Hydrolight

The International Criminal Tribunal for former Yugoslavia was establishedin 1993. Nearly fifty years passed between the Nuremberg and Tokyo trials and thenext

494Ibid.

495 For a comprehensive reading on the works and contributions of the International Criminal tribunals towards evolving international standards of conduct of states and individuals, see generally E A Oji, op cit, pp.157-199.

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formal international prosecution of war crimes.⁴⁹⁶ In May 1993, in an attemptto prevent further acts of “ethnic cleansing” in the conflict between states of theformer Yugoslavia and to restore peace and security to the Balkan Region, theUnited Nation Security Council established the International Criminal Tribunal forthe Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territory of Former Yugoslavia since 1991,otherwise termedInternational Criminal Tribunal for former Yugoslavia (ICTY).

The ICTY was internationalin composition and neither sat in the country where the covered conflict occurred;instead it was located in the Hague. The Tribunal had governing statute and anappellate chamber. Although the Nuremberg and Tokyo tribunals wereempowered to impose capital punishment, the ICTY could impose only terms ofimprisonment. However, no centralized international prison system wasestablished to house persons convicted of war crimes before the tribunal.

The ICTYwas given jurisdiction over four categories of crimes:⁴⁹⁷ 1. grave breaches of the Geneva conventions,

2. violations of the laws or customs of war, 3. genocide, and

4. crimes against humanity.

In the tribunal, rape, murder, torture, deportation andenslavement were subject to prosecution. The tribunal was among the firstinternational bodies to recognize sexual violence as a war crime.

Like the statutes of the Nuremberg and Tokyo Tribunals, the ICTY statutesdid not consider the official position of an individual including his position as headof state, to be a sufficient basis for avoiding or evading criminal culpability.

Accordingly, in 1999 the ICTY indicted Slobodan Milosevic, the Serbian President (1989-1997) and Yugoslav (1997-2000), for war crimes, and in 2001 he wasarrested and extradited to The Hague. Likewise, military and civilian leaders

496 R Mulgrew, Towards the Development of the International Penal System (Cambridge: Cambridge University Press, 2013) pp. 335-340.

497 International Criminal Court. Chambers. Web. 10 November 2012.

http://www.icccpi.int/EN_Menus/ICC/Structure%20of%20the%20Court/Chambers/Pages/chambers.aspx Accessed on 16 August 2015.

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whoknew or should have known that their subordinates were committing war crimeswere subject to prosecution under the doctrine of command or superiorresponsibility. Finally, individuals who committed war crimes pursuant togovernment or military orders were not thereby relieved of criminal liability,though the existence of the order could be used as mitigating factor. Thus, the rulesadopted for the Nuremberg and Tokyo trials continued to influence later efforts tobring suspected war criminals to justice. In essence, individual criminal responsibility for gross human rights violations and commission of atrocities was established by the work and decision of the ICTY which further indicated the changing behavior of the international community towards intervention in the domestic affairs of a sovereign state hitherto strictly precluded.

The establishment of ICTY brought about extensive investigations and prosecution of wartime sexual violence culminating in indictments and convictions. In Prosecutor v Dusko Tadic⁴⁹⁸, one of the detainees in the camps was compelled by combatants which included Dusko Tadic to bite off the tentacles of another detainee.

Tadic was convicted by the trial chamber in May 1997 of cruel treatment and inhuman acts considered to be crime against humanity for the role he played in this incident. Upon appeal, Tadic was further convicted for grave breaches of the 1949 Geneva Conventions inhuman treatment and willfully causing great suffering of serious injury to the body or health. This case illustrates the first international war crimes trial since Nuremberg and Tokyo involving charges of sexual violence. Tadic was subsequently sentenced to 20years imprisonment.

Similarly in Prosecutor v Drugo Ijub Kunarac & Ors⁴⁹⁹ the three accused Bosnian Serb army officers, Drugoljub Kunarac, Zoran Vukovic and Radomir Kovac were charged with sexual violence consisting of organizing and maintaining the system of infamous rape camps in the eastern Bosnian town of Foca. They were all convicted by the trial chamber of rape as a crime against humanity. Upon appeal, the Appeals chambers upheld the conviction of the three accused persons and sentenced Kunarac, Kovac and Vukovic to 28, 20 and 12 years imprisonment.

498Case No. IT.94-1-AR72, Judgement of the Appeals Chamber, 15 July 1999.

499Case No. IT-96-23 & OT-96-23/1-A. Judgement of the Appeals Chamber, 12 June 2002. This was the first such conviction since ICTY was established, sequel to the landmark precedent established by the Judgment of the ICTR in Prosecutor v Jean-Paul Akayeso, Case No. ICTR-96-4-A, Judgement of the Appeals Chamber, 1 July 2001.

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The decision of the ICTY in Prosecutor v Zdravko Mucic & Ors⁵⁰⁰ established a significant milestone in international justice system wherein it recognized rape as a category of torture consisting of both a grave breach of the Geneva Conventions and a breach of the laws and customs of war. In that case, where three out of the four accused persons were charged and convicted with sexual violence against Bosnian Serb civilians kept in prison custody, the trial chamber declared that rape of any person is a despicable act which strikes at the very core of human dignity and physical integrity. The Appeal chamber of the ICTY upheld the conviction of three accused persons and sentenced Zdrauko Mucic to 9, Esad Landzo to 15 and Hazim Delic to 18 years imprisonment respectively.