Rosalind Sipos
International Criminal Tribunal for the former Yugoslavia (ICTY) (The Hague
After spending the first half of my summer in the Litigation Department of Fraser Milner Casgrain LLP, starting in July, I spent three months working at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) in the Hague.
The ICTY was established to prosecute those allegedly responsible for serious violations of international humanitarian law during the warsin the territory of the former Yugoslavia during the 1990s. It is the first major international tribunal for war crimessince the Nuremburg Tribunal following the Second World War. The ICTY has jurisdiction over crimes against humanity, genocide, grave breaches of the 1949 Geneva Conventions and violations of the laws and customs of war. The Tribunal was established in 1993 by a United Nations Security Council resolution and has concurrent jurisdiction with domestic courts, although it has primacy. The Tribunal has three trial chambers and an appeals chamber which also hears appeals from the International Criminal Tribunal for Rwanda. It also includes the Office of the Prosecutor and its own detention centre for those awaiting or on trial. There are currently nine accused on trial, 45 are in the pre-trial phase, and as of thissummer, there are nine indicted at large. Fifty-five have already received a judgment.
I worked in Trial Chamber III on the Tribunal’s most famous case, Slobodan Milošević. There are a number of important caseseither decided or underway in relation to the development of the international humanitarian law, but the Milošević is widely watched around the world because it is the first case of the prosecution of a former head of state for war crimes before an international tribunal. Milošević is charged with 66 counts based for alleged crimes in Croatia, Bosnia and Herzegovina and Kosovo. Among these charges is a charge for genocide in relation to Bosnia and Herzegovina. Because of the breadth of charges, spanning what are now three countries (Croatia, Bosnia and Herzegovina, and Serbia and Montenegro), it is a massive case,the trial of which has been ongoing since February 2002. We are now in the defence phase of the trial. Milošević has chosen to represent himself, but he is assisted by two assigned counsel.
Doing a judicial clerkship at the Tribunal was an incredibly exciting and rewarding experience. I attended the trial with the purpose of assisting the judges compile, summarise and analyse the evidence; I drafted memos to assist the judges in deliberations and conducted legal research on various points of law that arose. Working in the trial chamber provides the opportunity to work on both issues of fact and law, as well as both the procedural and substantive issues of the case. Every day was intellectually and emotionally challenging and rewarding. Although it is very rewarding producing work that one knows will become part of the judgment, it is also very exciting just to be part of the meetings of the chambers team, hearing what the rest of the team is working on, and getting a picture of how it all fits together. The Tribunal is a very exciting place to work because it is at the cutting edge of the development of international humanitarian and criminal law and everyone who works there is incredibly talented and motivated.
Working at the Tribunal was also an excellent experience because it gave me a first hand understanding of the application of international humanitarian law. One often hears it said that international law does not exist because it is not enforced or enforceable. While it is true that the enforcement of international humanitarian, human rights and criminal law isvery imperfect, the Tribunal is, in my view, an excellent example of it working and being enforced. It is making real people, many of whom once seemed close to invincible to those they governed, answer for their alleged crimes. The accused may challenge the jurisdiction of the Tribunal, but at the end of the day, they are still having to present defences and explanations for their alleged actions in front of victims and the world. Ultimately, if they are found guilty, they are also having to serve prison time for their actions. The ICTY only has jurisdiction over what was one country, for a particular period of time, but it serves as a model which is being followed elsewhere. Working in chambers not only showed me that this momentous Tribunal is in place, but that it is working hard to provide justice, not victor’s justice, but fair trials in pursuit of as close to the truth about events as is attainable from wars which were inevitably foggy and chaotic.
I was inspired by the honesty and sense of purpose with which people from around the world work at the Tribunal, by the strength of those who testified about the atrocities, the desire to move on of those from the Balkan region who work at the Tribunal, and by the power of the community of states when they chose to exert their will. This is an environment to which I hope to return in the course of my career.