Essay Example on The ICTY is located in The Hague The Netherlands








INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA Some argue that the ICTY would result from the exasperation of having exhausted all possible measures to put an end to a brutal war with the exception of those that required too much courage and the ICTR from the guilt of the international community who had passively assisted in the massacre of 800 000 people in 100 days The cynicism surrounding the establishment of these tribunals was exacerbated by the fact that Rwanda voted against United Nations Security Council Resolution 955 which created the ICTR even though it later agreed to collaborate in prosecutions by this court The ICTY is located in The Hague The Netherlands and is empowered to try those alleged to be responsible for serious violations of the 1949 Geneva Conventions violations of the laws or customs of war genocide and crimes against humanity As the crisis in Rwanda was the result of an internal conflict the ICTR was empowered to try those alleged to be responsible for genocide crimes against humanity and violations of Article 3 common to the Geneva Conventions of 1949 and the Protocol additional to the Geneva Conventions of 12 August 1949 on the Protection of Victims of Non International Armed Conflicts which sets out the protections afforded to persons in this type of conflict

This court sits in Arusha Tanzania Despite considerable cynicism about the costs of these tribunals and their ability to foster genuine peace and reconciliation and despite the challenges in detaining individuals indicted by the ICTY both courts have made historic progress in IHL The ICTY for example has recognized rape and enslavement as crimes against humanity and indicted a head of state still in office In addition to the amazement of many observers some of the defendants surrendered voluntarily to the ICTY In Rwanda the former prime minister pleaded guilty to genocide charges and admitted his role in the murder of 800 000 people The 1998 ICTY rendition of Akayesu is the first conviction of an international tribunal for the crime of genocide This judgment also expands the definition of this crime to include rape and other forms of sexual violence The statutes of the ICTY and the ICTR define the powers of the prosecutor in much more detail than any other similar body Unlike the group of prosecutors set up for the Nuremberg trial the ICTY and ICTR prosecutors are not separate national teams composed of military lawyers based on common assumptions about legal and procedural issues Prosecutors and their team are trained and come from different legal systems The ICTY Attorney General is appointed by the United Nations Security Council for a four year term he is independent and can neither seek nor receive instructions from any national government The Office of the Prosecutor is separate from the Tribunal but any proposed indictment must be subject to the approval of a judge of the ICTY Thus the prosecutor s discretion to initiate proceedings before the Tribunal is moderated by judicial review

The ICTR prosecutor is also independent and does not seek or receive instructions from any government or any other source The difference between the two courts lies in their field of competence because the Rwandan conflict was essentially an internal conflict However the role of the prosecutor is the same and in both cases, an Attorney General is responsible for the court The special tribunals are very different from the Nuremberg Tribunal which was a multilateral military court and not a true international tribunal It was made up of winning allies and was part of a political settlement while the ICTY began its work while the conflict in the Balkans was still raging In Nuremberg most of the defendants were detained and judgment could be rendered in absentia The Allies could count on a team of one hundred prosecutors who had only 11 simple rules of evidence to respect In addition convicts could not appeal the decisions of the Nuremberg Tribunal The establishment of the ICTY and the ICTR reflects a change in the principle of independent prosecutor

 Even though they enjoy greater political autonomy than their counterparts in the Nuremberg Tribunal these tribunals have nonetheless been created by the United Nations Security Council and they depend on it for their funding and execution their decisions There is also remember judicial review since the prosecution must be authorized Nevertheless it took two years of negotiation and preparation to establish them which led many observers to stress the need for a permanent court that would avoid the arduous settlement process and would also allow for more serious incidents circumscribed which would probably not meet the political will necessary to create another special tribunal In 1994 a draft statute for an international criminal court was submitted to the General Assembly and in 1996 the Preparatory Commission for the Establishment of an International Criminal Court was set up A modified version of the proposed statute was submitted in April 1998 on the eve of the five-week conference to be held in Rome in June

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