On January 27, 1945, during the offensive directed against Berlin, the Soviet Armed Forces unveiled for the first time before the world the horrors committed in Auschwitz concentration camp, Poland. The events that transpired from what they saw there became the symbol of the Holocaust, which caused the annihilation of 6 million Jews. The images of that tragic discovery were gathered by Alfred Hitchcock and grouped in “Memory of the Camps” (1984), a short 50-minute film produced by a London director on behalf of British military authorities.
On August 8, 1945, the governments of the United Kingdom, the United States, France, and the Soviet Union, met in London and agreed to judge and punish the major war criminals of the European Axis. With the London Agreement, the victorious powers of World War II sanctioned the creation of the Nuremberg International Military Tribunal that would manage the judgment and condemnation of the Nazi hierarchical machine. The crimes enumerated in Article 6 of the Charter of the International Military Tribunal, were divided into three categories: (a) Crimes against Peace; (b) War Crimes; (c) Crimes against Humanity.
The Nuremberg trials, although they represent a controversial topic among political scientists, have definitely had significant importance for the consolidation of the criminal law branch of international law and thus influenced the increase of its classification. In fact, they represented an important precedent for the construction of new international criminal tribunals, before the creation of the International Criminal Court (ICC). Among these, one of the most important is the International Criminal Tribunal for Former Yugoslavia (ICTY). The ICTY was the first war crimes court created by the United Nations (UN) and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals.
Structure and jurisdiction
In response to mass atrocities that that took place in Bosnia-Herzegovina and Croatia in the 90s, the UN established the ICTY. Reports depicting horrendous crimes, in which thousands of civilians were expelled from their homes and were being killed, wounded, tortured, and sexually abused in detention camps, caused outrage across the world and propelled the UN Security Council to action. The ICTY faced legal problems in two fundamental ways: the determination of the procedural rules, and the identification of the applicable body of rules.
With regards to the first issue, in 1994 the ICTY opted for the adoption of a mixed system with “Rules of Procedure and Evidence.” This system intersected elements of the Anglo-Saxon legal tradition (common law) and the continental system (civil law). As in the historical Nuremberg trials, the accusatory rite of common law was preferred under the procedural aspect in which the prosecution and defense are located on the same floor and argue the case before an impartial jury. During these hearings both sides present different forms of evidence including testimonies. The hybrid system adopted by the Hague Tribunal followed a series of steps. First the Court confirmed the appointment of three judges without the presence of jurors. Then the prosecutor leading the investigation prepared the indictment, afterwards submitted to the integrated Court. The Court was then presented with evidences to prove the claims made by both parties. One of the most controversial issues relates to the institution of plea bargain. Indeed, the Court was not obliged to impose the agreement struck by the parties. This created confusion among the accused, the judges, and the lawyers trained in the traditional civil law system.
With regards to the second issue, the Court was confronted to the problem of the lack of an “international criminal code.” By this term we mean a homogeneous body of disciplinary rules of international law applicable to individuals who committed heinous crimes. The only rules that were directly applicable by the Court were the few provisions contained in certain international conventions. As a result, the offenses were not clearly established, and the punishments were equally uncertain. The International Tribunal was set up in a very specific manner. It consisted of the three Trial Chambers and an Appellate Chamber. It had an Office of Prosecutor that was the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. It also had a Registry that served both the Chambers and the Prosecutor.
The ICTY had concurrent jurisdiction with national courts to prosecute individuals for serious violations of international humanitarian law committed since January 1, 1991, within the former Yugoslavian territory. However, the International Tribunal had supremacy over national courts. In fact, any time of the judgment, the International Tribunal implement itself any judgment. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since January 1, 1991; the International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.
Article 7 of the ICTY Statute enshrines the principle of individual criminal responsibility, and indicates the conduct falling within their jurisdiction as follows:
- A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
- The 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.
- The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility 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.
- The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.
This article raises the issue of command responsibility. It is divided into two forms of direct and indirect responsibility. For direct responsibility to be proved the individual needed to have a higher share of participation in the commission of the crime. This could occur through a direct conduct of commission consisting of planning, instigating, ordering, or committing the crime in and of itself.
In the sentence of Duško Tadić, the judges identified the legal basis for direct command responsibility in customary international law. They stated: “[…] the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question. […]” In order the indirect command responsibility, the ICTY Statute Article 7.3 presupposes: (1) the existence of a superior-subordinate relationship between the superior (the accused) and the perpetrator of the crime; (2) the accused knew or had reason to know that the crime was about to be or had been committed; and (3) the accused failed to take the necessary and reasonable measures to prevent the crime or punish its perpetrator.
In clear opposition to the rules consolidated in Nuremberg, this article punishes the conduct of the people who committed the crimina iuris gentium – performing a manifestly unlawful order of authority. The Statute of the Court does not recognize the superior order defense used by the accused to excuse the illegality of the offense committed.
From ICTY to the International Residual Mechanism for Criminal Tribunals
The ICTY, as an ad hoc tribunal, lacked a permanent nature. According to the Resolution 1503 (2003) adopted by the UN Security Council, the ICTY had to end their judicial proceedings at the end of 2010. When the UN Security Council adopted this resolution, the two courts still had a significant amount of cases to be examined and many of the accused of serious crimes were still at large. Despite considerable progress by the ICTY, at the end of 2010 there were 18 accused on trial and 16 on appeal.
On December 22, 2010, the UN Security Council adopted the Resolution 1966 (2010), establishing the International Residual Mechanism for Criminal Tribunals (IRMCT). The main task would be to conclude the remaining activities of the International Criminal Tribunals for Rwanda and for the former Yugoslavia. The UN Security Council determined that IRMCT would maintain the competency, rights, obligations and functions of the two courts. It was divided into two sections. The first section dedicated to the International criminal Tribunal for Rwanda (ICTR), which started its duties on July 1, 2012; the second, dedicated to the ICTY, which would start operations on July 1, 2013.
The Resolution 1966 (2013) envisages that the IRMCT “functions and size will diminish over time, with a small number of staff commensurate with its reduced functions.” The UN Security Council determined that IRMCT will continue to operate until it decides otherwise, but further provided that the progress of the work of the IRMCT will be reviewed in 2016 and every two years thereafter.” However, in order to ensure a smooth transition of the new “mechanism,” the UN Security Council postponed the deadline for the cessation of the work of ICTY to December 31, 2014. The complexity of the processes has led to further postponement in the deadline to allow the ICTY to conclude its work. The last two were meant to be before the end of 2015, and were later extended to 2017.
Today, it is possible to take stock of the work done by the ICTY during its twenty years of activity. From a strictly legal standpoint, the ICTY has helped the development of international criminal law through the interpretative work of international humanitarian law and human rights norms. Since its inception, the ICTY has indicted 161 individuals for war crimes, 125 of which have been completed. The ICTY judgments played an important role also in shaping the political structures of former Yugoslavia, causing a change in power structures. In this regard, it should be noted that the last ruling of ICTY (March 24, 2016) declared that former Bosnian Serb President Radovan Karadžić was responsible for the 1995 Srebrenica genocide, and nine counts of war crimes and crimes against humanity, including murder, terror and extermination. ICTY sentenced him to 40 years imprisonment.
The sentence against Karadžić has been awaited for a long time, especially by the associations of the Srebrenica victims’ relatives. The capture and judgment against Karadžić gave a measure of ICTY political impact in the relations between the European Union and the former Yugoslav states, and on the balance of power within the Balkans. With respect to the first point, it should be noted that the capture of Karadžić in 2008 by the Serbian authorities, and the subsequent extradition to the Hague, was seen by many experts as a necessary condition imposed by the EU to start negotiations that would led Serbia to submit its candidacy as new EU member state.
In relation to the direct incidence of ICTY in the balance of political power in the Balkans, the sentence of Karadžić is an emblem. The Tribunal determined that there were not enough elements to hold President Karadžić responsible for a genocidal plan executed since 1992 to the detriment of the Bosnian Muslim population of 12 municipalities in Bosnia-Herzegovina for the sole purpose of creating an ethnically homogeneous state through the change of structure population by force (Republika Srpska). Yet some authors believe that this charge, although not confirmed against Karadžić, represents an open condemnation of the ICTY judges to politics and the violent origin of Republika Srpska. In fact, the right-wing government of the Republika Srpska fears the accusation of being a state born from the ashes of genocide. Following this judgment and the discontent it caused, it may be reasonable to fear an upsurge of tensions between the different Bosnian ethnic groups. On the one hand, Bosnian Muslims are demanding greater justice for the crimes they were victim during the war. On the other hand, Bosnian Serbs claim the legitimacy of Republika Srpska, entrenched in ultra-nationalist positions.
Master’s degree in Law (LUISS “Guido Carli”)
 In 1993, the ICTY defined rape as a crime against humanity, and also defined rape, sexual slavery, and sexual violence as international crimes which constitute torture and genocide.
 Art. 11.1 of the ICTY Statute.
 Artt. 2-3-4-5 of the ICTY Statute.
 Tadić Trial Judgment, par. 692.
 The International Criminal Tribunal for Rwanda (ICTR) was established in November 8, 1994, by UN Security Council Resolution 955 in order to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring states between 1 January 1994 and 31 December 1994. The ICTR is located in Arusha, United Republic of Tanzania. In 2003, UN Security Council passed Resolutions 1503 affirming (ICTY) completion strategy and requested ICTR to formalize a completion strategy based on the ICTY model to that called for completion of all investigations by 2004, trials by 2008 and appeals by 2010. See: UN Security Council. Report on the Completion Strategy of the International Criminal Tribunal for Rwanda, 14 May 2009. www.un.org/ga/search/view_doc.asp?symbol=S/2009/247&Lang=E.
Calvetti, Gianmaria, and Tullio Scovazzi (2007). Il Tribunale per la ex-Jugoslavia: l’attività svolta e il suo prossimo scioglimento. Milano: Giuffrè Editore.
Cassese, Antonio (2006). Lineamenti di diritto internazionale penale. Voll. 1-2, Bologna: Il Mulino.
Cherif Bassiouni, Mahmoud (2008). International Criminal Law: International Enforcement. Vol. 3, Leiden: Martinus Nijhoff Publishers.
Del Vecchio, Angela (2009). I tribunali internazionali tra globalizzazioni e localismi. Bari: Cacucci.
Maugeri, Anna M. (2007). La responsabilità da comando nello statuto della Corte Penale Internazionale. Milano: Giuffrè Editore.
Provolo, Debora (2012). Esecuzione dell’ordine del superiore e responsabilità penale. Padova: CEDAM.
United Nations. Statute of International Criminal Tribunal for Former Yugoslavia. www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf