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The Ad Hoc Criminal Tribunals for the Former Yugoslavia and Rwanda
by Anne E. Mahle

Under Chapter Seven, Article 48 of the UN Charter, the UN Security Council has the power to create ad hoc criminal tribunals to try individuals who commit crimes in violation of international humanitarian law. This is the body of international law governing the conduct of parties during armed conflict; it includes prohibitions on the commission of war crimes, crimes against humanity, and genocide. It is comprised of the 1949 Geneva Conventions and their Protocols, the 1948 Genocide Convention, and customary international law governing armed conflicts. In the wake of ongoing and intensifying wartime atrocities in Croatia and Bosnia in the early 1990s and the Rwandan genocide of 1994, the UN Security Council created two ad hoc criminal tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The jurisdiction of these tribunals is limited: the ICTY only has jurisdiction over cases arising within the territory of the Former Yugoslavia since 1991; the ICTR has jurisdiction over cases arising from acts committed in the territory of Rwanda or by Rwandan citizens in neighboring states between January 1, 1994 and December 31, 1994. The ICTY sits in The Hague, Netherlands, and the ICTR sits in Arusha, Tanzania.

The ICTY and ICTR are each governed by a statute that sets forth the tribunal's jurisdiction, the applicable law, the rights of the accused, the judgment and appeals processes, and the organizational structure of the tribunal, including its judicial chambers, the Office of the Prosecutor, and the Office for Protection of Witnesses. In addition, each tribunal has a separate, detailed set of rules of procedure and evidence designed to govern each aspect of its functioning, from pretrial proceedings through final judgments upon appeal. Special care was taken in the establishment of these rules to protect the accused and to combine the different aspects of the legal systems of UN member states. As a result, the rules and procedures of the tribunals are a mixture of those found in a common law system (as in the United States, the United Kingdom, and former British colonies) and those used in a civil law system (as is found in Continental Europe and much of South America and Africa). The judges sitting on the tribunals' trial and appellate panels are representatives of both legal systems.

The ICTY has publicly indicted 80 individuals, including the former President of Yugoslavia, Slobodan Milo÷evic, and the former "President" of the Republika Srpska, Radovan Karadűic. A number of additional indictments remain "sealed" or secret until the individuals indicted have been apprehended. The Office of the Prosecutor has determined that sealed indictments are necessary, as the tribunal has received little cooperation from Serb officials in turning over those indicted who are believed to be living in areas controlled by Serbian political and/or military forces.

Forty-nine individuals are currently in detention in The Hague, while 6 have been provisionally released and 31 remain at large, including Radovan Karadűic and Ratko Mladic, the commander of the Bosnian Serb forces. A list of the indictees, their status, and a brief description of the crimes for which they have been indicted can be found at http://www.un.org/icty/glance/index.htm. The ICTY has convicted 11 individuals who are currently serving their sentences. Fifteen defendants are in the process of appealing their convictions. A complete, easy-to-read listing of the status of all cases can be found at http://www.un.org/icty/glance/profactindex-e.htm.

The ICTR currently has 55 individuals in detention, including the 8 whom the Tribunal has convicted. The ICTR has issued 6 final decisions to date, as 2 of the convicted are still appealing their decisions. Those convicted include Jean-Paul Akayesu, the former Bourgmestre of Taba, and Jean Kambanda, the former Prime Minister of Rwanda. Both have been sentenced to life in prison. These convictions represent the first time since the World War II tribunals that civilian officials have been held criminally liable under international humanitarian laws, and Mr. Akayesu's is the first conviction for genocide. In addition, the ICTR is trying a number of individuals for war crimes based on their role as propagandists, in recognition of the important role that the Hutu-controlled radio stations played in inciting genocidal acts.

In establishing these tribunals, the Security Council intended not only to stop the cycle of impunity but also to provide a strong deterrent against the commission of acts in violation of international humanitarian law. The immediate reality, however, was that the tribunals had little deterrent effect. Some of the Bosnian war's most brutal crimes -- including the massacre at Srbrenica, for which numerous Serbs have been charged with genocide -- occurred after the creation of the ICTY. Even more remarkable, five years after the creation of the tribunal and in the same year as its first conviction, Serbian forces committed further atrocities in Kosovo. Though they have fallen short of their lofty goal, the ICTY and ICTR have had a profound impact on international law. Thus far, decisions before the tribunals have recognized that rape and sexual slavery are crimes against humanity, that military forces of nonrecognized entities are bound by the requirements of international humanitarian law, and that civilian leaders, as in World War II, are not insulated from criminal liability for violations. In addition, the proceedings of the tribunals have created an accurate historical record of these conflicts.


For a quick overview of the ICTY, see http://www.un.org/icty/glance/keyfactindex-e.htm.

For a quick overview of the ICTR, see http://www.ictr.org/about.htm.

For in-depth information, including the text of all legal documents governing the creation of and implementation of the ICTY and the full text of the ICTY's indictments and decisions, visit its Web site at www.un.org/icty. The site is available in English, French, and the three languages of the Former Yugoslavia.

For in-depth information on the ICTR, visit its Web site at www.ictr.org. It too has all legal documents and judgments available. The site is available in English and French.


About the Author
Anne Mahle is an attorney at Faegre & Benson in Minneapolis, Minnesota. During law school she worked on Romagoza et. al. v. Garcia et. al. under the supervision of Carolyn Patty Blum at the International Human Rights Law Clinic at the University of California Berkeley (Boalt Hall).




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  • Universal Jurisdiction
  • Command Responsibility
  • Yamashita Case
  • Rwanda and Former Yugoslavia
  • Military Tribunals Versus Civil Trials
  • The International Criminal Court