An important aspect of transitional justice is the ability to prosecute suspects of crimes such as genocide, war crimes, and crimes against humanity through international tribunals. Changes in the transitional justice landscape can be observed through the evolution of international criminal justice courts. The post-WWII Nuremberg Trial and Tokyo War Crime Trials served as the “first generation” transitional justice courts throughout 1945-1948. They were followed by the “second generation”: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). The “third-generation” saw the evolution of hybrid courts and tribunals.
This article focuses on the second generation: the sister ICTY and ICTR tribunals and the ICC. The main purpose of this article to describe how these tribunals came into existence and to note some of their main accomplishments and challenges. This is the first of a three-part series on judicial mechanisms in transitional justice. Check back later for parts two and three.
As the first international tribunal since the Nuremberg Trials, the ICTY holds a position of significance as a trailblazer for international jurisdiction. The ICTR was established in the Hague in 1993, after reports concerning mass atrocities, such as massacres, mass rape, torture and displacement committed throughout the region reached the UN. The disintegration of Yugoslavia had brought about widespread ethnic conflicts. Though no party was innocent, a majority of the crimes were committed by Bosnian-Serb forces, together with the Yugoslav army, in their attempt to wipe out Bosniaks (Bosnian Muslims) and Croats. In light of mass violence under a complicit government, the UN decided to create the ICTY to hold national leaders responsible for grave violations of international law committed in Yugoslavia after 1991 and to restore peace.
Throughout the ICTY’s 24-year run, many milestone decisions regarding genocide, war crimes, and crimes against humanity were established. For example, it was the first tribunal to prosecute and punish sexual violence as a crime against humanity, as it did in the case of Dusko Tadic. It successfully indicted high-level politicians and military personnel for some of the “worst wartime atrocities” since WWII. Former Bosnian-Serb commander, Ratko Mladic, was sentenced to life imprisonment and Bosnian-Serb politician, Radovan Karadzic, was prosecuted, amongst nearly 160 other indictees. Through victims’ testimonies, the ICTY gained legal expertise and a large amount of evidence that would be useful for future tribunals. In terms of the bigger picture, it led to a shift in thinking, in which people could now genuinely expect those guilty of war crimes to face judgement. For the success of future international tribunals, lessons learned from criticisms geared at the ICTY are just as important. Many expressed frustration at the length of the Tribunal, partly attributed to the reality that capturing of fugitives has taken decades. Another consequence of delays in procedure was that former Yugoslav president, Slobodan Milosevic, died before he could be formally judged, and was quietly acquitted ten years after his passing. Others were discontent because they believed that the ICTY represented victor’s justice, since 66% of all those charged were Serbs. The overall experience was mixed: it certainly did hold important individuals accountable, yet was unable to bring peace and reconciliation to the region. Revelations regarding the roles that several Western countries played in the unravelling of the “humanitarian nightmare” also complicate matters regarding complicity. As flawed as the ICTY was, it marked the beginning of a process affirming the rule of international law.