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 (October 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."
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