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41. The Legacy of the ICTY as Seen Through Some of its Actors and Observers

Author:
Frédéric Mégret
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article proposes an exploration of the 'legacy' of the ICTY through the experience of some of its actors and observers. It is based on material provided by a dozen interviews and written in the spirit of understanding the tribunal's legacy as a collection of complex individual narratives of what the tribunal stands for, what it did well, and what it might have done better. The legacy of the ICTY as an international criminal tribunal on the one hand, and as a device for transitional justice on the other hand are considered. Although a tension is found to exist between a more 'forensic' and a more 'transitional' view of its role which is particularly manifest in determining the tribunal's constituencies and policies, the two are also linked. There is broad consensus about the tribunal's importance, but on the eve of its closing, also a sense of the limits of what international criminal justice can aspire to achieve.
Political Geography:
Yugoslavia

42. The ICTY Legacy: A Defense Counsel's Perspective

Author:
Michael G. Karnavas
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
The ICTY's achievements are as impressive as they are irrefutable. Less impressive is the uneven quality of procedural and substantive justice that the Tribunal has rendered. The author highlights several shortcomings at the Tribunal, including the appointment of unqualified judges, excessive judicial activism, its disparate application of law, procedure, and prosecutorial resources to different ethnic groups, and its tinkering with the rules of procedure to promote efficiency at the cost of eroding the fundamental rights of the Accused. Drawing on specific examples, from the approach adopted concerning the admissibility of testimonial evidence to specific areas of substantive law where judicial activism has been pronounced – the development of joint criminal enterprise and the requirements for provisional release at a late stage of the proceedings – this article is one defense counsel's perspective of some of the most unfortunate shortcomings of the ICTY, which regrettably form part and parcel of the Tribunal's legacy.
Topic:
Security and Law
Political Geography:
Yugoslavia and United Nations

43. The Winding Down of the ICTY: The Impact of the Completion Strategy and the Residual Mechanism on Victims

Author:
Giovanna M. Frisso
Publication Date:
12-2011
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
Even though not clearly spelled out in its constitutive instrument, one characteristic of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is its temporary character. This characteristic presents the ICTY with a significant challenge, the complexity of which is increased by the fact that the tribunal has a multi-faceted mandate. This article examines the effects of the completion strategy of the ICTY on the victims of the crimes under its jurisdiction. Initially, it considers the impact of the completion strategy on the victims who participated, as witnesses, in the proceedings before the ICTY. It argues that the pressure to comply with the timeframe established by the Security Council has resulted in the reduction of the victims to their forensic usefulness. The victims were considered primarily in light of their instrumental relevance to the proceedings. Then, the article suggests, through the analysis of the referral of cases to domestic courts and the value of the archives of the ICTY, that the completion strategy can or might have a positive effect on the implementation of the rights of the victims who have not had direct contact with the ICTY. In this context, this article argues that the termination of the ICTY does not necessarily mean that the struggle for the implementation of the rights of the victims has finished.
Topic:
Security
Political Geography:
Yugoslavia

44. The Requirement of 'Belonging' under International Humanitarian Law

Author:
Katherine Del Mar
Publication Date:
02-2010
Content Type:
Journal Article
Abstract:
This article argues that the notion of 'belonging to a Party' to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of 'belonging' demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state's behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to 'belong' under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as 'international'. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.
Topic:
International Law
Political Geography:
Yugoslavia

45. The Logic of E.U. Enlargement: Exporting Stability or Inheriting an Empire.

Author:
Velibor Jakovleski
Publication Date:
05-2010
Content Type:
Journal Article
Journal:
Journal of Public and International Affairs (JPIA)
Institution:
School of Public and International Affairs (SPIA), Princeton University
Abstract:
The European Union (E.U.) has served as an anchor of order and stability in Europe for decades and continues to play an important role in shaping its external environment through enlargement, or the process of expansion through the accession of new member states. However, the logic that informs contemporary E.U. enlargement policy has undergone a significant shift. This paper argues that this change is attributed to the desire by the E.U. to ensure internal security in the aftermath of the Yugoslav and Kosovo wars. E.U. internal security and enlargement policy, therefore, are inextricably linked. This has resulted in a variable and differentiated enlargement process, with the emergence of a Europe characterized by metaphorical concentric circles of fading political authority as one moves from the E.U. “core” into the European “periphery.
Political Geography:
Europe, Kosovo, Yugoslavia, and Santiago

46. Pulling the Stops on Genocide: The State or the Individual?

Author:
Amabelle C. Asuncion
Publication Date:
11-2009
Content Type:
Journal Article
Abstract:
The International Court of Justice's decision on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) has exposed the unforeseen irony in the international consensus on the singular distinction of genocide as the crime of crimes. Defying expectations, this classification coupled with the conception of a 'civil genocide' has magically transformed into a legal shield which protects states from responsibility even as individual convictions are being handed down. Yet, the history of the Genocide Convention easily recalls the objective of preventing the commission of genocide by states and individuals alike. This article thus ponders on the virtue of seeking recourse under the Genocide Convention – whether against the state or the individual. In traversing this inquiry, it embarks on a comparative analysis of selected case law from the International Criminal Tribunal of Yugoslavia, the International Criminal Tribunal of Rwanda, and the International Court of Justice. As it uncovers a counterintuitive clash of jurisprudential outcome and a widening gap between the ideal and the real, the article identifies the legal bolts which need to be adjusted so that the genocide stops can be pulled in the right direction.
Topic:
History
Political Geography:
Yugoslavia and Rwanda

47. International Justice and International Politics: Intertwined Paths

Author:
David Penna
Publication Date:
01-2009
Content Type:
Journal Article
Journal:
Human Rights and Human Welfare - Review Essays
Institution:
Josef Korbel Graduate School of International Studies, University of Denver
Abstract:
The end of July 2008 was marked by an unexpected event: the announcement of the spectacular arrest and transfer of Radovan Karadzic to the International Criminal Tribunal for the Former Yugoslavia by Serb authorities. Karadzic, slightly disguised, had led a life hiding in plain view and even making television appearances in his new personality. The transfer came thirteen years after Karadzic's indictment (“Karadzic Set to Make First Court Appearance” 2008). The arrest left two indicted war criminals from Yugoslavia (Ratko Mladic and Goran Hadzic) remaining at large and seemed to promise some prospect that the tribunal will have a high profile conviction before it closes its doors in 2010. This is especially compelling given Karadzic's claim that he was promised immunity by the United States for agreeing to the Dayton Accords and limiting his political activity in later years; the Court rejected that any immunity could be recognized under international law (ICTY 2009, para. 5). Was the arrest an indication that international justice had triumphed over international politics? The Court seems to accept a standard of international justice that demands respect for agreed upon international standards of humanitarian law or respect for victims' rights rather than political deals, even those guaranteed by great powers to end a conflict.
Topic:
Humanitarian Aid
Political Geography:
Yugoslavia

48. Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation

Author:
Janine Natalya Clark
Publication Date:
04-2009
Content Type:
Journal Article
Abstract:
To date, 20 defendants at the International Criminal Tribunal for the former Yugoslavia (ICTY) have pleaded guilty. Such guilty pleas have generally been accepted by the Trial Chambers as mitigating circumstances on the grounds, inter alia, that they can facilitate reconciliation in the former Yugoslavia. Yet as these guilty pleas are frequently induced through plea bargains, in which important concessions are accorded to defendants, this necessarily raises fundamental questions about whether guilty pleas can and do in fact foster reconciliation. The purpose of this article, therefore, is to explore this posited link between guilty pleas and reconciliation which, in turn, is one dimension of the broader linkage that the Tribunal makes between its work and reconciliation. It will focus on two particular claims made by the Tribunal - that guilty pleas aid reconciliation by helping to establish the truth and that when defendants acknowledge responsibility for their crimes, this may help to provide victims with closure. It will seek to demonstrate that both of these assertions are flawed, and will conclude by addressing some of the broader issues and questions raised by the ICTY's use of plea bargains, in particular the critical relationship between plea bargains and outreach work.
Political Geography:
Yugoslavia

49. Conflictos bélicos y gestión de la información: una revisión tras la guerra en Irak y Afganistán

Author:
Manuel R. Torres Soriano and Javier García Marín
Publication Date:
09-2009
Content Type:
Working Paper
Institution:
CONfines de Relaciones Internacionales y Ciencia Política
Abstract:
Existe un acuerdo casi unánime entre aquellos estudiosos que han investigado la compleja realidad de la guerra: el creciente papel que tiene la gestión de la información pública en el desarrollo de los conflictos bélicos (Libicki, 1995; Alberts et al., 2001, Armistead, 2004). Esta preponderancia se manifestó en algunos de los conflictos de la década de los noventa, como la llamada Guerra del Golfo, y en los de la antigua Yugoslavia y Kosovo. A pesar de que en ellos la gestión de la información jugó un papel destacado en la estrategia de los contendientes, el desenlace de estos conflictos estuvo vinculado a los tradicionales elementos del “poder duro”, según la distinción de Josehp Nye (1990). Sin embargo, en los últimos años, hemos podido asistir a un acelerado incremento de la importancia del componente “inmaterial” de la guerra. La generalización y sofisticación de las nuevas tecnologías de la información, junto con la aparición de una nueva tipología de conflicto caracterizado por la asimetría en la naturaleza y fines de los contendientes, han situado a la dimensión informativa de los conflictos en el lugar central de toda reflexión sobre la naturaleza de las guerras del presente y el futuro.
Topic:
Conflict Resolution, War, and Insurgency
Political Geography:
Afghanistan, Iraq, Kosovo, Yugoslavia, and Maryland

50. Nick Miller, The Nonconformists: Culture, Politics, and Nationalism in a Serbian Intellectual Circle, 1944-1991

Author:
Harun Karcic
Publication Date:
12-2009
Content Type:
Journal Article
Journal:
Central European University Political Science Journal
Institution:
Central European University
Abstract:
The collapse of Yugoslavia in the early 1990s has by now been thoroughly analyzed by journalists, social scientists and historians. An entire spectrum of theories about conspiracy theories have emerged, varying from interpreting the break up of Yugoslavia as a byproduct of 'ancient hatreds' all the way to looking at it as a mere power struggle between former- communists-turned-nationalists. It is impossible to understand the break up of Yugoslavia without having to go back at least to the Second World War. Once the 50 years between the formation and the collapse of Yugoslavia are analyzed, including the gradual rise of nationalism in the 1970s and 1980s, the picture becomes somewhat clearer.
Political Geography:
Yugoslavia and Serbia