This is the final trial at the ICTY and after the trial judgment the MICT will assume jurisdiction. Mladic faces an 11-count indictment including charges of genocide, crimes against humanity, and war crimes. Closing arguments began December 5, 2016.
By Shannon Togawa Mercer

The world of international institutions is abuzz with conversation about the conviction of Radovan Karadzic. On March 24, the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted the former President of Republika Srpska, and Supreme Commander of the Bosnian Serb army, for war crimes, genocide and crimes against humanity. Radovan Karadzic will serve 40 years of imprisonment for his crime. At his age, the 40 year sentence could very well translate to a sentence for life. This conviction represents more than justice for those impacted by the horrific Srebrenica massacre and other acts of ethnic cleansing. In a world in which the United Nations Dag Hammarskjold Library in New York announced that its most popular book of 2015 was “Immunity of Heads of State and State Officials for International Crimes,” this is, on its face, a reminder that former heads of state are not untouchable. Zeid Ra’ad al-Hussein, the United Nations human rights chief, explained the verdict as “a forceful manifestation of the international community’s implacable commitment to accountability.”
By Rick Mendenhall

Just last week, the International Criminal Tribunal for former Yugoslavia (ICTY) upheld the conviction of former Serbian General Tolimir for genocide. The former general is expected to remain incarcerated for the rest of his life. Although the decision was delivered without much fanfare, not every recent decision by the ICTY has been free from intrigue. The New York Times covered a heated row among court judges along national lines. The spat resulted in a judge being disqualified from a case.

With national ties playing a role in international courts, the question becomes how should judges be selected to avoid international disagreements? Please join the American Society of International Law on April 24, 2015 as they answer that very question. The panel includes a former judge of the International Criminal tribunal for former Yugoslavia, and the executive director of the Center for Justice and International law. Try not to miss it!
 By Stephen Kozey

Although international criminal law (ICL) has its roots in the 1500s or earlier, the normative development of this body of law only really picked up within the past century or so. Even though some aspects of ICL remain uncertain, its recent development has been fairly swift and robust. Thus, ICL doctrines are fully capable of reasoned application today to hold individuals responsible for international crimes they commit, such as war crimes and gross violations of international human rights.

Unfortunately, as Jack Donnelly points out, it seems that the procedural mechanisms for enforcing ICL do not deserve such kudos. The two principal avenues for prosecuting alleged international criminals – international tribunals and domestic courts – are simply not up to the task. Their inadequacy is evidenced, for example, by the fact that U.N. Secretary General Ban Ki-moon still has to plead for protection of human rights and an end to mass atrocities.

International criminal tribunals are not effective mechanisms because they tend to be expensive and overburdened, and proceedings often take many years to start and many more years to conclude. The title of a recent Forbes article on the ICC says it all: “International Criminal Court: 12 Years, $1 Billion, 2 Convictions.”