THE INTERNATIONAL CRIMINAL TRIBUNAL

FOR THE FORMER YUGOSLAVIA

The indictments in the ICTY addressed crimes

committed from 1991 to 2001 against members of
various ethnic groups in Croatia, Bosnia and
Herzegovina, Serbia, Kosovo and the Former Yugoslav
Republic of Macedonia.

Slobodan Milošević, at the time the former President of

the Federal Republic of Yugoslavia, became the first
sitting head of state to be charged with war crimes in
Kosovo, Later, it was extended, to include indictments
on Croatia and Bosnia, in the latter case accusing him of
genocide for his alleged collusion in the massacre of
more than 7,000 Muslim males at Srebrenica in July
1995.

But how did the atrocities start in Yugoslavia?

Yugoslavia was a communist federation made up of six
republics: Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia.
Josip Tito ruled Yugoslavia for three decades. After his
death in 1980, there was a rise in nationalism and
separatism among the republics.

Croatia and Slovenia declared their independence from

Yugoslavia in 1991. Macedonia also voted for
independence. Serbia and Montenegro proposed
forming an alliance and retaining the name
"Yugoslavia."
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Bosnia and Herzegovina wanted to declare

independence so it held a referendum in March 1992.
The voters overwhelmingly chose independence. More
than 99 percent of the voters cast ballots for
independence. But only two of the three main ethnic
groups – the Croats and Bosnian Muslims - voted.
They comprise about 64 percent of the electorate. The
third main ethnic group of Bosnia, the Serbs, staged a
boycott.

After the voting, Serb gunmen set up barricades and cut

off the republic's capital, Sarajevo, from the rest of the
republic. Eleven people died in that unrest alone.
What makes Bosnia-Herzegovina so volatile is that none
of the ethnic groups make up a majority: the Bosnian
Muslims represent 45 percent; the Croats, 16 percent.
Serbs represent approximately 31 percent of the
population but claim 65 percent of the territory.
Serb leaders proclaimed a “Serb Republic of Bosnia and
Herzegovina,” and received backing and weapons from
neighboring Serbia and the Serb-controlled Yugoslav
Army. The siege of Sarajevo began as Serb forces struck
areas occupied by Bosnian Muslims and Croats with
artillery.

Radovan Karadžić, the political leader of the Bosnian

Serbs, announced the creation of a Bosnian Serb army,
which would absorb members from the Yugoslav army.
Gen. Ratko Mladić was named the commander.
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Serb forces took control of the town of Prijedor where

Bosnian Serbs established camps where primarily non-
Serb detainees were held in “appalling” conditions. More
than 3,000 Muslims and Croats were killed in the
region.

In May, 1993 The UN Security Council formally

established the International Criminal Tribunal for the
former Yugoslavia.

Even with the creation of the Criminal Tribunal, on

March, 1995 Karadžić, the leader of the Bosnian Serbs,
signed a document called “Directive No. 7.” It called for
combat operations to “create an unbearable situation of
total insecurity with no hope of further survival or life”
for those living in the UN safe areas of Srebrenica.
In April, 1995, the chief prosecutor of the international
tribunal thus announced that Radovan Karadžić and
Ratko Mladić were being investigated for
masterminding a campaign of ethnic cleansing.

Despite knowledge that they were being investigated, the

directed Bosnian Serb forces to attack Srebrenica in July
1995. But when Mladić’s forces entered Srebrenica they
found it mostly empty. Thousands of people — mostly
women, children and the elderly — fled to nearby
Potocari. The able-bodied men began trekking through
the woods to reach the Muslim-controlled city of Tuzla.
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In Potocari, Mladić and his senior officers separated

males over the age of 16 from the rest of the refugees.
Women and children were put on buses and trucks.
Mladić was believed to have been in command when
over 7,000 people were murdered in four days in July,
1995. The strict military control was attributed to
Mladic and Karadzic as the top men who ordered the
murder.

Mladić and Karadžić were indicted by the International

Criminal Tribunal for the former Yugoslavia on charges
of genocide; crimes against humanity “by persecuting
Bosnian Muslim and Bosnian Croat civilians on
national, political and religious grounds”; and being
“criminally responsible for the unlawful confinement,
murder, rape, sexual assault, torture, beating, robbery
and inhumane treatment of civilians.”

Their indictments were amended in November 1995 to

include charges of genocide and crimes against
humanity in relation to Srebrenica.
Bosnian Muslim and Croat forces seized territory from
the Serbs. This victory forced the Serbs to negotiate.
At the United States’ urging, a ceasefire agreement was
reached on Oct. 5, 1995 but its implementation was
delayed when the Bosnian government insisted on
electricity being restored to Sarajevo first. The
presidents of Bosnia and Serbia and Bosnian Serb
leaders Karadžić and Mladić agreed to the ceasefire.
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The presidents of Bosnia, Serbia and Croatia agreed to a

U.S.-brokered peace framework that was worked out in
Dayton, Ohio over 20 days. Although Bosnia and
Herzegovina would share a presidency and parliament,
it would also be split into two political entities:
Republika Srpska for Serbs, and the Federation of
Bosnia and Herzegovina for Muslims and Croats. The
Dayton Peace Agreement was formally signed in Paris in
December, 1995.

After evading capture for 16 years, Mladić was arrested

in Serbia. His trial began at the Hague in May, 2012.
Mladić was found guilty on 10 out of 11 counts. He was
convicted of “genocide and persecution, extermination,
murder and the inhumane act of forcible transfer in the
area of Srebrenica in 1995” and “persecution,
extermination, murder, deportation and inhumane act
of forcible transfer” in areas throughout Bosnia, and
“murder, terror and unlawful attacks on civilians in
Sarajevo” and “hostage-taking of UN personnel.” He was
sentenced to life in prison. He appealed the conviction in
2018.

Radovan Karadzic was arrested in Belgrade in July

2008, 10 years after he had gone underground. He
disappeared after he had been indicted for war crimes.
When he reappeared, he had a new identity, passing
himself off as a new-age health guru, practicing
alternative medicine, writing articles and even lecturing
under an alias.
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As earlier mentioned, Karadžić led a breakaway Serb

territory when Bosnia declared independence from a
crumbling Yugoslavia in 1992, after the Soviet Union’s
collapse.

The subsequent conflict was marked by atrocities

against civilians, most carried out by Bosnian Serb
troops, who conducted a campaign of “ethnic cleansing”
to get rid of Muslims and ethnic Croats.

About 100,000 people were killed and 2.2 million were

left homeless. The mass killings culminated in the
Srebrenica massacre.
The ITCY held Karadzic criminally responsible for
genocide in the 1995 Srebrenica massacre. It was held
that without Karadzic’s support, the Srebrenica
massacre could not have happened.
As the most senior Bosnian Serb leader, Karadzic's
responsibilities during the Bosnian War, together with
General Ratko Mladic, included ultimate oversight of the
Bosnian Serb army.

Radovan Karadžić has been found guilty of genocide

over the 1995 massacre in Srebrenica and sentenced to
40 years in jail.
Karadžić’s other convictions were for five counts of
crimes against humanity and four of war crimes,
including taking UN peacekeepers hostage, deporting
civilians, murder and attacks on combatants.
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Karadzic appealed his conviction and the Mechanism for

International Criminal Tribunals’ appeals chamber
confirmed the verdict and increased his sentence from
40 years to life in prison, citing the gravity of his crimes
Aside from Karadzic and Mladic, the following were also
landmark decisions of the ICTY:

1. Duško Tadić: first-ever trial for sexual violence

against men
The Trial Chamber found how Serb forces confined
thousands of Muslims and Croats in camps. In a horrific
incident in the Omarska Camp, one of the detainees was
forced by uniformed men, including Duško Tadić, to bite
off the testicles of another detainee. In May 1997, the
Trial Chamber found Tadić guilty of cruel treatment
(violation of the laws and customs of war) and inhumane
acts (crime against humanity) for the part he played in
this and other incidents.

2. Mucić, Delic and Landzo: rape as torture

The three were charged with sexual violence against
Bosnian Serb civilians kept in a prison camp.
The Trial Chamber considered a number of sexual
violence charges during the trial. Esad Landžo, a camp
guard, forced two brothers to commit fellatio on each
other in full view of other detainees, and placed a
burning fuse around their genitals. He also placed a
burning fuse around the genitals of another male
detainee and forced him to run between rows of
prisoners.
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Landžo’s superior responsible for these acts. Zdravko

Mucić, the camp commander, was found guilty of these
and other crimes committed by his subordinates. The
crimes were qualified as grave breaches and violations of
the laws and customs of war.

A legal precedent was set in the adjudication of the rape

charges committed by the deputy camp commander,
Hazim Delić. Rape was qualified as a form of torture –
the first such judgement by an international criminal
tribunal.

Two years later, on appeal, Tadić was additionally

sentenced for grave breaches of the 1949 Geneva
conventions: inhumane treatment and wilfully causing
great suffering or serious injury to the body or health. In
the Judgement, the Appeals Chamber set out that
“Through his presence, Duško Tadić aided and
encouraged the group of men actively taking part in the
assault. Of particular concern here is the cruelty and
humiliation inflicted on the victim and the other
detainees”. In January 2000 Tadić was sentenced to 20
years’ imprisonment.

Delić raped two women detained in the camp, Grozdana

Ćećez and Milojka Antić, during interrogations. The
judges ruled that the purpose of the rapes was to obtain
information, punish the women for their inability to
provide information and to intimidate and coerce them.
The Trial Chamber also found that the violence suffered
by the two women had a discriminatory purpose - it was
inflicted on them because they were women.
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When passing this judgement in 1998, the Trial

Chamber considered "the rape of any person to be a
despicable act which strikes at the very core of human
dignity and physical integrity.” The judges held that acts
of rape may constitute torture under customary
international law.
The ICTY Appeals Chamber upheld the findings of the
Trial Chamber and sentenced Hazim Delić to 18,
Zdravko Mucić to 9 and Esad Landžo to 15 years of
imprisonment.

3. Furundžija: sexual violence in focus

The first case at the ICTY to concentrate entirely on
charges of sexual violence was that against Anto
Furundžija. The trial focused on the multiple rapes of a
Bosnian Muslim woman committed during
interrogations led by Furundžija who was at the time the
commander of a special unit of the Croatian Defence
Council.

It was not Furundžija personally, but his subordinate

who raped the woman in front of a laughing audience of
other soldiers. Nevertheless, as the unit’s commander,
Furundžija was found guilty as a co-perpetrator and as
an aider and abettor. The conviction was upheld on
appeal and Furundžija was sentenced to 10 years’
imprisonment.

Importantly, the Tribunal’s judges also confirmed that

rape may also amount to genocide, if the requisite
elements are met, and may be prosecuted accordingly.”
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A landmark precedent was set in 1998 when ICTY’s

sister tribunal the ICTR rendered a judgement in
Akayesu case in which it was concluded that rape
constitutes genocide.

4. Kunarac, Kovac and Vukovic: sexual enslavement

and rape as crimes against humanity
The second ICTY trial to deal entirely with charges of
sexual violence made another significant contribution to
international criminal law. The judgement broadened
the acts that constitute enslavement as a crime against
humanity to include sexual enslavement and determined
the relationship of gender crimes to customary law.

The three accused Bosnian Serb army officers Dragoljub

Kunarac, Zoran Vuković and Radomir Kovač, played a
prominent role in organising and maintaining the
system of infamous rape camps in a Bosnian town.

Bosnian Serbs gathered Muslim women in detention

centres around the town where they were raped by Serb
soldiers. Many women were then taken to apartments
and hotels run as brothels for Serb soldiers. The judges
heard the testimonies of over 20 women regarding
repeated acts of rape, gang rape and other kinds of
sexual assault and intimidation.
The women also described the way in which they were
obliged to perform household chores, were forced to
comply with all the demands of their captors, were
unable to move freely and were bought and sold like
commodities. In short, they lived in conditions of
enslavement.
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There was no doubt in the Judges’ minds that the

enslavement was sexual in nature. This was a significant
ruling, because international law had previously
associated enslavement with forced labour and
servitude. The definition of the crime was therefore
widened to include sexual servitude.

All three accused were also found guilty of rape as a

crime against humanity. This was the first such
conviction in the ICTY’s history, closely following on the
historical precedent set by the ICTR’s judgement in the
Akayesu case in 1998.
In the context of a widespread and systematic attack on
civilians, rape was used to implement a strategy of
“expulsion through terror,” the ultimate goal of which
was to drive the Muslims out of the region. Rapes
became the way in which “the Serbs could assert their
superiority and victory over the Muslims. After the rape,
the accused would assert the women should be
privileged to be now carry a Serb baby.”

The convictions were upheld by the Appeals Chamber in

June 2002. Kunarac, Kovač and Vuković received 28,
20, and 12 years’ imprisonment respectively.

5. Radislav Krstić: link between rape and ethnic

cleansing
Whereas the Kunarac et al. judgement clearly defined
rape as a tool of war, the case of Radislav Krstić
established a link between rape and ethnic cleansing,
which, in the context of Srebrenica crimes in July 1995,
was closely associated with genocide.
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Krstić was a General Major in the Bosnian Serb Army

and commander of the Drina Corps during the operation
which resulted in the execution of more than seven
thousand Bosnian Muslim boys and men from
Srebrenica in July 1995.

As Srebrenica fell under Bosnian Serb army control,

about 20-30,000 of its Muslim residents, mostly
women, children and the elderly, fled to the nearby
village of Potočari. Several thousand sought protection
inside the UN military camp. Serb soldiers entered the
compound, mingled in the crowd and threatened, beat
and killed people. The soldiers also committed many
acts of rape.

The Trial Chamber found Krstić responsible for the

crimes committed in Potočari, including the rapes,
which were deemed as “natural and foreseeable
consequences of the ethnic cleansing campaign”. The
Judges noted that, although “ethnic cleansing” was not a
legal term, it had been used in various legal analyses
before. The Trial Chamber concluded that there were
“obvious similarities between a genocidal policy and the
policy commonly known as ''ethnic cleansing”.