Fall of Former Yugoslavia and the Creation Of ICTY

For most of the 20th century, there existed a country – Yugoslavia – in the Eastern part of Europe. It was created after the amalgamation of the Kingdom of Serbia, Kingdom of Montenegro, and the territories of the Austria-Hungarian Empire in 1929. Yugoslavia was originally called the Kingdom of Serbs, Croats, and Slovenes.

In the late 1930s, a part of this territory was coerced by Nazi Germany and Fascist Italy into pushing for greater autonomy. The country was eventually occupied by these foreign forces who employed puppet governments leading to the end of the empire. In the year 1945, Yugoslavia came to be known as the Socialist Federation Republic of Yugoslavia (SFRY) under the leadership of Josip Broz Tito.

The nation-state of Yugoslavia became a non-aligned federation based on ‘democratic centralism’ of six states: Croatia, Slovenia, Bosnia, Herzegovina, Serbia, Montenegro, and Macedonia.

One of the six republics, Serbia had two autonomous regions, Vojvodina in the north and Kosovo and Metohija in the south. The region’s larger size with respect to the other republics was considered a threat to Yugoslav unity.[1]

Despite being a one-party state with a president for a lifetime, Yugoslavia maintained brotherhood and unity and tried suppressing tensions amongst various ethnic groups. However, after the death of Tito, the presidency was decentralised. This led to a series of communal violence amongst the 6 states which were intractable and claimed the lives of many.

Situation of Minorities

Yugoslavia was an amalgamation of various ethnic groups and religions, with Orthodox Christianity, Catholicism, and Islam being the primary religious groups. Article 1 of the SFRY Constitution described the state as “having the form of a state community of voluntarily united nations and their Socialist Republics, and of the Socialist Autonomous provinces of Vojvodina, and Kosovo”.[2]

Amongst the republics of Yugoslavia, the most diverse was Bosnia and Herzegovina. It consisted of Croats, Serbs, and Bosniak Muslims.

The varied reasons for the country’s breakup ranged from the cultural and religious divisions between the ethnic groups making up the nation to the memories of WWII atrocities committed by all sides, to centrifugal nationalist forces.[3] The difference in religious opinions also played as a catalyst in the breakup of Yugoslavia.

There were widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of “ethnic cleansing”, including the acquisition and the holding of territory.[4]

People of all walks of life – farmers, doctors, housewives, local politicians, mechanics, students, school children, and many others- were victims of these heinous crimes. Many of them were victims simply because they and their attackers came from a different ethnicity.[5]

Such heinous practices constituted a deliberate weapon of war in fulfilling the policy of ethnic cleansing carried out by Serbian forces in the Republic of Bosnia and Herzegovina.[6] Since there was no end to these horrifying crimes, the need of the hour compelled the states to take action.

Establishment and Jurisdiction of ICTY

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established on May 25, 1993, in The Hague, Netherlands by the UN Security Council. It was the first international tribunal with jurisdiction extending over war crimes that have been created since the Nuremberg and Tokyo Tribunals.[7] It was an ad-hoc tribunal established by the Security Council invoking its power under Article VII of Charter of the United Nations. Such a step was taken to bring back peace and security in the region and punish those responsible.

The Tribunal had the power to prosecute persons responsible for serious violations of International Humanitarian Law committed in the territory of the former Yugoslavia since 1991.[8]

In accordance with its Statute, the ICTY had jurisdiction over the territory of the former Yugoslavia from 1991 onwards. It had jurisdiction over individual persons and not organisations, political parties, army units, administrative entities, or other legal subjects.

Articles 2 to 5 of the ICTY Statute encompasses jurisdiction over – first, grave breaches of the Geneva Conventions of 1949; second, laws or customs of war; third, genocide; and crimes against humanity.

The ICTY and national courts have concurrent jurisdiction over serious violations of International Humanitarian Law committed in the former Yugoslavia. However, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia.[9]

The specific mandate of the ICTY was to fulfil a fourfold mission: (1) to bring justice to persons allegedly responsible for violations of international humanitarian law; (2) to render justice to the victims; (3) to deter further crimes, and; (4) to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia.[10]

At present, the ICTY has charged over 160 perpetrators and aims to deter future crimes and render justice to thousands of victims and their families, thereby contributing to a wave of lasting peace in the former Yugoslavia. It is often mentioned that the creation of ICTY was a direct reaction towards the feeling of guilt to protect Yugoslavia by the international community

Almost 14 years after its establishment, ICTY has moved towards a Completion Strategy and formed the International Residual Mechanism for Criminal Tribunal. It was initially created by United Nations Security Council on 22nd December as a “small, temporary and efficient structure”. Today, it is now a stand-alone institution and has adopted the residual matters of ICTY.

[1] Milica Uvalić, The Rise and Fall of Yugoslavia, Doc Research Institute, available at: https://doc-research.org/2018/03/rise-fall-market-socialism-yugoslavia/

[2] The Constitution of The Socialist Federal Republic of Yugoslavia, 1974, available at: https://www.worldstatesmen.org/Yugoslavia-Constitution1974.pdf

[3] The Breakup of Yugoslavia, The Office of Historian, available at: https://history.state.gov/milestones/1989-1992/breakup-yugoslavia

[4] Security Council Resolution 827, 25 May 1993, available at: https://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf

[5] Voice of Victims, United Nations International Criminal Tribunal for the Former Yugoslavia, available at: https://www.icty.org/en/features/voice-of-the-victims

[6] UN General Assembly, rape, and abuse of women in the areas of armed conflicts in the former Yugoslavia: resolution / adopted by the General Assembly, 23 February 1996, A/RES/50/192, available at: https://www.refworld.org/docid/3b00f32310.html

[7] Bernard D. Beltzer, “War Crimes”: The Nuremberg Trial and the Tribunal for the Former Yugoslavia, 30 Val.

U. L. Rev. 895 (1996), available at: https://scholar.valpo.edu/vulr/vol30/iss3/3

[8] Statute of the International Criminal Tribunal for the Former Yugoslavia, 1991, available at: https://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf

[9] Mandates and Crimes under ICTY jurisdiction, United Nations International Tribunal for the Former Yugoslavia, available at: https://www.icty.org/en/about/tribunal/mandate-and-crimes-under-icty-jurisdiction

[10] UN Security Council, Security Council resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)], 25 May 1993, S/RES/827 (1993), available at: https://www.refworld.org/docid/3b00f21b1c.html

Divya Gupta from Amity Law School, Delhi

You can find her here

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