International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for the Former Yugoslavia
The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) by the United Nations Security Council in 1993 is one of the most significant contemporary developments for the prevention and punishment of crimes against humanity and genocide. Born out of the horrors of ethnic cleansing in the former Yugoslavia, the ICTY successfully prosecuted perpetrators irrespective of rank and official status, and became the first tribunal to prosecute a sitting head of state, Slobodan Milosevic. Against a long-standing culture of impunity that countenanced the likes of Pol Pot, Idi Amin, and Mengistu, it represented a revolutionary precedent that led to the acceptance and proliferation of other international and mixed courts, national trials, and other accountability mechanisms. As a central element of post-conflict peace-building in former Yugoslavia, it also challenged the conventional wisdom of political "realists," who held that accountability and peace are incompatible. Furthermore, ICTY jurisprudence made significant contributions to the law of crimes against humanity and genocide.
Creation of the ICTY
The unfolding of the atrocities in former Yugoslavia coincided with the end of the cold war and the consequent transformation of international relations. In the new political dispensation, the Soviet-era paralysis of the United Nations was increasingly replaced by cooperation between the five permanent members of the UN Security Council and unprecedented recourse to enforcement measures under Chapter VII of the UN Charter, especially in response to Iraq's invasion of Kuwait in 1990. Equally important was the rapid emergence of democratic governments in Eastern Europe, Latin America, and elsewhere in the world, giving human rights an unprecedented prominence.
In 1992 the Security Council took the unprecedented step of creating a Commission of Experts to investigate humanitarian law violations in the former Yugoslavia. On May 25, 1993, the Council unanimously adopted Resolution 827, pursuant to which it established the ICTY. The Tribunal was created under Chapter VII, which authorizes the Security Council to take enforcement measures binding on all member states of the UN. This was an unprecedented use of Chapter VII enforcement powers, and it directly linked accountability for humanitarian law violations with the maintenance of peace and security. This approach was necessary because Yugoslavia was unwilling to consent to an international criminal jurisdiction, because a treaty mechanism was too time-consuming in view of the need for expeditious action, and because the primary objective of the armed conflict was ethnic cleansing and other atrocities committed against civilians.
The ICTY Statute is a relatively complex instrument that had to express developments in contemporary international humanitarian law that had evolved over the half-century since the Nuremberg trials. It also had to elaborate the composition and powers of a unique independent judicial organ created by the Security Council. Under the statute, the subject-matter jurisdiction of the ICTY is based on norms that had been fully established as a part of customary international law. Articles 2 and 3 of the statute define war crimes, including violations of the 1949 Geneva Conventions and the 1907 Hague Regulations respectively. Article 4 reproduces the definition of genocide as contained in the 1948 Genocide Convention, and Article 5 defines crimes against humanity based on the Charter of the International Military Tribunal at Nuremberg. Article 7(1) defines the basis for the attribution of individual criminal responsibility, encompassing persons who "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime" recognized under the statute. Article 7(2) expressly rejects any form of immunity for international crimes, stipulating that "[t]he official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment." Furthermore, Article 7(3) codifies the doctrine of command responsibility, providing that crimes committed by subordinates may be attributed to their superior "if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof." Conversely, Article 7(4) provides that superior orders shall not relieve a subordinate of criminal responsibility, though it may be considered in mitigation of punishment.
Article 8 restricts the jurisdiction of the ICTY to the territory of the former Yugoslavia, and limits the ICTY to consideration of crimes beginning on January 1, 1991, coinciding with the early stages of Yugoslavia's disintegration. There is however, no outer temporal limit to jurisdiction. Article 9 provides that the ICTY and national courts enjoy concurrent jurisdiction, but that the ICTY shall have primacy, it can request national courts to defer investigations and prosecutions to the ICTY. Article 10 provides, however, that the principle of double jeopardy must also be respected, which means that a person may not be tried before the ICTY for crimes already tried before a national court, unless the earlier proceedings were not impartial or independent, or were designed to shield the accused from criminal responsibility, or otherwise not diligently prosecuted.
The ICTY was initially composed of a prosecutor, the registry, three trial chambers with three judges each, and an appeals chamber with five judges that also serves the International Criminal Tribunal for Rwanda (ICTR). Since its early days, additional judges have been added to the tribunal. Unlike the Nuremberg Tribunal, the ICTY cannot rely on an army of occupation to conduct the investigation or to apprehend accused persons. Thus, Article 29 provides that UN member states are under an obligation to render judicial cooperation to the ICTY. Specifically, they are obliged to "comply without undue delay with any request for assistance or an order issued by a Trial Chamber" in matters such as the identification and location of persons, the taking of testimony and the production of evidence, the service of documents, the arrest or detention of persons, and the surrender or the transfer of an accused to the ICTY. Such extensive powers derive from the binding character of Chapter VII enforcement measures, and are unprecedented in the history of international tribunals.
The ICTY was created by the Security Council, which also prepared a list of potential judges. The judges were then elected by the UN General Assembly. Furthermore, the General Assembly is responsible for reviewing and approving the ICTY's budget. Although the ICTY is a subsidiary judicial organ of the Security Council, the Council has no power to interfere in judicial matters such as prosecutorial decisions or trials. The ICTY Statute and its rules of procedure and evidence contain numerous procedural safeguards to ensure the independence and impartiality of the tribunal, and to guarantee the rights of the accused to a fair trial.
The first chief prosecutor, South African Constitutional Court judge Richard Goldstone, was appointed in July 1994. In the early days, the Office of the Prosecutor (OTP) was understaffed and inexperienced; investigators and prosecutors who were familiar only with domestic law enforcement wasted scarce resources investigating low-ranking perpetrators for the direct commission of crimes such as murder, rather than focusing on leadership targets.
During Judge Goldstone's tenure, the ICTY's prospects for arrest were meager because the war was still raging, and even after the conclusion of a peace agreement, the prosecutor had to rely on reluctant peacekeeping forces or local police to arrest and surrender indictees. In contrast with the Nazi leaders who were put on trial at Nuremberg, the first defendant before the ICTY was a low-ranking Bosnian Serb, Dusko Tadić, who was captured haphazardly while visiting relations in Germany. He was accused of torturing and killing civilians at detention camps in Bosnia's Prijedor region. Although he was a relatively low-profile defendant, his trial created the image of a court in action.
In 1996 Judge Goldstone stepped down and a Canadian appellate judge, Louise Arbour, was appointed as the new ICTY prosecutor. Her emphasis was on increasing the overall professional standards and effectiveness of the prosecutor's office. Her major accomplishment was in enhancing international cooperation in obtaining intelligence and executing arrest warrants, particularly with NATO countries. Although peacekeeping forces in the former Yugoslavia were initially reluctant to make arrests, it soon became clear that the leaders responsible for inciting ethnic hatred and violence were an impediment to post-conflict peace- and nation-building. UN peacekeepers began arresting indictees, and the ICTY's fortunes were dramatically changed. The first such arrest was that of Slavko Dokmanović, the mayor of Vukovar during the war, and it was affected by Polish peacekeepers belonging to the UN Transitional Authority in Eastern Slavonia, a Serb-controlled region of Croatia. With the arrest of more and more defendants, Arbour streamlined the work of the prosecutor's office, dropped several indictments against low-ranking perpetrators, and increasingly focused on the "big fish."
The pressure to indict the biggest "fish" of all, Slobodan Milosevic, became particularly intense, and on May 27, 1999, Arbour made public the indictment of Milosevic and four other senior officials for crimes against humanity and war crimes in Kosovo, both in relation to mass expulsions and massacres in certain locales. This move was initially controversial. Some viewed the indictment as an obstacle to a deal with Milosevic, while others criticized the appearance that the ICTY was unduly influenced by NATO countries.
Following intense international pressure, the Serbian government arrested Milosevic and surrendered him to the ICTY in June 2000. In October 2000, Milosevic was indicted for atrocities committed in Bosnia and Croatia. His historic trial began in 2002, consummating the ICTY's remarkable emergence from obscurity. Arbour resigned as prosecutor in 1999, to be replaced by Carla Del Ponte, a Swiss prosecutor renowned at home for prosecuting mobsters. Del Ponte focused heavily on the Milosevic case and on securing the arrest of other indicted leaders, from both Serbia and Croatia.
By 2003, the final wave of indictments was issued for atrocities committed in the Kosovo conflict. Many were against Serb military officers, but some were also issued against high-ranking members of the Kosovo Liberation Army for atrocities committed against ethnic Serbs in Kosovo. With the success of the ICTY and the mounting costs of time-consuming international trials, the Security Council called upon the prosecutor to complete all investigations by the end of 2004 and for the ICTY to complete trials by the end of 2008. The Council also approved the establishment of war crimes trial chambers in Bosnia and Herzegovina for the prosecution of lower-ranking defendants, in order to alleviate the ICTY's burden. As of early 2004, the ICTY prosecutor was not only responsible for trials of crimes committed in the former Yugoslavia, but also for the International Criminal Tribunal for Rwanda. In August 2003, the Security Council decided that the two spheres of responsibility should be split, and appointed a separate prosecutor for the ICTR.
Jurisprudence and Legal Developments
The jurisprudence of the ICTY has made significant contributions to international law, particularly in honing the definition of crimes against humanity and genocide. In an effort to effectively use its limited resources, ICTY trials were focused on the most serious crimes and on those most responsible for committing them. In practice, this focus was on crimes committed in execution of the ethnic cleansing campaign that amounted to crimes against humanity and, in certain important aspects, genocide. In order to ensure an appearance of impartiality, there were indictments not only against ethnic Serbs, but also against ethnic Croats, Muslims, and Kosovar Albanians. Furthermore, while focusing on those in leadership positions, certain prosecutions focused on issues of particular importance, such as the systematic use of rape as a weapon of war, and the destruction of cultural property. This prosecutorial strategy influenced and shaped the jurisprudence of the ICTY.
The first ICTY trial was the case of Prosecutor v. Dusko Tadić. This trial involved significant pronouncements on international humanitarian law, but the case is best known for its jurisprudence on the jurisdiction of the ICTY. Tadić challenged the legality of the ICTY's establishment, both on the grounds that it was beyond the powers of the UN Security Council, and because it was not a court established by law, insofar as the Council was not a legislative body. Appeals chamber president Antonio Cassese heard these arguments, and held that the establishment of a judicial organ was a valid exercise of the powers of the Security Council, in accordance with Chapter VII of the Charter of the United Nations. He also found that the ICTY was duly established by law in the international context because its standards conformed with the rule of law, there being no analogue to a legislature in the UN system. The appeals chamber also rejected challenges to the primacy of ICTY over national courts, based on the overriding interest of the international community in the repression of serious humanitarian law violations.
The leading case dealing with the ICTY's enforcement powers and the corresponding obligation of states to render judicial assistance is Prosecutor v. Blaškić. The case revolves around the refusal of the Croatian government to comply with orders for the production of evidence issued by an ICTY Trial Chamber. The Appeals Chamber held that Article 29 of the ICTY Statute obliged states to comply with ICTY orders, and that Chapter VII of the UN Charter was sufficient to assert the authority of ICTY to issue such orders. The Appeals Chamber also held that the failure of a state to comply with orders of the court could result in a charge of noncompliance against the state (or its agent), which could then be turned over to the UN Security Council for further action.
The arrest powers of the ICTY are found in Articles 19, 20, and 29 of the tribunal's statute, and in Rules 54 through 59 of the rules of procedure and evidence. Rule 55 obligates states to execute arrest warrants. The most significant cases on arrest powers were Prosecutor v. Slavko Dokmanović and Prosecutor v. Dragan Nikolić, respectively. In both cases, the defendants alleged that they had been arrested through either abduction or duplicity (in legal terms, the charge is called "irregular rendition"). The defendants argued that the nature of their arrests should preclude the ICTY from exercizing jurisdiction over them.
At least one of the arrests had, in fact, involved subterfuge. In Dokmanović's case, he was arrested after having been tricked getting into a vehicle that he thought was going to take him to a meeting. In this case, the trial chamber made a distinction between "luring" and "forcible abduction," and held that the former (which is what was done to Dokmanović) was acceptable, whereas the latter might provide grounds for a dismissal in future cases. Dokmanović was not permitted to appeal this decision. (Dokmanović's trial was later terminated because the defendant committed suicide).
Nikolić, whose motion was heard six years after Dokmanović's, was subject to a much more straightforward adbuction by "persons unknown" from the territory of the Federal Republic of Yugoslavia, and subsequently turned over to the ICTY. He based his appeal against his arrest on the grounds that the sovereignty of the Federal Republic of Yugoslavia was violated by his abduction, and that his rights were violated in a manner sufficiently serious to warrant discontinuance of proceedings. The Appeals Chamber held that state sovereignty does not generally outweigh the interests of bringing to justice a person accused of a universally condemned crime, especially when the state itself does not protest. Moreover, it found that, given the exceptional gravity of the crimes for which Nikolić was accused, a human rights violation perpetrated during his arrest must be very serious to justify discontinuance of proceedings.
Crimes Against Humanity
The definition of crimes against humanity found in Article 5 of the ICTY Statute is based on the Nuremberg Charter, but it incorporates enumerated acts such as imprisonment, torture, and rape, which were not included in the charter. Furthermore, while the Charter required that crimes against humanity be linked to an international armed conflict, the ICTY Statute also includes internal armed conflicts. This issue came up in the Tadić case. The defendant maintained that prosecution of crimes against humanity in the former Yugoslavia deviated from customary international law because the conflict was not international in character, as required by the Nuremberg Charter. Being that there was no existing law extending jurisdiction to the ICTY, the defense argued, there could be no legitimate charge of criminal action. The Appeals Chamber rejected this submission, however, commenting that customary law had evolved in the years since Nuremberg, and stating that the need for a connection to international armed conflict was no longer required. In fact, it argued that customary law might recognize crimes against humanity in the absence of any conflict at all.
This precedent helped persuade the drafters of the Rome Statute of the International Criminal Court to omit a requirement of a connection with armed conflict in the definition of crimes against humanity under its Article 7. Thus, under contemporary international law, atrocities committed outside the context of armed conflict also qualify as crimes against humanity, and this has resulted in a significant expansion of the protection afforded by this norm.
According to the ICTY, a crime against humanity is committed when an enumerated offence is committed as part of a widespread or systematic attack directed against a civilian population. ICTY jurisprudence has elaborated upon what is meant by a "widespread or systematic" attack. In Tadić, the Trial Chamber held that this requirement is inferred from the term "population," which indicates a significantly numerous victim group. While it does not necessitate that the entire population of a given state must be targeted, it does refer to collective crimes rather than single or isolated acts.
A finding either that the acts were committed on a large scale (widespread), or were repeatedly carried out pursuant to a pattern or plan (systematic), is sufficient to meet the requirement that they be committed against a population. It is the large number of victims, the exceptional gravity of the acts, and their commission as part of a deliberate attack against a civilian population, which elevate the acts from ordinary domestic crimes such as murder to crimes against humanity, and thus a matter of collective international concern. ICTY jurisprudence has also expanded the definition of potential victim groups vulnerable to crimes against humanity. This is done through its interpretation of the requirement that attacks must be "directed against any civilian population." In the Vukovar Kupreškić cases, the ICTY held that the definition of "civilian" is sufficiently broad to include prisoners of war or other noncombatants.
ICTY jurisprudence has also affirmed that crimes against humanity may be committed by people who are not agents of any state, thus broadening the ambit of possible perpetrators to include insurgents and terrorists. This definition was adopted in Article 7 of the Rome Statute, which requires that an attack be "pursuant to or in furtherance of a State or organizational policy."
Crimes against humanity also require a so-called mental element, which has to do with the intent of the perpetrators. For an act to be termed a crime against humanity, the perpetrator must not only meet the requisite criminal intent of the offence, but he must also have knowledge, constructive or actual, of the widespread or systematic attack on a civilian population. This requirement ensures that the crime is committed as part of a mass atrocity, and not a random crime that is unconnected to the policy of attacking civilians. ICTY jurisprudence has held that this requirement does not necessitate that the accused know all the precise details of the policy or even be identified with the principle perpetrators, but merely that he be aware of the risk that his act forms part of the attack.
ICTY jurisprudence has also developed definitions of the enumerated offences included under the rubric of crimes against humanity. These include extermination, enslavement, forced deportation, arbitrary imprisonment, torture, rape, persecution on political, racial, or religious grounds, and other inhumane acts. In addition, it has further sharpened the definition of genocide itself.
The definition of the crime of extermination was developed in the Krstić case, wherein the Trial Chamber noted that extermination was a crime very similar to genocide because it involves mass killings. Unlike genocide, however, extermination "may be retained when the crime is directed against an entire group of individuals even though no discriminatory intent nor intention to destroy the group as such on national, ethnical, racial or religious grounds" is present. Nonetheless, the crime had to be directed against a particular, targeted population, and there must have been a calculated intent to destroy a significant number of that targeted group's members. In one of the Foča rape cases, Prosecutor v. Kunarac et al, the Trial Chamber similarly contributed to the definition of the elements that make up the crime of enslavement. It held, that the criminal act consisted of assuming the right of ownership over another human being, and that the mental element of the crime consisted of intentionally exercising the powers of ownership. This included restricting the victim's autonomy, curtailing his freedom of choice and movement. The victim is not permitted consent or the exercise of free will. This curtailment of the victim's autonomy can be achieved in many ways. Threats, captivity, physical coercion, and deception, are but four such ways. Even psychological pressure is recognized as a means of enslavement. Enslavement also entails exploitation, sometimes (but not necessarily always) involving financial or other types of gain for the perpetrator. Forced labor is an element of enslavement, even if the victim is nominally remunerated for his or her efforts. Important to note is that simple imprisonment, without exploitation, can not constitute enslavement.
The ICTY Statute lists deportation as a crime against humanity, but goes on to specify that such deportation must be achieved under coercion. According to the statute, deportation is the "forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law." In the Krstić case, deportation was distinguished from forcible transfer. Deportation requires a population transfer beyond state borders, whereas forcible transfer involves internal population displacements. Both types of forced population movements were nonetheless recognized as crimes against humanity under customary law. The Trial Chamber in Krstić found that deportations or forcible transfers must be compulsory. In other words, they must be driven by force or threats or coercion which go beyond a fear of discrimination, and that there be no lawful reason for ordering the transfer, such as for the protection of the population from hostilities.
An ICTY Trial Chamber first defined imprisonment as a crime against humanity in Prosecutor v. Dario Kordić and in Prosecutor v. Mario Čerkez. However, such imprisonment must be arbitrary, without the due process of law. Further, it must be directed at a civilian population, and the imprisonment must be part of a larger, systematic attack on that population. ICTY jurisprudence also redressed a long-standing omission in humanitarian law, because prior to its rulings, a clear, explicit definition of torture had yet to be formulated. The leading ICTY case on torture is Prosecutor v. Anto Furundžija, as elaborated by Prosecutor v. Kunarac et al. In the Furundžija case, the Trial Chamber borrowed legal concepts from the human rights law of torture. Ultimately, the Trial Chamber determined that torture:
- (i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition
- (ii) this act or omission must be intentional;
- (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;
- (iv) it must be linked to an armed conflict;
- (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a state or any other authority-wielding entity.
When the ICTY was established, there was also no clear definition for rape under humanitarian or indeed, customary international law. Thus, the ICTY was required to define it more precisely when difficult cases came up. Borrowing from legal systems around the world, the Trial Chamber in Furundžija held that rape is the coerced sexual penetration of a victim (vaginally or anally), whether by the perpetrator's penis or by some other object, or the penetration of the victim's mouth by the perpetrator's penis. Coercion could involve force or the threat of force, and the coercion might be imposed on the victim or on a third party. The Trial Chamber added that
[I]nternational criminal rules punish not only rape but also any serious sexual assault falling short of actual penetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim's dignity. As both these categories of acts are criminalised in international law, the distinction between them is one that is primarily material for the purposes of sentencing.
In a later case, Prosecutor v. Kunarac et al., an ICTY Trial Chamber expanded the second element of the crime to encompass situations in which the threshold of force may not be met, but where consent is not freely given as a result of the complainant's free will. In Prosecutor v. Kupreškić, the ICTY drew on Nuremberg jurisprudence to clarify the definition of persecution, and set out its conclusions in the Prosecutor v. Tadić judgment. It defined persecution as a form of discrimination on the grounds of race, religion, or political opinion that is intended to be, and results in, an infringement of an individual's fundamental rights. In Prosecutor v. Kupreskić, the court determined what actions or omissions could amount to persecution. Drawing on various human rights instruments, the Trial Chamber defined persecution as
[T]he gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5. In determining whether particular acts constitute persecution, the Trial Chamber wishes to reiterate that acts of persecution must be evaluated not in isolation but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed "inhumane". This delimitation also suffices to satisfy the principle of legality, as inhumane acts are clearly proscribed by the Statute. . . . In sum, a charge of persecution must contain the following elements:
- (a) those elements required for all crimes against humanity under the Statute;
- (b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5;
- (c) discriminatory grounds.
Room for Further Evolution
The ICTY included a non-specific category of offenses, styled "other inhumane acts" as residual provision that allows for the inclusion by analogy of inhumane acts not enumerated. This was done to ensure that acts of similar gravity do not go unpunished simply because they are not expressly contemplated. This however, raises problems of legal principle. The concept of nullem crimen sine lege requires that there can be no crime if no law exists prohibiting an act. This, in turn, requires that crimes be exhaustively defined in order to be prosecutable. The Trial Chamber in Prosecutor v. Kupreskic discussed this problem and noted that, by drawing on various provisions of international human rights law, such as the Universal Declaration of Human Rights and the two UN Covenants for Human Rights,
it is possible to identify a set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity. Thus, for example, serious forms of cruel or degrading treatment of persons belonging to a particular ethnic, religious, political or racial group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent no doubt amount to crimes against humanity.
Once the legal parameters for determining the content of the category of "inhumane acts" are identified, the trial chamber held, resort may be had to comparing their similarity to other crimes against humanity to determine if they are of comparable gravity.
The definition of genocide in the ICTY Statute is identical to that in the Genocide Convention. Of great significance in determining that an act of genocide has been committed is the mental element of the crime. This requires a finding of a special intent, in which the perpetrator desires to bring about the outcome of destroying, in whole or in part. a national, ethnical, racial or religious group, in addition to the criminal intent required by the enumerated offence. ICTY jurisprudence has elaborated on the threshold of the special intent that must be demonstrated in a charge of genocide. Two particularly noteworthy cases are the Prosecutor v. Goran Jelisić case and Prosecutor v. Radislav appeal. Goran Jelisić was a detention camp leader who styled himself a "Serbian Adolf" and who had "gone to Brčko to kill Muslims." Despite compelling evidence of genocidal intent, the Trial Chamber acquitted Jelisić of genocide on the grounds that
the acts of Goran Jelisić are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such. All things considered, the Prosecutor has not established beyond all reasonable doubt that genocide was committed in Brcko during the period covered by the indictment. Furthermore, the behavior of the accused appears to indicate that, although he obviously singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group.
The Trial Chamber seemed to create an extremely high threshold for an individual committing genocide, because it is not satisfied even if the defendant was clearly driven to kill and did kill large numbers of a particular religious group. However, the Appeals Chamber held that the Trial Chamber had erred in terminating the trial on the genocide count, and that a reasonable trier of fact may have found Jelisić guilty of genocide on the evidence presented. It noted that occasional displays of randomness in the killings are not sufficient to negate the inference of intent evidenced by a relentless campaign to destroy the group. Notwithstanding this conclusion, the Appeals Chamber declined to remand the matter back to trial for a proper hearing on the genocide count, on the ground of public interest. Jelisić had pleaded guilty to crimes against humanity and war crimes for the same murders and was already sentenced to forty years' imprisonment, a probable life sentence. Judge Wald's partial dissent suggested that the decision may have reflected the view that convicting such a low level offender of genocide would diminish this "crime of crimes" and create a problematic precedent.
The Krstić appeal also explored the evidentiary threshold for the special intent of genocide, along with elaborating on the definition of aiding and abetting genocide. Major-General Krstić was charged with genocide for his part in the perpetration of the Srebrenica massacre, in which about seven thousand Bosnian Muslim men from the Srebrenica enclave were systematically separated from the rest of the population, transported to remote areas, and executed over the course of several days. The Appeals Chamber overturned the verdict and substituted a conviction of aiding and abetting genocide, an offence not taken from the genocide provisions of the Statute, but rather from the article providing individual criminal responsibility for persons participating in the commission of crimes under the Statute. The genocide conviction of Krstić, the chamber noted, rested on circumstantial evidence that could only demonstrate that the accused had knowledge of the killings and was aware of the intent of others to commit genocide. The Appeals Chamber held that this evidence could not be used to infer that Krstić possessed a genocidal intent, and thus he should not have been convicted as a principal perpetrator. Nonetheless, the Chamber held that his knowledge of the killings, and his allowing the use of personnel under his command, did meet the threshold of aiding and abetting genocide, a lesser offense.
The elements of genocide require that a national, ethnical, racial or religious group be targeted for destruction. The Trial Chamber in Krstić considered the definition of group, and found that what constitutes a group is a subjective and contextual determination, one criterion being the stigmatization of the group by the perpetrators. The Krstić trial judgement, supplemented by the Appeals Chamber, also considered the definition of part of a group in the requisite intention "to destroy in whole or in part." It held that genocide could be perpetrated against a highly localized part of a group, as exemplified by the Muslim population of Srebrenica, which formed part of the protected group of all Bosnian Muslims. On this question, the Chamber held,
the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area.
The Appeals Chamber affirmed that the "part" must be "substantial," as "[t]he aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, [thus] the part targeted must be significant enough to have an impact on the group as a whole." But beyond considerations of numeric importance, if a specific part of a group were essential to the survival of the group, the Chamber held that such a part could be found to be substantial, and thus meet the definition of part of a group. The Appeals Chamber noted that the population of the Bosnian Muslims of Srebrenica was crucial to their continued presence in the region, and indeed, their fate would be "emblematic of that of all Bosnian Muslims."
The case against Krstić also considered whether the killing of only the men of Srebrenica could be held to manifest an intention to destroy a part of the protected group, the Muslims of Bosnia. The Trial Chamber noted that the massacre of the men of Srebrenica was being perpetrated at the same time that the remainder of the Muslim population was being ethnically cleansed out of Srebrenica. It concluded that the community's physical survival was jeopardized by these atrocities and, therefore, these acts together could properly be held to constitute the intent to destroy part of group:
The Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society, an impact the Chamber has previously described in detail. The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.
The material element of genocide requires that one or more acts be committed which are enumerated in the definition, namely, killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group. On several occasions, the ICTY has considered whether ethnic cleansing alone—that is, the forcible expulsion of the members of a protected group—meets the material threshold of genocide. The appeal in the Krstić case confirmed that forcible transfer in and of itself does not constitute a genocidal act. However, it may be relied upon, with evidence of enumerated acts targeting the group, to infer a genocidal intent.
According to the findings of the ICTY, for a charge of genocide to be apt, the killing or causing of serious bodily or mental harm to members of a group must be intentional, but they need not be premeditated. The ICTY has also held that, with regard to causing bodily or mental harm, the harm need not be permanent and irremediable harm, but it must result in a "grave and long-term disadvantage to a person's ability to lead a normal and constructive life." Such acts could include cruel treatment, torture, rape, and deportation, or, for example, the agony suffered by individuals who survive mass executions.
From its modest beginnings, the ICTY has become an essential element of post-conflict peace-building in the former Yugoslavia. The link between prosecution of leaders responsible for incitement to ethnic hatred and violence, and the emergence of democratic multiethnic institutions that can secure a lasting peace has become increasingly apparent. Beyond abstract human rights considerations, international criminal justice has become an element of enlightened realpolitik. The initially haphazard ICTY precedent was an important catalyst for the resumption of efforts after the Nuremberg Judgement to establish an international criminal justice system. It prepared the path for the ICTR, the Special Court of Sierra Leone and other hybrid tribunals, and encouraged national courts to prosecute international crimes. Most significantly, it expedited and informed the deliberations leading to the adoption of the Rome Statute for the ICC in 1998. Thus, beyond the former Yugoslavia, the ICTY has introduced an accountability paradigm into the mainstream of international relations, challenged a hitherto entrenched culture of impunity, and helped alter the boundaries of power and legitimacy.
Akhavan, Payam (2001). "Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?" American Journal of International Law 95:7.
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