Exploring the Enduring Impact of ICTY and ICTR on International Criminal Law In this SlideShare presentation, delve into a comprehensive examination of the enduring legacies left by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the realm of international criminal law. Gain insights into their pivotal contributions, landmark cases, and their role in shaping the future of global justice

1. Ad hoc Tribunals in International
Criminal Law
Dr. Masoud Zamani

2. Why Ad Hoc Tribunals
Matter?
The anarchic nature of
international law leaves much to
the development of law through
adjudicating cases.
In the absence of treaty law and
customary international law,
tribunals take it upon themselves
to clarify what the law is and their
decisions become a basis for
policy-makers, other international
and domestic tribunals.

3. Ad hoc Tribunals and
Criminal Law
Elements of Crime: Ad hoc tribunals
played a major role in developing
different dimensions of international
criminal law such as elements of crime
Actus Reus: the physical element of
crime
Mens Rea: the mental element of crime
(intent)

4. ICTR
ICTR was established pursuant to SC
Res. 955
ICTR was the first international tribunal
adjudicating the 1948 Convention on the
Prevention and Punishment of the Crime
of Genocide.

5. Article II of the Genocide
Convention
Article II In the present Convention,
genocide means any of the following acts
committed with intent to destroy, in whole
or in part, a national, ethnical, racial or
religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in
part;
(d) Imposing measures intended to
prevent births within the group; (e)
Forcibly transferring children of the group
to another group.

6. Akayesu
The first indictment for the crime of
genocide ever.
Can systematic rape of the target
population be considered as
genocide?
The first case in international law
where sexual violence was
considered as the actus reus of
genocide.
What is rape: a sexual invasion
under coercive circumstances

7. ICTY: Resolution 827
The SC adopted the ICTY’s statute in Res.
827(1993)
Goals: 1. Take effective measures to bring to
justice to persons responsible for crimes as
defined in the Court’s statute 2. Contributing to
the restoration and maintenance of peace.
The Council asserted that the ICTY would
contribute, rather than single-handedly create,
reconciliation in former Yugoslavia.

8. ICTY’s Temporal
Jurisdiction
The open-ended nature of the
temporal jurisdiction of the ICTY: 1.
The Tribunal has jurisdiction over
the later conflicts over the later
conflicts in Kosovo and the Former
Yugoslav Republic of Macedonia
The ICTY has primacy over
national courts.

9. Milestones in the Practice
of ICTY
The first breakthrough occurred in April
1995, when Germany deferred its own
proceedings against a (low-ranking)
Bosnian Serb accused of various
international crimes, Dusko Tadic and
transferred him to the ICTY for trial.
Tadic’s Jurisdictional Challenge: 1. The
Security Council had no authority to set
up a criminal court 2. the ICTY’s primacy
over national courts was unlawful 3. The
Tribunal had no jurisdiction over the
crimes he was alleged to have
committed.
Tadic’s substantive challenge: the
definition of war crimes in international
law does not extend to internal armed
conflicts.

10. Tadic’s Challenge,
Security Council and
International Law
The Political Question Doctrine and
International Law: The ICTY determined that it
had the power to review the decision of the
Security Council
The Tribunal also determined that owing to the
membership of the former Yugoslavia states in
the UN, primacy did not violate the sovereignty
of the former Yugoslav states.

11. ICTY’s Statute: Article 3 Article 3 — Violations of the laws or customs of war
The International Tribunal shall have the power to
prosecute persons violating the laws or customs of
war: The International Tribunal shall have the power
to prosecute persons violating the laws or customs of
war. Such violations shall include, but not be limited
to: (a) employment of poisonous weapons or other
weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or
devastation not justified by military necessity; (c)
attack, or bombardment, by whatever means, of
undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to
institutions dedicated to religion, charity and
education, the arts and sciences, historic monuments
and works of art and science; (e) plunder of public or
private property.
International Armed Conflicts or non-International
Armed Conflicts?

12. Common Article 3 to Geneva Conventions
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,
each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and
those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the
above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

13. ICTY Appeal Chamber:
Tadic Case
Paragraph 70: An armed conflict exists
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 order to hold a State liable for the acts of an
armed group, it must be proved that this State
wields overall control over the group, not only
by equipping and financing it but also by
coordinating or helping in the general planning
of its military activity.

14. Crimes Defined by ICTY 1. Grave Breaches of Geneva
Conventions: International Armed
Conflicts
2. Violation of the laws and
customs of war: international and
internal armed conflicts (Tadic)
3. Crimes against Humanity :
International and non-international
armed conflicts and situations of
non-armed conflicts (Kunarac)
Genocide: International or Internal
Armed Conflict as well as
situations of non-armed conflicts.
(Kritsic, Karadzij, Mladij)

15. ICTY and Humanization
of International Law
Because of the paucity of precedent in the
field of international humanitarian law, the
Tribunal has, on many occasions, had
recourse to instruments and practices
developed in the field of human rights law.
Because of their resemblance, in terms of
goals, values and terminology, such recourse
is generally a welcome and needed assistance
to determine the content of customary
international law in the field of humanitarian
law.’ ‘Kunarac Judgment’

16. ICTY Statistics

17. ICTY and
Revisionism/Denialism
A 2017 public survey indicated that 56 percent of
respondents viewed ICTY as partial and biased.
In 2015, upon Serbia’s request, Russia vetoed a
Security Council resolution intending to mark the 20th
anniversary of the genocide.
77 percent of respondents believed that convicted war
criminals shall not be allowed to participate in political
life.
One of the key findings relating to the public’s ethnic
bias is that those who consider themselves well-
informed about war crimes trials (about half of the
respondents) are those who demonstrated the most
ethnic prejudice – they were the most likely to find
non-Serbian “suspects”, including the fictional one,
guilty. the survey suggests that no matter what the
ICTY had done, it would not have been able to
convince the Serbian public that some of the gravest
crimes during the wars have been committed by
Serbs and that Serbs were not the greatest victims.
(Kostic, 2018)