THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

The International Criminal Tribunal for the former Yugoslavia was an independent UN court set up to deal:

with war crimes that took place during the conflicts in the Balkans in the 1990s. During its mandate, which lasted from 1993 – 2017, it irreversibly changed the landscape of international humanitarian law, provided victims an opportunity to voice the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts can be called to account.

The ramifications of its decisions are still very much relevant today. The court prosecuted several people for cultural property destruction – including the shelling of Dubrovnik, and the destruction of the Stari Most bridge at Mostar. (Read more about their prosecutions on the ICTY website). A detailed discussion of the cultural heritage destruction and ensuing prosecutions that occurred during this conflict can be found on the website Targeting History and Memory. Although several individuals were tried for crimes relating to cultural heritage destruction, only one sentence was served. Milošević died before judgment was reached in his case, and the destruction of the National Library was deleted from the list of Scheduled Incidents to the amended Indictments on which the Karadžić and Mladić trials ultimately proceeded. General Strugar was the only one of the four indicted JNA officers who was put on trial for the shelling of Dubrovnik’s Old City. The indictment against Admiral Zec was withdrawn because of lack of evidence. Admiral Jokić admitted his guilt and was sentenced to seven years in prison. Captain Kovačević was found to be unfit for trial and was sent to a closed psychiatric institution in Serbia However, Strugar was sentenced to eight years in prison, although his sentence was reduced to 7.5 years at appeal proceedings.

The Mostar bridge destruction was initially determined by the ICTY to be “a war crime and a crime against humanity, because the destruction of the Old Bridge was accompanied by a “will to terrorize” the civilians who were now completely under siege.”

However, demonstrating the complexity of international law regarding the complexity of assessing military necessity, on 29 November 2017, the Appeals Chamber overturned the decision that the destruction of the Bridge at Mostar constituted persecution of civilians and found the decision to have been based only on military necessity. Those tried were acquitted of the crimes.

“The Appeals Chamber finds, Judge Pocar dissenting, that since the Old Bridge was a military target at the time of the attack, and thus its destruction offered a definite military advantage, it cannot be considered, in and of itself, as wanton destruction not justified by military necessity. In the absence of any destruction of property not justified by military necessity in the Trial Chamber’s legal findings, the Appeals Chamber concludes, Judge Pocar dissenting, that a requisite element of the crime was not satisfied, and therefore overturns the finding that, in this case, the Prosecution proved that destroying the Old Bridge constituted the crime of wanton destruction of cities, towns or villages, or devastation not justified by military necessity. […] the Appeals Chamber finds that no reasonable trier of fact could have found that the HVO forces had the specific intent to discriminate or the specific intent to commit terror when it destroyed the Old Bridge. The Appeals Chamber reverses, Judge Pocar dissenting, the Trial Chamber’s findings that the destruction of the Old Bridge constituted persecution and the unlawful infliction of terror on civilians, and acquits the Defence appellants of these crimes in relation to the Old Bridge.”

ICTY Appeals Chamber Judgement Summary 29 November 2017.
Read more about the Appeals Chamber decision on the ICTY website.

However, Judge Fausto Pocar strongly dissented, as he felt his colleagues had ignored the 1954 Convention on the Protection of Cultural Property, which stipulates that there can only be a waiver for destruction of cultural heritage ” “in cases where military necessity imperatively requires such a waiver”, with military necessity being defined by the absence of alternative to the destruction.” (Appeals Chamber Judgement Volume III, 29 November 2017).