Suchergebnisse

Three are many reasons why a person may be reluctant to appear before a court as a witness. This article concerns the ability of the International Criminal Tribunal for the Former Yugoslavia to compel witnesses to attend and also to answer questions when they are before the Tribunal. This second issue is more accurately represented as an ability to impose a sanction for the refusal to answer a question. This in turn raises the important question whether there are circumstances in which an individual may legitimately (i.e. without sanction) refuse to answer.

Joint criminal enterprise (JCE) is the institute first applied by the International criminal tribunal for the former Yugoslavia (ICTY) in the Tadić case, and thereafter further shaped through the practice of the ICTY despite the fact that JCE as a form of individual responsibility is not mentioned anywhere in the Statute of ICTY, neither implicitly nor explicitly. Although today there is no doubt that the Joint criminal enterprise is an institute of international criminal law, which was very often applied in the practice by both ICTY and other international ad hoc tribunals, the serious remarks to this institute do not abate. It's pointed out that this is an institute that "was created" to ensure the conviction of the defendants, which procedurally affects the prosecution, which is relieved of the burden of proving criminal responsibilities and the specific roles of each of the participants in the JCE. Besides that, at the time when this doctrine was formulated, it was not entirely clear whether it was a form of commission or a form of complicity. Only a couple of years later, in the Milutinović et al. case, the ICTY stands out that the liability based on the JCE doctrine, in fact, is a responsibility for the commission, which further compromised this doctrine. Questionless, the application of the Joint criminal enterprise doctrine in practice leads to serious violation of the fundamental principles of contemporary criminal law. With general review of the Joint criminal enterprise doctrine, in this piece of work, the author considers one case of conviction under the third (often referred to as "extended") form of JCE, in order to point out the key problems which this doctrine produces in practice.

In May 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the past five years, the ICTY has shifted from an institution lacking a basic structure, staff and other resources—not to mention indictees in custody—to a fully functioning tribunal pursuing (as of December 1998) twenty-two public indictments against fifty-six indictees; twenty-eight indictees are in custody, awaiting trial or serving a sentence; five have been convicted; one has pleaded guilty; one has been acquitted; several trials are under way; and several more are in pretrial stages. Although its ultimate success is not yet guaranteed, the ICTY is coming of age as a credible forum for the international prosecution of war crimes within its jurisdiction. The following account describes the ICTY's current status, analyzes its jurisprudence (as seen in its most significant decisions), and briefly assesses its place in the development of international humanitarian law.

On 29 November 1996 Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia ("the ICTY") handed down its sentence in the case of Dražen Erdemović. This was a decision of historie significance for a variety of reasons, the most obvious being that it was the first sentence passed by an international war crimes tribunals, applying international law, since the International Military Tribunals which sat at Nuremberg and Tokyo between 1945 and 1948; it was also the first time a truly international tribunal bas concluded the trial of a minor war criminal, as opposed to a senior military commander or political leader. In addition, it was the first sentence handed down by the ICTY, which has been plagued sincc its first days of operation by problems in securing evidence and witnesses, not to mention the presence of the accused. Now the ICTY has shown, in the face of widespread criticism and accusations of impotence, that it can actually perform the task assigned to it. The doubt about such a judgment is that the Erdemović case is not perhaps the best basis on which to assess the ICTY's performance, so singular were the accused's conduct and, indeed, the circumstances in which he found himself before the Tribunal. Essentially, had it not been for the accused's voluntary surrender and his extensive co-operation with the Office of the Prosecutor, and the co-operation of the judirial authorities in the Federal Republic of Yugoslavia (Serbia and Montenegro) in transferring Erdemović to The Hague, the case would probably never have happened at all.

Le Tribunal pénal international pour l'ex-Yougoslavie a été créé en 1993 en application de décisions prises par le Conseil de sécurité sur la base du Chapitre VII de la Charte des Nations Unies. En vertu de son mandat statutaire, le Tribunal est habilité à instruire des dossiers et à engager des poursuites contre les auteurs de toutes les violations graves du droit international humanitaire commises sur l'ensemble du territoire de l'ex-Yougoslavie depuis 1991. Jusque récemment, les activités du Tribunal ont porté essentiellement sur des crimes commis entre 1991 et 1995 en Croatie et en Bosnie-Herzégovine. L'accent a été mis publiquement sur le Kosovo à partir de 1998, lorsque le procureur a constitué une première équipe chargée de mener une enquête portant essentiellement sur ce territoire. Le rôle du Tribunal au Kosovo repose sur des bases juridiques solides étant donné son mandat et sa compétence statutaire, qui est limitée sur le plan géographique mais non dans le temps. Toutefois, il ne fait pas de doute que, si l'on s'en tient aux faits, la crise du Kosovo a ouvert un nouveau chapitre de l'histoire du Tribunal.

The International Criminal Tribunal for the former Yugoslavia ("the International Tribunal") was established over four years ago in response to the mass killings, widespread and systematic rape and "ethnic cleansing" being practised in the former Yugoslavia on a scale and of a ferocity not seen on the European continent since the end of the Second World War. The United Nations Security Council considered that this situation constituted a threat to international peace and security. It therefore established the International Tribunal as a subsidiary judicial organ, in the belief that this would help halt and redress such violations.