In the first international war crimes proceedings since the Nuremberg and Tokyo trials after World War II, the International Criminal Tribunal for the Former Yugoslavia (ICTY) brings Bosnian-Serb Dusko Tadic to trial in The Hague, Netherlands. He is being tried for crimes which allegedly occurred in and near a Serb-controlled Bosnia prison camp in the spring and summer of 1992.

Pictures of emaciated and battered Muslim prisoners at the Omarska prison camp shocked the world. For many, the images of Omarska were the first proof of the alleged Serb policy of ethnic cleansing in the Balkan conflict.

This tribunal was created by the U.N. Security Council in 1993. The pact to create the ICTY was the result of intense wrangling among the Security Council members. To the ICTYs critics, it is merely an ad-hoc creation; one designed to ease the conscience of the Western powers after they dithered during the Balkan war. To its supporters, the ICTY represents the most concrete step in the half-century since Nuremberg toward creating a permanent international criminal court to secure global enforcement of basic human rights. To garner the support of U.N. Secretary General Boutros Boutros Ghali, the resolution creating the ICTY also empowers it to investigate and prosecute war crimes in Rwanda. Those proceedings are not expected to begin until mid-summer, at the earliest.

The ICTYs first indictment was issued November 11, 1994, of Dragan Nikolic, a Bosnian Serb who is alleged to have been the commander of a small prison camp in eastern Bosnia. The second and third indictments were issued February 13, 1995. One indictment charged 19 Serbs with committing various atrocities at the Omarska camp. The second indictment issued that day charged Tadic and Goran Borovnica with crimes stemming from their alleged persecution and deportation of the civilian Muslim population as well as crimes committed at Omarska. In the first group of the February 13 indictees is Zeljko Meakic, the alleged commander at Omarska, who is charged with the gravest crime, genocide. Borovnica and Meakic remain at large.

To date, the ICTY has issued indictments against 57 men. The breakdown is as follows: 43 Bosnian Serbs (such as Tadic); three Serbs who are former Yugoslav Army officers; eight Bosnian Croats; and three Bosnian Muslims. Two, Zdravko Mucic, a Croat, and Tadic, are in custody in an ICTY-operated annex to a Dutch prison near the Tribunal. (The unit can house up to 24 suspects.) Another Croat, Tihomir Blaskic, is under house arrest at an undisclosed location in the Netherlands. Two more suspects are in Germany awaiting extradition. Another suspect, Serb general Djorde Djukic, was released from detention for humanitarian reasons because of his terminal illness.

In early May, the Bosnian government announced that it had detained two Muslim indictees, Hazim Delic and Esad Landzo, and would extradite them to the ICTY. Delic, a deputy to Mucic at the Celebic camp which detained Serbs, has been charged with four murders. Landzo, a guard at that camp, is charged with five murders.

Now the first defendant is on trial, accused of torturing and killing Muslim refugees in Omarska. A panel of three judges will decide Tadics guilt. The standard for guilt, like that of U.S. courts, is beyond a reasonable doubt. However, it only requires the votes of two (of the three) judges to convict Tadic. It will fall to observers around the world to decide whether those accused of heinous crimes can be tried fairly by an ad-hoc, temporary, international judicial body.

Legal Basis for the Tribunal
The ICTY is not to be confused with the World Court, more formally known as the International Court of Justice. The World Court hears disputes between nations. By contrast, the ICTY prosecutes and tries individuals. Both happen to be in The Hague, but they are in two different buildings, with two different staffs and missions.

The U.N. Security Council established the ICTY under Chapter VII, Article 39, of the U.N. Charter which gives the body power to take measures that can help bring about peace:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures should be taken...to maintain or restore international peace and security.

The charter suggests a few possible measures, such as economic blockades and peacekeeping missions, but the Secretary General urged the Security Council to interpret this provision more broadly. He asked the Security Council to create the tribunal as a method for restoring international peace.

Contained in this notion is one of the ICTYs principal challenges: Is bringing justice to the events in the former Yugoslavia consistent or inconsistent with establishing the peace? The Tribunals chief prosecutor, Richard Goldstone, has long maintained that there can be no peace without justice. Others, including members of the U.S. Departments of State and Defense, believe that the ICTYs work could well jeopardize the fragile peace in the former Yugoslavia.

The Court's Structure
The tribunal consists of three parts: the chambers, the prosecutor and the registry.

Chambers: The chambers consist of 11 judges elected by the U.N. General Assembly from a list submitted by the Security Council. Three are from Asia, two from Europe, two from Africa, two from North America, and one each from Latin America and Australia. Two of the judges are female, including the chief presiding judge at the Tadic trial, former U.S. District Court Judge Gabrielle Kirk McDonald, who is also African-American. The president of the tribunal is Judge Antonio Cassesse of Italy.

Each of the two trial chambers has a three-judge panel. The remaining five judges serve as an appellate chamber. It only takes a majority vote by the three-judge panel to convict a defendant. There is no jury, and the standard of proof is beyond a reasonable doubt.

Office of the Prosecutor: Headed by South African Richard Goldstone. The office has a staff of about 150, including 47 war crimes investigators, and is housed in the same building as the ICTY. Generally, prosecutors are loaned to the ICTY by their governments. Goldstone will leave his post in October to resume his seat on the Supreme Court of South Africa. His replacement is Louise Arbour, a judge on leave from the Ontario Court of Appeal.

Registry: This office acts the repository for the tribunal. It is a combination of a court clerk's office and archive. The registry will become the final home for all evidence the tribunal uncovers.

Overall, the ICTY employs about 285 people from 37 different countries. The largest bloc of employees comes from the U.S. The 1996 budget is $40.8 million.

The Tribunal's Law, Procedures and Rules of Evidence
The ICTY's procedure and evidence rules are a hybrid of the common law and civil law systems. In common law systems such as the U.S., jury trials are the norm, judges are largely neutral in proceedings, witnesses may be cross-examined, and complex rules govern admissibility of hearsay and other evidence. Civil law systems generally do not provide for juries, and judges play an active role in eliciting testimony directly from the witnesses. Those systems tend to favor allowing evidence before the court. This aspect of the ICTY will no doubt be a hot topic of discussion.

Personal Jurisdiction: The tribunal is limited in its personal jurisdiction. It only can try cases from the former Yugoslavia and Rwanda. In addition, since the judicial body is created as a specific method for bringing about a specific goal under the UN Charter dictates, the General Secretary recommended that the tribunal be temporary: As an enforcement measure...the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia...

Concurrent Jurisdiction with national courts: The ICTY's jurisdiction is not exclusive. It has concurrent jurisdiction with national courts, although the Security Council asserts that it has primacy over national courts. This allows the ICTY to request that national courts discontinue their proceedings in deference to the ICTY. This is precisely how Dusko Tadic wound up being tried at The Hague instead of in a German national court.

There is a double jeopardy clause, but the ICTY can try someone for the same crime that has been heard by a national court if the ICTY determines that the alleged crime was classified as an ordinary act under national jurisdiction, or that the national court proceedings were not impartial or independent and were designed to shield the accused from the reach of international law.

No Trials In Absentia/Rule 61 Hearing: The ICTY cannot try defendants in absentia, but it does have a provision for dealing with indicted suspects who cannot be brought to trial. The provision is contained in Rule 61 of the tribunals procedures. A Rule 61 proceeding allows the prosecutor to present evidence publicly and call witnesses. The stated purpose is to reconfirm the indictment against the defendant and to permit the judges to issue an international arrest warrant. With this warrant, any nation can be asked to extradite the accused to the tribunal's custody. If a nation chooses not to comply, Security Council sanctions can follow.

As a practical matter, Rule 61 serves two functions. First, it provides a documentary account of alleged acts. Many argue that creating a formal record of war crimes is almost as important as punishing an individual. Second, it does increase pressure on alleged war criminals. While many will be safe in the hills of Serbia or Bosnia, they will not be able to travel out of the country without fear of detention by a U.N. member.

Sentencing: The maximum punishment is life in prison. There is no death penalty. Once sentenced, defendants will serve out their terms in one of ten nations ( including Germany, Holland, Pakistan, the Scandinavian counties, and Muslim-controlled Bosnia) approved by the tribunal to house prisoners. Interestingly, once a criminal passes into the prison system of one of these countries, the ICTY no longer has jurisdiction. In other words, it is theoretically possible that the ICTY could sentence someone to 25 years in prison, but once extradited to a particular country, they could be released immediately.

Subject Matter Jurisdiction: The tribunal is authorized by the Security Council to prosecute actions which fall in one of four areas.

• Grave breaches of the Geneva Conventions of 1949
• Violations of law and customs of war
• Genocide
• Crimes against humanity

Tadic is charged with everything except genocide, which is the most serious accusation.

Grave breaches of the Geneva Conventions of 1949 is an amalgamation of the four Geneva Conventions approved in the wake of World War II. The Geneva Conventions generally set guidelines for the treatment of civilians in detention camps and military prisoners of war.

Violations of the law or customs of war is derived primarily from the Hague Convention of 1907 and the Nuremberg Charter. Essentially, this charge is a catchall for violating international standards of warfare. For example, the use of poisonous weapons falls under this category. Also included is the destruction of private property or cultural institutions not justified by military necessity.

Genocide is also derived from a post-World War II international treaty, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The charge lays out a number of actions that may invite the charge, but makes the defining characteristic intent. Thus, the definition of genocide is acts committed with the intent to destroy, whole or in part, a national, ethnical, racial or religious group. Among the acts listed are killing, and measures intended to prevent births within a group.

Crimes against humanity include the commission of several acts, such as killing, imprisonment, and torture, during armed conflict against a civilian population. The charge specifically says that the conflict can be either national or international in character. This is important because many Bosnian Serbs characterize the war in the Balkans as a civil war, not an international conflict. While this representation, if proven, can free a defendant of some charges (such as violations of the law or customs of war), crimes against humanity is not one of them.