|International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda
From 1992 onwards the disintegration of the former Socialist Republic of Yugoslavia led to a civil war between the Federal Republic of Yugoslavia and its former entities Slovenia, Croatia and Bosnia & Herzegovina. In the course of 4 years of fighting (mainly in Bosnia & Herzegovina) massive human rights violations occurred. The press referred to these human rights violations imprecisely as « ethnic cleansing ». Hidden behind this more political term are such serious human rights abuses as torture, rape, murder, persecution, war crimes and, in a few instances such as in Srebrenica, genocide.
In October 1992 the UN Secretary General Boutros Boutros Ghali, authorised by a Security Council Resolution, sent a five person Expert group to the former Yugoslavia to investigate crimes against international humanitarian law. In February 1993 this Expert Commission recommended in an intermediate report the creation of an international criminal tribunal. Independently, a CSCE advisory opinion, also recommended the creation of a tribunal.
On February 22, 1993, the Security Council adopted the resolution 808. It was decided to create an international criminal tribunal and the Secretary General was tasked to make proposals in this regard. The Secretary General responded that such a Tribunal should be created on the basis of Chapter VII of the UN Charter.
The establishment of the ICTY by way of a Security Council Resolution only, had the following advantages: the Tribunal could be expeditiously established and its Statute was binding to all UN-member States.
With resolution 827 the Security Council accepted the report of the Secretary General and adopted the Statute of the ICTY. Like the IMT in Nuremberg, also this Tribunal had a vertical relationship to States.
This relationship is clearly reflected in its Article 29 (1):
"States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law."
The ICTY has temporal jurisdiction for all crimes committed since 1st January 1991. Its territorial jurisdiction is limited to the territory of the former Yugoslavia. The Tribunal has jurisdiction over war crimes, crimes against humanity and genocide. Like at the IMT the personal jurisdiction extends to all natural persons, including politicians in the highest echelons of power. The function as a Head of State or member of a government does not exclude criminal liability nor does it constitute a mitigating circumstance. Insofar the ICTY Statute goes further than the approach of the IMT. On the contrary, the fact that an official in the highest echelons of power abused the trust of his subordinates (or the people of his or her State) while committing crimes constitutes aggravating factor with regard to the determination of his sentence.
The ICTY and national court have generally concurrent competencies. However if the ICTY is dealing with a case then he exercises primary jurisdiction according to art. 9 ICTY Statute. Due to financial and staffing constraints Carla Del Ponte, the present Chief Prosecutor of the ICTY, is limited to prosecute the main perpetrators of the heinous crimes committed in the former Yugoslavia. Since the Tribunal is shutting down in a few years, a special procedure has been incorporated into its Rules which allows even for a transfer of cases of mid-level perpetrators to a national court in the former Yugoslavia according to Rule 11 bis:
"Referral of the Indictment to Another Court
(A) If an indictment has been confirmed, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a Trial Chamber for the purpose of referring a case to the authorities of a State:
(i) in whose territory the crime was committed;
(ii) or in which the accused was arrested,
so that those authorities should forthwith refer the case to the appropriate court for trial within that State."
On 31-December-2003 the ICTY has completed 35 cases. 91 accused have appeared in proceeding before the Tribunal. Alltogether 46 accused have been tried. Since the ICTY procedure contains an Appeal stage, at this moment 25 persons have received a final sentence.
|International Criminal Tribunals for Rwanda (ICTR)
Recognizing that serious violations of humanitarian law were committed in Rwanda, and acting under Chapter VII of the United Nations Charter, the Security Council created the International Criminal Tribunal for Rwanda (ICTR) by resolution 955 of 8 November 1994. The purpose of this measure is to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region. By resolution 977 of 22 February 1995, the Security Council decided that the seat of the Tribunal would be located in Arusha, United Republic of Tanzania. The International Criminal Tribunal for Rwanda was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. It may also deal with the prosecution of Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighbouring States during the same period.
Unlike the ICTY, who has rendered only one conviction of genocide until December 2003, the ICTR is the Tribunal for genocide per se. There is no judgement of the ICTR which is not dealing with genocide. The ICTR Statute also lists genocide as the first crime to be adjudicated by the Tribunal.
On 31-December-2003 the ICTR holds 55 detainees in his detention facility. The detainees include several former senior cabinet ministers in the Interim Government of Rwanda of 1994, former military commanders, political leaders, journalists and senior businessmen. Of the ten detainees who have already been convicted by the Trial Chambers of the Tribunal six are serving sentences in Mali and three are still held in Arusha pending outcome of their appeals, but are kept apart from the other detainees to whom the presumption of innocence applies. Five of the convicts, including Jean Kambanda, former Prime Minister of Rwanda, have been sentenced to imprisonment for life.