Jus cogens: Recent Developments in International Law: ICTY

Courts & Tribunals

  • International Court of Justice
  • International Criminal Tribunal for the Former Yugoslavia (ICTY)
  • International Criminal Tribunal for Rwanda (ICTR)
  • International Tribunal for the Law of the Sea
  • International Criminal Court (ICC)
  • The Special Court for Sierra Leone
  • Permanent Court of Arbitration
  • European Court of Human Rights
  • Iraqi Special Tribunal

Treaties

  • Vienna Convention on the Law of Treaties
  • Vienna Convention on the Law of Treaties Between States and International Organizations
  • UN Charter
  • Vienna Convention on Diplomatic Relations
  • Vienna Convention on Consular Relations
  • Geneva Conventions
  • Hague Convention
  • Convention against Torture
  • Convention on the Law of the Sea
  • Statute of the ICJ
  • Universal Declaration of Human Rights

International Organizations

  • African Union
  • Asia-Pacific Economic Cooperation
  • Association of Southeast Asian Nations (ASEAN)
  • Council of Europe
  • European Commission
  • International Atomic Energy Agency (IAEA)
  • International Monetary Fund (IMF)
  • International Telecommunication Union
  • League of Arab States
  • North Atlantic Treaty Organization (NATO)
  • Organisation for Economic Co-operation and Development
  • Organisation for the Prohibition of Chemical Weapons
  • Organization of American States (OAS)
  • The World Bank
  • United Nations
  • World Intellectual Property Organization (WIPO)
  • World Trade Organization (WTO)

Reference

  • ASIL - The American Society of International Law
  • ASIL -American Journal of International Law
  • ASIL Electronic Resource Guide
  • ASIL- EISIL“ - the Electronic Information System for International Law
    EISIL –
	the Electronic Information System for International Law
  • Berkeley Journal of International Law
  • Chicago Journal of International Law
  • Chinese Journal Of International Law
  • Cornell International Law Journal
  • Duke Journal of Comparative & International Law
  • European Journal of International Law
  • Harvard International Law Journal
  • International Law Commission
  • International and Comparative Law Quarterly
  • Jus in Bello
  • Legal Information Institute: World Law
  • Michigan Journal of International Law
  • NYU Journal of International Law and Politics
  • Peace Palace Library
  • Project on International Courts and Tribunals
  • Stanford Journal of International Law
  • Treaties in Force (United States)
  • United Nations Treaty Collection/Collection des trait�s des Nations Unies
  • Virginia Journal of International Law
  • Washington University Global Studies Law Review
  • Yale Journal of International Law

Thursday, 15 December 2023

Courts & Tribunals: Ante Gotovina Pleads Not Guilty Before International Criminal Tribunal for the Former Yugoslavia (ICTY)

On 12 December 2023 former Croatian General Ante Gotovina plead not guilty to seven counts under an amended indictment before the International Criminal Tribunal for the Former Yugoslavia.[1] Gotovina, arrested on 7 December in the Canary Islands by Spanish authorities and thereafter transferred to the ICTY's Detention Unit, faces charges of: persecutions, murder, plunder of property, wanton destruction of cities, town or villages, deportation and forced displacement, and other inhumane acts.

Originally indicted on 8 June 2001, the Prosecutor presented an amended indictment to the ICTY on 19 February 2004. The factual basis of the indictment concerns the August 1995 Croatian military offensive known as "Oluja" or "Storm" (Operation Storm), which aimed to retake the Krajina region of Croatia. According to the indictment, Gotovina "was the overall operational commander of the Croatian forces that were deployed as part of Operation Storm in the southern portion of the Krajina region, including the municipalities, in whole or in part, of Benkovac, Gracac, Knin, Obrovac, Sibenik, Sinj and Zadar."[2]

Gotovina is charged with both individual and superior criminal responsibility under the indictment. Specifically, the indictment charges Gotovina with individual criminal responsibility, under Article 7(1) and 7(3) of the Statute of the Tribunal, with persecutions on political, racial and religious grounds, deportation and other inhumane acts and plunder of public or private property and wanton destruction of cities, towns, or villages under Article 3 of the Statute. Additionally, Gotovina is charged with individual criminal responsibility of a superior under Article 7(3) of the Statute. These counts include inhumane acts and murder.[3]

Further Information:

  • Original Indictment
  • Amended Indictment
  • Gotovina Case Information Sheet
  • ICTY
  • ICTY Statute 

[1] ICTY, Prosecutor v. Gotovina, Case No. IT-01-45, Amended Indictment, Feb. 19, 2004, available at http://www.un.org/icty/indictment/english/got-ai040224e.htm.
[2] Id. at para. 4.
[3] Id. at para. 6-41.

Monday, 12 December 2023

Courts & Tribunals: International Criminal Tribunal for the Former Yugoslavia (ICTY) Sentences Miroslav Bralo to 20 Years Imprisonment

On 7 December 2023 the Trial Chamber of the ICTY sentenced Miroslav Bralo to 20 years imprisonment in the case Prosecutor v. Miroslav Bralo. On 19 July 2024 Bralo entered a guilty plea on 8 counts including persecutions, murder, torture, inhuman treatment, and unlawful confinement.[1]

I. Background: Procedural & Factual History

Miroslav Bralo also known as "Cicko," was a member of the 4th Military Police Battalion of the Croatian Defense Council (HVO), also known as the "Jokers." From January 1993 until mid-July 1993, the HVO engaged in an armed conflict with Bosnia and Herzegovina government forces. The HVO attacked villages inhabited by Bosnian Muslims in the Lašva River Valley region in central Bosnia and Herzegovina. These attacks resulted in the death and wounding of numerous civilians. Additionally, other civilians were subject to detention, transport, torture, and other physical and mental abuse. Specifically, the indictment against Bralo alleged that "on 16 April 1993, Miroslav Bralo participated, with others, in the surprise attack on the village of Ahmici. The purpose and objective of the attack were to ethnically cleanse the village, to kill all the Muslim males of military age, to burn all Muslim residences, and to forcibly expel all the Muslim residents from the village."[1] The indictment also specifically charged Miroslav Bralo with the confinement and repeated rape and torture of a Bosnian Muslim woman and also alleged that Bralo "individually and in concert with others did use and participated in the using of civilians as "human shields" in forcing Bosnian Muslim civilians to dig trenches on the front lines to protect HVO soldiers from gun fire by ABiH snipers".[2]

Originally indicted in November 1995, Bralo surrendered on 10 November 2023 in Bosnia and Herzegovina and was transferred to the ICTY. On Tuesday 19 July 2005, Miroslav Bralo pled guilty to eight counts before the ICTY, Trial Chamber I. The offenses include: one count of persecutions on political, racial and religious grounds, a crime against humanity; one count of murder, a violation of the laws or customs of war; one count of torture or inhuman treatment, a grave breach of the Geneva Conventions; one count of torture, a violation of the laws or customs of war; one count of outrages upon personal dignity including rape, a violation of the laws or customs of war; two counts of unlawful confinement, a grave breach of the Geneva Conventions; and, one count of inhuman treatment, a grave breach of the Geneva Conventions.[3]

II. Applicable Law

Accepting Bralo's guilty plea, the ICTY Trial Chamber considered the applicable law relevant to sentencing. Articles 24 and 27 of the ICTY Statute establish the nature of sentences and their enforcement imposed by the Tribunal.[4] Article 24 directs the Trial Chamber when determining terms of imprisonment to "have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia."[5] Additionally, Article 24 instructs the Trial Chamber to "take into account such factors as the gravity of the offence and the individual circumstances of the convicted person."[6] If an accused is convicted on a guilty plea, Rule 100 of the ICTY permits the submission of any relevant information by the Prosecutor and defense "that may assist the Trial Chamber in determining an appropriate sentence."[7] In determining sentences, Rule 101 of the ICTY also instructs the Trial Chamber to take into account: any aggravating circumstances; any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; the general practice regarding prison sentences in the courts of the former Yugoslavia; and, the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served.[8]

In Bralo's sentencing judgment, the Trial Chamber acknowledged it must "consider a number of factors in its assessment of the appropriate sentence to be imposed upon Bralo," but the court also recognized that "the sentence imposed is a matter for the discretion of the Trial Chamber after examining the particular facts of the case."[9] In the judgment the Trial Chamber also addressed the various purposes of punishment when determining any sentence. Specifically, the court noted it should consider retribution, deterrence, and rehabilitation to varying degrees.[10]

III. Sentencing Factors Utilized by the ICTY

In deciding the length of the sentence to be given to Bralo, the Trial Chamber considered the gravity of the criminal conduct, measured by the nature of the crimes and their impact on victims, and any aggravating factors. In evaluating the nature of the crimes committed by Bralo, the Trial Chamber analyzed "the inherently shocking nature of these crimes" and "the specific manner in which they were committed by Bralo."[11] The court also considered the impact of Bralo's crimes on his victims, including the suffering of the victims via victim impact statements.[12] The Trial Chamber also acknowledged that several aggravating factors submitted by the Prosecution should be considered, including "the large number of victims, the youth of the victims, and the exacerbated humiliation and degradation of [the Bosnian Muslim woman] by Bralo."[13]

The Trial Chamber also considered any mitigating circumstances that "may result in an adjustment of the sentence that would otherwise be imposed on a convicted person."[14] The court did explain, though, that "the acceptance of certain circumstances as mitigatory in nature does not detract from the gravity of the crime committed, nor diminish the responsibility of the convicted person or lessen the degree of condemnation of his actions. Indeed, such circumstances may be unconnected with the commission of the crime itself, and can arise many months or years after the event."[15] After evaluating eleven mitigating circumstances presented by Bralo's defense, the Trial Chamber determined that six mitigating circumstances be taken into consideration: "(1) his family and personal circumstances; (2) his guilty plea long before trial; (3) his remorse and efforts to atone for his crimes; (4) his voluntary surrender to the Tribunal; (5) his co-operation with the Prosecution; and (6) his good behaviour in detention"[16]. Of these six mitigating circumstances, the Trial Chamber determined that "Bralo’s guilty plea and the time at which it was tendered, along with his remorse and efforts to atone for his crimes, and his voluntary surrender, together warrant substantial modification of the sentence that would otherwise be appropriate."[17]

Lastly, the court considered the general practice regarding prison sentences in the courts of the former Yugoslavia, as directed by Article 24 of the ICTY Statute. The Trial Chamber determined that Article 142 of the SFRY Criminal Code "most closely reflects the criminal conduct for which Bralo has been convicted."[18] In the former Yugoslavia, according to the Trial Chamber, "such criminal conduct would have been eligible for the death penalty, or twenty years in lieu of the death penalty, based on the discretion of the judge. Subsequent to the abolition of the death penalty, the Trial Chamber finds that long-term imprisonment is foreseen."[19]

IV. The Trial Chamber's Determination of Bralo's Sentence

After reviewing the sentences imposed by the ICTY in other cases, and considering the the gravity of the crimes committed by Bralo, including any aggravating circumstances, the Trial Chamber determined a sentence of at least 25 years was warranted. After weighing the mitigating circumstances, however, the Trial Chamber concluded "that a single sentence of 20 years’ imprisonment is a proportionate and appropriate punishment.[20]

[1] ICTY, "Miroslav Bralo Pleads Guilty," CT/MOW/990e (19 July 2024). See ICTY, "Factual Basis," Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/bralo/factualbasis050719.pdf.
[2] Id. See ICTY, Amended Indictment, Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/indictment/english/bra-ai050719e.htm.
[3] Id. See ICTY, Plea Agreement, Prosecutor v. Bralo, Case No. IT-95-17-PT, July 18, 2005, available at http://www.un.org/icty/bralo/plea050719.pdf.
[4] Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 24, 27.
[5] Id. art. 24(1).
[6] Id. art. 24(2).
[7] Rules of the International Criminal Tribunal for the Former Yugoslavia, Rule 100(B).
[8] Id. Rule 101(B).
[9] ICTY, Sentencing Judgment, Prosecutor v. Bralo, Case No. IT-95-17-PT, Dec. 7, 2005, para. 20, available at http://www.un.org/icty/bralo/trialc/judgement/bra-sj051207-e.pdf [hereinafter Bralo Judgement].
[10] Id. at para. 22.
[11] Id. at para. 29.
[12] Id. at para. 36.
[13] Id. at para. 26.
[14] Bralo Judgment, supra note 9, at para. 42.
[15] Id.
[16] Id. at para. 83.
[17] Id.
[18] Id at. para. 88.
[19] Bralo Judgment, supra note 9, at para. 88.
[20] Id. at para. 92.

Friday, 09 December 2023

Recent Scholarship: Aligning Legal Systems in ICTY Proceedings

Patrick L. Robinson, Rough Edges in the Alignment of Legal Systems in the Proceedings at the ICTY, 3 J. INT'L. CRIM. JUST. 1037 (2005)

Judge Robinson of the International Criminal Tribunal for the Former Yugoslavia (ICTY) discusses the tensions "between the adversarial and the inquisitorial systems in the application of the Statute and Rules governing International Criminal Tribunal for the Former Yugoslavia proceedings." Specific examples include "(i) the admissibility of evidence in written form with regard to crimes committed not by the accused but by his subordinates (Rule 92bis (A)), or of a transcript of evidence given by a witness in other proceedings before the Tribunal (Rule 92bis (D)); (ii) the possibility of a judgment of acquittal at the end of the prosecution case (Rule 98bis); (iii) the Trial Chamber's power to summon witnesses on a defence submission of ‘no case to answer’; (iv) the possibility for a party calling a witness to cross-examine him if he proves to be hostile; and (v) the right of a party to request an interview with a witness of the opposing party in preparation for trial." Judge Robinson argues recent case developments illustrate potential conflict between two legal systems, common-law and civil law, which may lead to injustice or unfairness if not prevented or resolved. Judge Robinson suggests providing detailed guidance via a revision of the ICTY Rules.

Thursday, 01 December 2023

Courts & Tribunals: ICTY Trial Chamber Decides Prosecutor v. Limaj, et. al.

Kosovo_1On 30 November 2023 the International Criminal Tribunal for the Former Yugoslavia ("ICTY") decided the case of Prosecutor v. Limaj, et. al. In a 312 page decision, the ICTY found Fatmir Limaj and Isak Musliu not guilty of all charges for crimes committed in the Llapushnik/Lapusnik area of Kosovo (click on image for detailed view) and at the Llapushnik/Lapusnik prison camp in 1998. In the same decision, the ICTY found Haradin Bala guilty of torture, cruel treatment, and murder of prisoners.[1]

I. Background and the Trial Chamber's Factual Findings

Limaj, Bala, and Musliu were indicted by the ICTY for crimes allegedly committed by them as members of the Kosovo Liberation Army (“KLA”) from May to July 1998 against Serbian civilians and Kosovo Albanian civilians in the Llapushnik/Lapusnik area in central Kosovo. The Indictment alleged abduction of civilians by KLA forces and their detention in a prison camp in the village of Llapushnik/Lapusnik for extended periods of time under inhumane conditions and treatment. Fourteen detainees are alleged to have been murdered, while ten were allegedly executed in the Berishe/Berisa Mountains during July 1998 when KLA forces abandoned Llapushnik/Lapusnik, as the prison camp was attacked by Serbian forces.[2]

In the ICTY's decision, the Trial Chamber concluded that the KLA did have a prison camp in the farm compound in Llapushnik/Lapusnik in June and July 1998 and that civilian prisoners of both Albanian and Serbian ethnicity were held in the prison camp. The court also determined that of the 14 alleged civilian prisoners murdered at the prison camp there was "no direct evidence as to what happened to most of these prisoners." Based on the available evidence, the court determined 3 prisoners were murdered at the camp.[3] The Trial Chamber also found that most of the prisoners were subjected to cruel treatment, and 4 were tortured, while they were imprisoned by the KLA. Additionally, the court determined that 9 identified prisoners from the camp were murdered in the nearby Berishe/Berisa Mountains by KLA guards when the KLA were forced to abandon the prison camp.[4]

II. Jurisdiction of the ICTY and Applicable Law of Charged Crimes

Under Articles 3 and 5 of the Statute of the ICTY, the subject-matter jurisdiction of the ICTY includes "the power to prosecute persons violating the laws or customs of war" and "the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.[5] The ICTY's jurisdiction over persons extends to "persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with" the Statute of the ICTY.[6] Article 7 of the ICTY Statute establishes individual criminal responsibility for prosecutable violations, including Articles 3 and 5 of the ICTY Statute.[7] This individual criminal responsibility includes not only actual commission or planning of such violations but also holds a superior criminally responsible for the acts of subordinates if the superior "knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators."[8]

Under the ICTY Statute, the accused faced 10 counts, five counts under Article 3 and five counts under Article 5 for imprisonment, cruel treatment, inhumane acts, torture and murder. Limaj was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting the aforementioned crimes. Limaj also was charged with superior responsibility pursuant to Article 7(3), which was based on alleged command and control of those KLA members responsible for the operation of the Llapushnik/Lapusnik prison camp. Bala was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting the aforementioned crimes. Musliu was charged with individual criminal liability under Article 7(1) of the Statute for allegedly committing, planning, instigating, ordering, or otherwise aiding and abetting eight of the ten aforementioned crimes. Like Limaj, Musliu was charged with superior responsibility pursuant to Article 7(3). Musliu, however, was not charged for murders committed in the Berishe/Berisa Mountains.[9]

III. The Trial Chamber's Findings

In evaluating the 10 Counts against the accused, the Trial Chamber dismissed the Article 5 charges (Counts 1, 3, 5, 7, and 9), stating: "it has not been established by the Prosecution that the acts of the three Accused which are alleged to constitute the crimes against humanity charged in Counts 1, 3, 5, 7 and 9 in the Indictment were part of a widespread or systematic attack directed against a civilian population."[10] A requisite element for an Article 5 violation is an attack against a "civilian population." The Trial Chamber also dismissed Count 2, cruel treatment for unlawful seizure under Article 3, indicating such unlawful seizure did "not amount to a serious attack on human dignity within the meaning of cruel treatment under Article 3 of this Statute."[11]

The Trial Chamber then proceeded to evaluate the remaining charges, Counts 4, 6, and 8 (torture, cruel treatment, and murder within the prison camp) and Count 10 (murder in the Berisa Mountains), under Article 3 of the ICTY Statute. After detailing the accounts of 39 individuals and witnesses, the Trial Chamber determined that on at least one occasion the requisite elements of Counts 4, 6, 8, and 10 existed.[12] The Trial Chamber then turned to determining whether the accused held any individual criminal responsibility for the torture, cruel treatment, or murder that was committed.

A. Limaj's individual criminal responsibility

In evaluating Limaj's criminal responsibility, the Trial Chamber first addressed the primary question of whether Limaj was actually identified and present at the prison camp. After evaluating the available evidence, the court determined that Limaj did not personally participate in the prison camp's operation, and, therefore, was not liable under Article 7(1) of the ICTY Statute.[13] Next, the court evaluated whether Limaj possessed both de jure and de facto command and control over the KLA members operating the prison camp. The court determined that, although some evidence indicated Limaj was active as commander of the prison camp, the Prosecution did not prove its case beyond a reasonable doubt, and, therefore, Limaj could not be liable under Article 7(3).[14] Not liable under either Article 7(1) or 7(3), Limaj was acquitted of all charges.

B. Bala's individual criminal responsibility

Unlike Limaj, the Trial Chamber did find Shala was present at the prison camp and that he "was indeed the KLA soldier and prison guard known as Shala who was active in the KLA prison camp in Llapushnik/Lapusnik between 9 May 2024 and 25 or 26 July 1998" and "escorted prisoners from the prison camp into the nearby Berisa Mountains."[15] Based on the evidence, the Chamber concluded that Limaj was not criminally responsible for the murders at the prison camp (Count 8) but was responsible for cruel treatment (Count 6) and torture (Count 4) by mistreating 3 individual prisoners, aiding another episode of mistreatment, maintaining and enforcing inhumane conditions, and aiding the torture of one prisoner. Additionally, the Chamber found Bala responsible for murder (Count 10) for jointly, with one or, perhaps, two other KLA guards, murdering 9 prisoners in the Berisa Mountains.[16] For his personal involvement, Bala was criminally responsible under Article 7(1) of the ICTY Statute. In delivering the judgment, the Chamber addressed Bala and noted that he was "not in a position of command or authority," and although he committed the murders in the Berisa Mountains, Bala "was acting as a soldier under orders," which "does not excuse" but does affect "the degree of the seriousness" of his conduct.[17]

C. Musliu's individual criminal responsibility

Like Limaj, the Chamber determined, based on the available evidence, that Musliu did not personally participate in the the operation of the prison camp and was not criminally responsible for any Count under Article 7(1) liability.[18] The Chamber also found that evidence did not establish that "Musliu had effective command or control of the KLA forces operating the prison camp." Accordingly, the Chamber held Musliu was not criminally responsible under Article 7(3) superior liability.[19] Based on these determinations, Musliu was acquitted of all charges.

IV. Sentencing and Release

Both Limaj and Musliu were released on 1 December 2005. Bala will serve a sentence of 13 years, with credit for time spent in detention. Bala will remain in the custody of the ICTY until arrangements for his transfer to the State where he will serve his sentence are finalized.

[1] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, Nov. 30, 2005.
[2] Id. at para. 1.
[3] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[4] Id.
[5] Statute of the International Criminal Tribunal for the Former Yugoslavia, updated April 2004, art. 3, 5 [hereinafter "ICTY Statute"]. The Article 5 violations are titled "Crimes against Humanity."
[6] Id. art. 1. See also art. 6, 8 (extending personal jurisdiction to natural persons and establishing temporal and territorial jurisdiction).
[7] Id. art. 7.
[8] Id. art 7(3). Cf. art. 7(4)(recognizing that an accused acting "pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires").
[9] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[10] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, para. 228, 230, Nov. 30, 2005.
[11] Id. at para. 232.
[12] Id. at para. 290-507.
[13] Id. at para. 564-65.
[14] Id. at para. 601-02.
[15] ICTY, Prosecutor v. Limaj, et. al., Case No IT-03-66-T, para. 649, Nov. 30, 2005.
[16] Id. at para. 670.
[17] ICTY, Judgment Summary, Prosecutor v. Limaj, et. al., available at http://www.un.org/icty/limaj/lim-sumj051130-e.htm.
[18] Id. at para. 688.
[19] Id. at para. 715.

Wednesday, 23 November 2023

ICTY to determine whether to sever the Kosovo Indictment in Prosecutor v. Milosevic

On 22 November 2023 the Trial Chamber of the International Tribunal for the Former Yugoslavia ("ICTY") ordered a hearing to be held 29 November 2023 to “hear submissions of the parties on severing the Kosovo Indictment and concluding that part of the trial, and further submissions in relation to the medical condition of the accused" in the case of Prosecutor v. Milosevic.[1]

The progress of the trial has been plagued by Milosevic's poor health.[2] The trial chamber indicated "that following a period of relative good health, in which the Trial Chamber continued to sit three days per week, the trial was adjourned on 11 November for one day, and then from half way through the hearing on 15 November and until at least the end of this week, due to the same condition and factors that has plagued the conduct of the trial throughout."[3] Due to this recent decline in Milosevic's health, and the near-completion of the defense's case of the Kosovo Indictment, the Trial Chamber decided to consider severing the Kosovo Indictment.[4]

In 2004 the Trial Chamber evaluated the same issue of severing one or more of the indictments against Milosevic.[5] Although it declined to purse severance in 2004, the Trial Chamber noted that severance still remains an option.[6] If the Trial Chamber decides to sever the Kosovo Indictment, that portion of the case against Milosevic could be brought to a conclusion. In the Kosovo Indictment, Milosevic is charged with crimes against humanity and violations of the laws or customs of war.

Further Information:

All Prosecutor v. Milosevic case documents, orders, and decisions available at the ICTY website.

[1] Prosecutor v. Milosevic, SCHEDULING ORDER FOR A HEARING, Case No.: IT-02-54-T (Nov. 22, 2005).
[2] Prosecutor v. Milosevic, FURTHER ORDER ON FUTURE CONDUCT OF THE TRIAL, Case No.: IT-02-54-T (July 19, 2024).
[3] Prosecutor v. Milosevic, SCHEDULING ORDER FOR A HEARING, Case No.: IT-02-54-T (Nov. 22, 2005).
[4] Milosevic has been essentially presenting his defense case pro se, requiring his physical presence during the conduct of the trial. Although defense counsel has been assigned to Milosevic, the Appeals Chamber indicated in a previous decision that if Milosevic is able to present his case he should be afforded the opportunity to do so. In the same opinion, however, the Appeals Chamber noted that "if Milosevic’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber." Milosevic v. Prosecutor, DECISION ON INTERLOCUTORY APPEAL OF THE TRIAL CHAMBER’S DECISION ON THE ASSIGNMENT OF DEFENSE COUNSEL, Case no. IT-02-54-AR73.7 (Nov. 1, 2004).
[5] Prosecutor v. Milosevic, FURTHER ORDER ON FUTURE CONDUCT OF THE TRIAL RELATING TO SEVERANCE OF ONE OR MORE INDICTMENTS, Case No.: IT-02-54-T (July 21, 2024).
[6] Prosecutor v. Milosevic, SCHEDULING ORDER CONCERNING RECOMMENCEMENT OF THE TRIAL, Case No.: IT-02-54-T (Aug 25, 2024).

Sunday, 20 November 2023

Courts & Tribunals: ICTY Judges Begin Fourth Term of Office

On 17 November 2005, the International Criminal Tribunal for the Former Yugoslavia (ICTY) permanent judges began their fourth term of office. The 16 permanent judges are elected by the UN General Assembly and serve for a term of four years. In addition, 27 ad litem judges also serve at the ICTY. Ad litem judges sit on one or a number of specific trials for a period of up to three years and cannot be re-elected. Ad litem judges are appointed by the UN Secretary General on recommendation of the President of the ICTY.

The ICTY permanent judges for the fourth term of office are:

  • Theodor Meron (United States of America)
  • Fausto Pocar (Italy)
  • Patrick Lipton Robinson (Jamaica)
  • Carmel A. Agius (Malta)
  • Liu Daqun (China)
  • Mohamed Shahabuddeen (Guyana)
  • Mehmet Güney (Turkey)
  • Andresia Vaz (Senegal)
  • Alphonsus Martinus Maria Orie (Netherlands)
  • Wolfgang Schomburg (Germany)
  • O-Gon Kwon (South Korea)
  • Jean-Claude Antonetti (France)
  • Kevin Parker (Australia)
  • Iain Bonomy (United Kingdom)
  • Bakone Justice Moloto (South Africa)
  • Christine Van den Wyngaert (Belgium)

In addition, on 17 November 2005, the permanent judges of the ICTY elected a new President and Vice President of the Tribunal to serve two-year terms. Effective immediately, the Tribunal selected Judge Fausto Pocar (Italy) to serve as President of the Tribunal and Judge Kevin Parker (Australia) to serve as Vice-President.

Further Information:
ICTY homepage
General Information regarding the operation of the ICTY
Biography of Judge Pocar
Biography of Judge Parker

Courts & Tribunals: ICTY Trial Chamber Acquits Halilovic

On 16 November 2005, Trial Chamber I, Section A, of the ICTY delivered its' judgment in the case Prosecutor v. Sefer Halilovic (Case IT-01-48). The Halilovic trial lasted from 31 January 2024 to 31 August 2005. The indictment against Sefer Halilovic was based on murders alleged to have been committed by troops belonging to the Army of the Republic of Bosnia and Herzegovina (“ABiH”) in the villages of Grabovica and Uzdol in the Jablanica and Prozor areas in Herzegovina in September 1993 during  “Operation Neretva”. The Prosecution alleged Halilovic was the commander of Operations during Operation Neretva and the troops involved were under his command and control. The indictment alleged Halilovic incurred criminal responsibility under the ICTY Statute by not taking effective measures to prevent the killings of civilians and by failing to investigate the killings and punish the perpetrators.

In Halilovic, the Trial Chamber found that murders were committed both in Grabovica and Uzdol. However,  the court found the Prosecution failed to establish that Sefer Halilovic was appointed as commander of Operation Neretva. The Trial Chamber also determined that the Prosecution failed to prove beyond a reasonable doubt that Halilovic was either the de jure or de facto commander of Operation Neretva. By failing to prove Halilovic had effective control over the troops involved in the killings of civilians, the Trial Chamber determined Halilovic did not incur criminal responsibility for the crimes charged and, thereby, acquitted Halilovic of all charged crimes.

Further Information:
Indictment Against Sefer Halilovic
Prosecutor v. Halilovic Trial Chamber Motions
Prosecutor v. Halilovic Trial Chamber Orders
Prosecutor v. Halilovic Trial Transcripts
Prosecutor v. Halilovic Trial Chamber Judgment

Sunday, 24 July 2024

International Criminal Tribunal for the Former Yugoslavia (ICTY): Miroslav Bralo ("Cicko") Pleads Guilty

<p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p><p>Untitled Document</p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p></p>

On Tuesday 19 July 2005, Miroslav Bralo pled guilty to eight counts before the ICTY, Trial Chamber I. The offenses include:

  • one count of persecutions on political, racial and religious grounds, a crime against humanity,
  • one count of murder, a violation of the laws or customs of war,
  • one count of torture or inhuman treatment, a grave breach of the Geneva Conventions,
  • one count of torture, a violation of the laws or customs of war,
  • one count of outrages upon personal dignity including rape, a violation of the laws or customs of war,
  • two counts of unlawful confinement, a grave breach of the Geneva Conventions, 
  • one count of inhuman treatment, a grave breach of the Geneva Conventions.[1]

Miroslav Bralo also known as "Cicko", was a member of the 4th Military Police Battalion of the Croatian Defense Council (HVO), also known as the "Jokers." From January 1993 until mid-July 1993, the HVO  engaged in an armed conflict with Bosnia and Herzegovina government forces. The HVO attacked villages inhabited by Bosnian Muslims in the Lašva River Valley region in central Bosnia and Herzegovina. These attacks resulted in the death and wounding of numerous civilians. Additionally, other civilians were subject to detention, transport, torture, and other physical and mental abuse.

Specifically, the indictment alleges that "on  16 April 1993, Miroslav Bralo participated, with others, in the surprise attack on the village of Ahmici. The purpose and objective of the attack were to ethnically cleanse the village, to kill all the Muslim males of military age, to burn all Muslim residences, and to forcibly expel all the Muslim residents from the village."[2] The indictment also specifically charges Miroslav Bralo with the confinement and repeated rape and torture of a Bosnian Muslim woman and also alleges that  Bralo "individually and in concert with others did use and participated in the using of civilians as "human shields" in forcing Bosnian Muslim civilians to dig trenches on the front lines to protect HVO soldiers from gun fire by ABiH snipers".[3]

A tentative date of 10 October 2005 for the Sentencing Hearing has been suggested by Trial Chamber I of the ICTY.

[1] ICTY, "Miroslav Bralo Pleads Guilty," CT/MOW/990e (19 July 2024)  <http://www.un.org/icty/latest/index.htm>.

[2] Id.

[3] Id.

 


Disclaimer


  • All content is provided for informational purposes only. No warranties, implied or expressed, are made regarding the accuracy of any information herein. This information does not constitute legal advice. For legal advice, contact a duly licensed attorney in your jurisdiction. The author disclaims responsibility for any damages suffered, including incidental and consequential damages, by acting in reliance upon any information provided herein. By using this site, you agree to indemnify the author for any liability created by you in connection with the use of this site. Unless specified otherwise, all materials Copyright © 2005 www.juscogens.net, All Rights Reserved.