In depth

Central Articles

From Nuremburg to Rome: The importance of the International Criminal Court for the former Yugoslavia in the process of creating and consolidating International Criminal Justice

Héctor Olásolo Alonso
Professor of International Criminal Law and Director of the Legal Clinic on Armed Conflict, Human Rights and International Justice of the University of Utrecht; Lawyer at the International Criminal Court (2004-2010); Member of the Prosecutors' Offices at the International Criminal Tribunal for the former Yugoslavia (2002-2004); and Member of the Spanish Delegation on the Preparatory Commission of the International Criminal Court (1999-2002)
Hèctor Olásolo Alonso

Héctor
Olásolo

Almost sixty-five years ago, on 11 November 1946, the International Criminal Tribunal in Nuremburg handed over its verdict on the case against twenty-three of the political and economic leaders of the Nazi regime, who were accused of embarking on a war of aggression and systematically committing war crimes and crimes against humanity during that war. One year later, the International Military Tribunal for the Far East gave its verdict on the criminal liability of the main Japanese political and military leaders for the massive atrocities committed by the Japanese armed forces during the Second World War.

At that time - when the Universal Declaration of Human Rights, the Convention for the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions were being written - nobody would have imagined that the world would have to wait for almost fifty years for the international community to establish a new International Criminal Court with jurisdiction to investigate and judge the most serious crimes for the international community.

However, the advent of the Cold War completely frustrated the plans to create an International Criminal Court that were being prepared by the International Law Commission in 1949. Unfortunately, it was necessary to wait until the symbolic fall of the Berlin Wall in 1989 and the subsequent collapse of the Soviet Union before the voices that had been clamoring for an international criminal justice system for almost half a century were once again heard, after the Cold War was over.

It was in this context that the United Nations Security Council, in Resolution 827 of 25 May 1993, created the International Criminal Tribunal for the former Yugoslavia (hereinafter the "Tribunal for the former Yugoslavia") in order to investigate and judge the serious violations of human rights and international humanitarian law caused by the radicalism and intolerance that came to light in the late 1980s and early 1990s among several nationalist movements that emerged in the former Yugoslavia after the death of Tito in 1980.

As a result, international criminal justice was once again employed - albeit by a legal body with a temporary mandate and with a jurisdiction limited to the territory of the former Yugoslavia (hence its description as an "ad hoc" court) - to facilitate reconciliation between the various national and religious groups, who had lived together in peace and relative prosperity after the bloodshed they had previously experienced during the Second World War, but had returned to it in the early 1990s.

Whether the investigations and judgments of the Tribunal for the former Yugoslavia have succeeded in facilitating reconciliation between the various national and religious groups that inhabit the region is something for sociologists and political scientists to assess. Of course, this task has not been easy, as the Tribunal for the former Yugoslavia was created in the middle of the pandemonium of the conflict, and the individuals being investigated were often considered war heroes. Furthermore, its creators deprived it of the basic tools for making any type of reparation to victims apart from seeking the truth and punishing the leaders responsible for the atrocities committed. In addition, its work during its first ten years of existence, in terms of raising the profile of its activities among the inhabitants of former Yugoslavia, was very limited.

However, despite these limitations, it must be acknowledged that the Tribunal for the former Yugoslavia has played a unique role in the development of international criminal justice, constituting a link between the first efforts by the Tribunals of Nuremburg and Tokyo to construct a true international criminal justice system, and its consolidation with the approval of the Rome Statute of the International Criminal Court in 1998. This Statute enabled a permanent Court committed to universality, with jurisdiction over the most serious crimes against the international community - genocide, crimes against humanity, war crimes, and once it has been defined, the crime of aggression - to begin work on 1 July 2002.

The current situation would undoubtedly have been difficult to achieve without the creation of the Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in 1993 and 1994 respectively, based on the general principles contained in the rulings of the International Criminal Tribunals of Nuremburg and Tokyo, a jurisprudential body on the factors defining international crimes, and the types of perpetration and participation by political and military leaders in committing these crimes, to give just a few examples.

Likewise, the work of the Tribunal for the former Yugoslavia has shown that despite the initial difficulties in terms of legal cooperation and the protection of witnesses, if there is a will, the international community can find the necessary measures to encourage affected States to cooperate with international criminal justice in the arrest and transfer of accused individuals who have held political and military posts at the highest level. The arrest and transfer to the Tribunal for the former Yugoslavia of Slobodan Milosevic, Radovan Karadic, Moncilo Krajisnik, Bijbiana Plavic, Milan Milutinovic, Moncilo Pericic, Dragoljub Ojdanic, Ante Gotovina and Sefer Halilovic, to name just a few examples, are undoubtedly very important precedents considering that unlike the Second World War, there were no victors or vanquished in the former Yugoslavia, due to the Dayton Accord of 1995, which ended a conflict that had begun in the second half of 1991.

Although Ratko Mladic, ex-commander in chief of the Bosnian Serb armed forces and the presumed architect of the design and implementation of the extermination of 7,000 Bosnian Muslims after the takeover of the Srebrenica safe area has yet to face justice, the arrest and transfer of Slobodan Milosevic to the Tribunal for the former Yugoslavia in late 2000 significantly changed the perception that top-level political and military leaders can only be subject to international criminal justice after being subjected to a prior military defeat.

This change of perception undoubtedly played an important role in the subsequent arrest and transfer of Radovan Karadzic to the Tribunal for the former Yugoslavia, of Charles Taylor (ex-President of Liberia) to the Special Court for Sierra Leone, and of Jean Pierre Bemba (ex-Vice-president of the Democratic Republic of the Congo) to the International Criminal Court. The recent issue of an arrest warrant against Omar Al Bashir, the current President of Sudan, due to his presumed criminal liability as the architect of the crimes against humanity and war crimes committed by the Janjaweed militias and Sudanese armed forces is no less than another example that today, international criminal justice cannot be ignored, even by Heads of State in office, at the peak of their political and military power in a country with substantial energy resources.

Finally, even in areas in which the work of the Tribunal for the former Yugoslavia has shown its shortcomings, such as its lack of restorative justice initiatives and the limited impact of its public awareness and dissemination activities, its work has been very important in enabling the negotiators of the Rome Statute and the legal operators of the International Criminal Court to adopt the measures necessary to ensure the participation of victims in the criminal proceedings taking place at the Court, to establish a comprehensive system of reparations (including a reparation fund with donations from States, organizations and individuals so that reparation to the victims does not exclusively depend on assets confiscated from the guilty parties), and to prioritize the raising public awareness and dissemination of the Court's work in the regions where it carries out its investigations and trials.