International Criminal Tribunal for the Former Yougoslavia

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FACULTY OF LAW
ELTE Eötvös Loránd University

Aleš Mesarič

International Criminal Tribunal for the former Yougoslavia

Essay
Professor: dr. habil. Péter Hack
Transitional justice
Spring 2013

1. Introduction
After president deathof president Tito, the last country which linked several South Slavic and other groups of peoples started falling apart. On 25 June 1991, Slovenia and Croatia became the first republics to declare independence from Yugoslavia. The armed conflict in Sloveni was over after teen days, but after that bloody war broke out in Croatia (in the autum of 1991). Between 29 February and 1 March 1992 the government of Bosnia and Herzegovina held a national referendum on Bosnian independence from Yugoslavia. That referendum was in turn declared contrary to the BiH and Federal constitution by the federal Constitution court in Belgrade and the newly established Bosnian Serb government. The Bosnian Serbs largely boycotted the referendum. The Federal court in Belgrade did not decide on the matter of the referendum of the Bosnian Serbs. The turnout was somewhere between 64–67% and 98% of the voters voted for independence. It was not clear what the two-thirds majority requirement actually meant and whether it was satisfied. The republic's government declared its independence on 5 April, and the Serbs immediately declared the independence of Republika Srpska. The war in Bosnia followed shortly thereafter. The war in Bosnia and Herzegovina between 1991 and 1995 represents both an international armed conflict between Bosnia and Herzegovina, the Federal Republic of Yugoslavia (FRY) and Croatia, as well as armed conflict of non-international character between Bosniaks, Bosnian Croats and Serbs. In Tadić case, the International Criminal Tribunal for the former Yougoslavia (ICTY) affirmed that a non-international conflict exist when there is: »protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.« Thus, in the view of the ICTY, for there to be an non-international armed conflict: non-state armed groups must carry out protracted hostilities and these groups must be organised. Two key treaty provisions set tresholds for identifying the law applicabe to armed conflicts of a non-international character. These are: Common Article 3 to the 1949 Geneva Convention and Article 1 of 1977 Additional Protocol II to the Geneva Conventions. The term Bosniak has established itself in time of war, in order to distinguish between Muslims (Bosniaks), Roman Catholics (Croats) and Orthodox (Serbs). The conflicts included widespread attacks against civilians, population expulsions, systematic rape and the use of concentration camps. Most of the massacres occurred in BiH, Croatia and Kosovo. About 140,000 people were killed in the region during the conflicts, and almost 4 million others were displaced. Due to the nature and extent of the crimes, it was understood that without a mechanism for accountability for war crimes, lasting peace and reconciliation would not be possible. It was also impossible to count on countries, to deal with finding the justice. All this facts were the background for the establishment of International Criminal Triunal for the former Yugoslavia.

2. International Criminal Tribunal for the former Yugoslavia International Criminal Tribunal for the former Yugoslavia (ICTY), is an United Nations court dealing with war crimes committed during the armed conflict in the Balkans in the 90th years. It was founded in May 1993 by Security Council resolution 827 (1993), in accordance with VII. Chapter of the United Nations Charter in response to the atrocities that took place in Bosnia and Herzegovina and Croatia. The ICTY was the first war crimes court created by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. The International Tribunal shall have the power to prosecute persons responsible for...
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