That Someone Guilty Be Punished - International Center for ...

the ICTY, the UN Security Council conceived of the Tribunal as a peace-enforcement measure
whose principal contributions would be to deter further atrocities and, quite simply, provide
justice through the very process of prosecuting those responsible for atrocities the world had
failed to prevent. At a time when domestic prosecutions were not seen as credible to the extent
they occurred at all, the ICTY at first largely took the place of domestic legal processes of reckoning
with 1990s era atrocities. Relatively early in the ICTY’s life, the Tribunal began to play a
second role. From 1996 through 2004, the Office of the Prosecutor (OTP) of the ICTY played
a supervisory role in relation to Bosnian war crimes prosecutions by reviewing proposed war
crimes indictments of national prosecutors. Only about midway through the Tribunal’s life did
key international actors fundamentally reconceive the Tribunal’s relationship with domestic
courts in the Balkans. In this third phase, the ICTY became a key catalyst for ramping up
Bosnia’s domestic capacity to prosecute wartime atrocities.
A. The ICTY’s Relationship with Bosnian Courts: Phase I
1. Primacy
In its early years, the ICTY operated in marked detachment from local courts. While seeking
to answer victims’ calls for justice through its own prosecutions, the Tribunal also inevitably
represented a judgment by the international community that local courts in the Balkans were
largely unable to mount credible prosecutions of wartime atrocities themselves.
As we note below, this judgment was amply justified at the time the ICTY was created
and for years after. Legally, however, the Tribunal’s statute from the outset made room
for local courts to play a role complementary to that of the ICTY. In the technical jargon of
international law, the ICTY’s relationship with domestic courts in Bosnia and elsewhere is one
of “primacy”: While the ICTY exercises concurrent jurisdiction with domestic courts in the
former Yugoslavia and elsewhere, those courts must defer to the ICTY if it decides to assert its
jurisdiction in a case. 694 In principle, however, national courts’ displacement in specific cases
need not entail their broader disqualification as partners in the project of rendering justice
for atrocious crimesIndeed, in his report to the Security Council proposing what became the
ICTY Statute, then UN Secretary-General Boutros Boutros-Ghali affirmed the important role
of national courts in the process of accountability: “In establishing [the ICTY],” Boutros-Ghali
said, “it was not the intention of the Security Council to preclude or prevent the exercise of
jurisdiction by national courts with respect to such acts. Indeed national courts should be
encouraged to exercise their jurisdiction in accordance with their relevant national laws and
procedures.” 695 The first president of the ICTY, Judge Antonio Cassese, made a similar point
in the ICTY’s first annual report to the UN Security Council and General Assembly, noting
that the ICTY “does not monopolize criminal jurisdiction over certain categories of offences
committed in the former Yugoslavia.” 696
108 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS