The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have not only indicted, arrested, tried, and convicted numerous perpetrators of atrocities, they have also laid down landmark decisions, establishing multiple precedents for the worldwide pursuit of justice. The decisions include novel prosecutions in international tribunals of crimes such as genocide, rape, and enslavement. Groundbreaking rules were made to protect victims and witnesses who faced risks by coming forward to give testimony, and technology was employed to obscure their faces and to distort their voices. The Tribunals enacted extensive measures to balance the rights of the victims against the rights of the accused.

The ICTY

Established in 1993 by the United Nations Security Council acting under Chapter VII of the UN Charter, the ICTY is granted the right under its Statute to prosecute "grave breaches" of the 1949 Geneva Conventions (art. 2), violations of the laws or customs of war (art. 3), genocide (art. 4), and crimes against humanity (art. 5). The Tribunal has the authority to hold the accused accountable for individual criminal responsibility if they "planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime [within the court’s jurisdiction] (art. 7(1))." The Tribunal may also prosecute a commander or superior if a subordinate has committed a Statutory crime and that superior "knew or had reason to know that the subordinate was about to commit such acts or had done so and…failed to…prevent such acts or to punish the perpetrators thereof" (art. 7(3)).

Individual and joint trials have been held against civilian and military persons from each of the three main ethnic groups involved in the Balkan conflicts. Persons indicted by the Tribunal range from ordinary citizens who are alleged to have committed crimes with a nexus to the conflict, to the highest level political and military officials. Sentences have ranged from 7–45 years imprisonment. To date, the ICTY has rendered judgment in eleven trials against 21 accused; some of these cases are currently on appeal. The cases summarized below represent some of the most dramatic advances in terms of international law.

Prosecutor v. Tadic

The first trial held by the Yugoslav Tribunal settled many of the jurisdictional issues and its decisions also delineated generally the scope of most of the crimes within the Tribunal’s jurisdiction. The accused, Dusan Tadic, was a Bosnian Serb who had free access to Omarska, Keraterm and Trnopolje camps, facilities notorious for mistreating Bosnian Muslims and Croats detained in the camps. Accused of every core crime except genocide, the charges afforded the first opportunity for the Tribunal to determine such things as the nature of the armed conflict, whether the character of the conflict as international, internal, or mixed was relevant to the applicability of grave breach charges, and the scope of crimes under the terms of the Statute vis-à-vis violations of the laws or customs of war and crimes against humanity.

At this early stage in the ICTY proceedings, it was imperative to resolve the question of defining the conflict as "internal" or "international" in character. This was essential because that definition would determine which laws would apply in the courtroom. In its Decision on the Interlocutory Appeal on Jurisdiction (Oct. 2, 1995), the Appeals Chamber defined an armed conflict as existing "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." In this context, the Tribunal clearly endorsed greater overlap between laws applying to international and internal armed conflict.

Considering violations of Article 3 of the Statute, the Appeals Chamber determined that four conditions that must be fulfilled before a violation of the laws or customs of war incurs individual criminal responsibility. These conditions apply regardless of whether the violation has occurred within the context of an international or internal armed conflict: "(i) The violation must constitute an infringement of a rule of international humanitarian law. (ii) The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met. (iii) The violation must be "serious"… (iv) The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule."

Common Article 3 of the 1949 Geneva Conventions, which is encompassed by Article 3 of the Statute, was intended to apply specifically to civil wars. However, the Appeals Chamber found that the conduct regulated by Common Article 3 [of the Geneva Conventions] was also part of customary international law, and thus applicable to both internal and international armed conflicts. This holding – which extends the reach of the protections afforded by the Geneva Conventions – narrows significantly the historical practice of treating conduct differently depending on whether a war is regarded as internal or international.

The Chamber also noted that under customary international law, crimes against humanity can be committed in wartime or peacetime. Therefore, unless the governing statute dictates otherwise, to prosecute crimes against humanity it is not necessary to establish that there was also an armed conflict.

Once the jurisdictional matters were resolved, the trial on the merits proceeded. Here again determinations as to whether international laws would be applicable came to the fore. In rendering its Judgment (May 7, 1997), a majority of the Trial Chamber determined that grave breaches [of the Geneva Conventions] were not considered part of customary international law at the time of their commission. Essentially, the majority found that grave breaches were limited to conflicts having an international character, and the prosecution had not proved that the crimes in question were committed during an international armed conflict. Thus, all charges brought under Article 2 of the Statute were dismissed. Subsequently Tadic was found guilty on 9 of the 34 counts, and guilty in part on two additional counts, for crimes against humanity and violations of the laws or customs of war. Several issues were appealed by both the defense and prosecution.

The Appeals Chamber Judgment (July 15, 1999) disagreed with the Trial Chamber’s reasoning on international conflict, determining that an armed conflict is international in character not only if it takes places between two or more states; an internal armed conflict may also become international or exist alongside an internal armed conflict if another state intervenes through its troops or if some participants in the internal armed conflict act on behalf of another state. The Appeals Chamber went on to delineate the legal criteria for establishing when an internal armed conflict may become international. In applying the law to the facts, it found that at the time and place of the events charged in the indictment, the conflict did indeed have an international character, and thus the grave breach charges had been inappropriately dismissed by the Trial Chamber. (It should be emphasized that the Chamber was not stating that the entire war in the Balkans was an international conflict — it was merely stating that during the particular charges relevant to Tadic, the conflict could be regarded as international.)

The Appeals Chamber made yet another groundbreaking interpretation of the Geneva Conventions. Article 4 protects civilians who find themselves "in the hands of a Party to the conflict or Occupying Power of which they are not nationals". The Geneva Conventions were codified to regulate wars between nations and this is how they have been used traditionally. But according to the ICTY Appeals Chamber, in certain circumstances Article 4 may encompass victims possessing the same nationality as the perpetrators of the crimes. In other words, conflict can be so ferocious that it rends the bonds of nationality. Consequently, Bosnian Muslim victims were deemed to be persons "protected" by the 1949 Geneva Conventions even though the crimes were committed by a Bosnian Serb; therefore the grave breach protections afforded by the conventions could be enforced.

The Appeals Chamber Judgment also stressed that under customary law regarding crimes against humanity, persecution can be committed for purely personal motives. It further emphasized that to prosecute crimes against humanity, it is not necessary to prove a discriminatory intent – that is, persecution for racial, ethnic, or religious reasons – unless the controlling statute makes this intent a requirement.

Prosecutor v. Erdemovic

This case focussed particularly on criteria for accepting a guilty plea and the legitimacy of claiming duress as a defense to accusations of war crimes or crimes against humanity.

The defendant, Drazen Erdemovic, a member of the Bosnian Serb Army, was accused of having participated in the execution of thousands of unarmed Bosnian Muslim men shortly after his unit took over the UN "safe haven" of Srebrenica. He was charged with one count of murder as either a crime against humanity or a violation of the laws or customs of war. Erdemovic pleaded guilty to murder as a crime against humanity, but claimed in his defense that he had only killed under duress. He stated that if he had failed to execute the Bosnian Muslims as ordered, he not only could not have prevented the executions, but also he would have been killed as well. In the initial Trial Chamber Judgement (Nov. 29, 1996), his guilty plea was accepted and Erdemovic was sentenced to 10 years’ imprisonment.

Erdemovic appealed, arguing that his guilty plea had not been adequately informed –that he had not understood the difference in pleading guilty to a crime against humanity versus pleading guilty to a war crime. He also asserted that his duress was not taken into account either as a defense or in mitigation of the sentence. In its Judgment (Oct. 7, 1997), a majority of the Appeals Chamber agreed that the guilty plea had not been informed, and it remanded the case back down to a new Trial Chamber to allow Erdemovic the opportunity to replead and to determine the appropriate sentence. Establishing criteria for accepting a guilty plea, it was held that 3 pre-conditions must be satisfied: the plea must be voluntary, informed, and unequivocal.

The Appeals Chamber also held, by a majority, that "duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings." The Joint Separate Opinion of Judges McDonald and Vohrah emphasized that despite there being no corroboration of the duress, the Trial Chamber could have taken the duress into account in mitigation of the sentence.

Erdemovic subsequently pleaded guilty to murder as a war crime before a different Trial Chamber. Its Judgment and Sentence (March 5, 1998) took into account both the nature of the crime and the duress, and imposed a sentence of five years’ imprisonment. The majority of this Trial Chamber held that crimes against humanity are inherently more serious than war crimes. (This particular ruling, finding a hierarchy of crimes, has been rejected by some Chambers of the Tribunals, and the issue remains unsettled.)

Prosecutor v. Delalic and Others ("Celebici")

This was the first trial in the Tribunal that accused a defendant of command responsibility. In this case, four Bosnian Muslims and Croats who had held various positions of authority in Celebici prison camp, a detention facility with a reputation for atrocities committed against Bosnian Serbs detained therein, were charged with a variety of war crimes. One was acquitted of all charges, and the other three were convicted for either committing the crimes themselves, or for responsibility as superiors for crimes committed by their subordinates.

The Trial Chamber concluded that a superior, whether military or civilian, may be held criminally liable for acts of subordinates on the basis of a de facto or de jure position of authority. In reaching its determination, the Trial Chamber Judgment (Nov. 16, 1998) stated that the superior must "have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offenses." The Trial Chamber found that a superior may only incur criminal liability where an accused had either actual knowledge that his subordinates were committing or about to commit a crime (which could be established through direct or circumstantial evidence), or "where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation".

The Trial Chamber stressed that a superior must not remain "wilfully blind" to the acts of subordinates and cannot ignore information that indicates his subordinates may be engaged in criminal activity. The Trial Chamber concluded that a superior may be held criminally responsible if "some specific information was in fact available" which would put him or her on notice of offences committed by subordinates. The information does not need to be conclusive; if the information indicated additional information was necessary to ascertain whether crimes had been or were about to be committed by subordinates, this would be sufficient to require the superior to investigate.

The Appeals Chamber Judgment (Feb. 20, 2001) agreed with the Trial Chamber’s assessment of command responsibility. In addition, it considered whether it was appropriate to convict three of the defendants under multiple articles of the Statute for crimes committed against the same people on the basis of the same acts (for example, for murder as a crime against humanity (art 5(a)) and wilful killing as a grave breach (art. 2(a)). The Appeals Chamber held that "multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other." As an example, torture can be both a crime against humanity (part of widespread or systematic attack against any civilian population), and a "grave breach" of the Geneva Conventions; however, an individual convicted under both statutes will serve concurrent, not consecutive, sentences.

Prosecutor v. Furundzija

This trial determined the elements of rape under international law. The case centered on a local commander of a special unit of the Bosnian Croat military police who was charged under Article 3 of the Statute with torture and "outrages upon personal dignity" for allegedly verbally interrogating a woman while a colleague repeatedly raped her. After an exhaustive survey of domestic laws and customary laws and norms, the Trial Chamber issued its Judgment (Dec. 10, 1998), pronouncing the elements of rape in international law to be:

i. the sexual penetration, however slight:

1. of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
2. of the mouth of the victim by the penis of the perpetrator;

ii. by coercion or force or threat of force against the victim or a third person.

The elements thus encompass vaginal rape, sodomy, and fellatio, and include rape of males. It is also significant that Furundzija had not physically raped the victim himself. Holding that the woman was tortured by means of rape, Furundzija was found guilty as a co-perpetrator of torture and an aider and abettor of rape because his presence, words, and omissions were found to have facilitated the sexual violence. The verdict was upheld on appeal (July 21, 2000).

Prosecutor v. Kunarac and others

This was the first international trial hearing evidence of enslavement as a crime against humanity. Three Bosnian Serb paramilitary commanders or sub-commanders were charged with various forms of sexual violence committed against Bosnian Muslim women and girls in the town of Foca during the conflict. Two were charged and convicted of rape and enslavement as crimes against humanity for conduct essentially amounting to sexual slavery. In its Judgment (Feb. 22, 2001), the Trial Chamber held that "the actus reus of [enslavement] is the exercise of any or all of the powers attaching to the right of ownership over a person. The mens rea of the violation consists in the intentional exercise of such powers." The Trial Chamber then gave examples of a number of factors–such as the duration of the captivity and the amount of control–that could be considered in determining whether enslavement was committed.