The critique concerning the ICTY can be divided into claims pertaining to 6 main sections:
1. Legal challenges to the Tribunal’s establishment • Some authors have argued, starting from the ICTY's establishment, that the UN Security Council lacked the judicial power to create an ad-hoc tribunal, because the UN Charter does not grant it the right to create judicial institutions at all. The tribunal was established on the basis of
Chapter VII of the United Nations Charter; the relevant portion of which reads "the Security Council can take measures to maintain or restore international peace and security". • Some of the defendants, such as
Slobodan Milošević, claimed that the court had no legal authority and legitimate legal basis because it was established by the
UN Security Council instead of the
UN General Assembly, and so, had not been created on an all encompassing international basis. • The legal criticism has been succinctly stated in a memorandum] issued by Austrian Professor
Hans Köchler, which was submitted to the president of the Security Council in 1999. British
Conservative Party MEP
Daniel Hannan has called for the court to be abolished, claiming it is anti-democratic and a violation of national sovereignty.
2. Allegations of prosecutorial selectivity • Several notable figures spoke out on alleged selectivity of the indictments. •
Carla Del Ponte, the Chief Prosecutor of the tribunal, said in 2021 that the US did not want the ICTY to scrutinise war crimes committed by the
Kosovo Liberation Army (KLA). According to her,
Madeleine Albright, the United States
secretary of state at the time, told her to slow down and "be careful" with the investigation of
Ramush Haradinaj, former leader of the KLA. •
Michael Mandel,
William Blum and others accused the court of having a pro-NATO bias due to its refusal to prosecute NATO officials and politicians for war crimes. Bachmann and Fatić have shown how the prosecution blurred existing ICTY procedures to avoid indicting NATO officials despite the existing
prima facie evidence on war crimes. It did so under intense pressure from NATO representatives. Bachmann and Fatić have shown how the prosecution failed to indict high ranking politicians and militaries mentioned in other indictments as co-perpetrators, because they agreed to assist the prosecution or agreed to testify against other accused persons. According to Hoare, a former employee at the ICTY, an investigative team worked on indictments of senior members of the "joint criminal enterprise", including not only Milošević but also
Veljko Kadijević,
Blagoje Adžić,
Borisav Jović,
Branko Kostić,
Momir Bulatović and others. However, Hoare claims that, due to
Carla del Ponte's intervention, these drafts were rejected, and the indictment limited to Milošević alone. Reducing the indictment charges after the arrest of
Ratko Mladić, Croatian officials publicly condemned chief prosecutor
Serge Brammertz for his announcement that the former Bosnian Serb General would be tried solely for crimes allegedly committed in Bosnia, not in Croatia. • There have also been accusations of bias against
Serbs in the indictment process: • 68% of indictees have been Serbs, to the extent that a sizeable portion of the Bosnian Serb and Croatian Serb political and military leaderships have been indicted. Some authors see this as a reflection of bias and as
anti-Serb sentiment (often by the whole tribunal, although the decisions were only made by the prosecution). • Research published in 2024 by Barry Hashimoto and Kevin W. Gray has shown that precise statistical analysis proves imbalances among prosecutions and convictions against certain ethnic groups, mainly the findings suggest that Serbs were more likely to be convicted and received longer sentences on average. When accounting for possible biases, the results were not entirely conclusive. Though, Hashimoto and Gray state that under reasonable assumptions, harsher outcomes cannot be explained by legal factors alone and, instead, that the possibility that the tribunal has shown favoritism towards non-Serbs and bias against Serbs is still a valid conjecture. • The distribution of crimes among the ethnic communities could also depend on the concept of identity one applies to it. "Serbs" committed most of the crimes during the conflict if one puts all Serbs, holding different citizenships and living in the different parts of the former Yugoslavia (Republic of Serbia, Republika Srpska, Croatia, Kosovo, Montenegro), into one "Serb" basket. They cease to be the main collective culprits if one regards them as members of different communities (Bosnian Serbs, Serbs from Croatia, Serbs from Serbia and Montenegro etc). The same is true for Croats, depending if they are regarded as one nation across national boundaries or members of different communities (Croats from Croatia, Croats from Bosnia or Croats from Montenegro). • Some researchers have also argued while the ICTY was biased, it realistically could not avoid bias due to the highly political and ethnically polarised environment in which it had to work. Usually, as Mirko Klarin has set out, the ethnic or national community, which sided with an accused, regarded their trial as unfair, assuming the accused to be innocent, while it regarded trials against its former enemies as a priori as justified. Under such circumstances, Bachmann and Fatić argue that accusations of bias would be inevitable in the ICTY. Their hesitance created incentives for the creation and expansion of perjurer networks and the creation of false evidence by either people, who wanted to see an accused sentenced (if he or she came from an opposing group) or acquitted (if he or she stemmed from their own ethnic background). Chambers regarded the prosecution of false testimony in court as being outside their core mandate and made contradictory decisions about who should prevent false testimony (the prosecution or the chambers) and how. Instead of initiating sanctions against perjurers, judges were eager to "explain false testimony away" as examples of cultural exceptions or trauma (Combs and Bachmann First of all, the defense was no formal part of the tribunal; the ICTY statute did not mention the defense as an organ of the tribunal and defense lawyers did not have access to the securitized part of the ICTY building, but instead had to work outside, having only a small room in the lobby at their disposal. The prosecution on the other hand, could draw from the tribunal resources when conducting investigations and invoke the authority of the tribunal in contacts with national jurisdictions (demanding access to documents and witnesses and the surrender of suspects), the defense could only rely on other states' goodwill and informal contacts. • Regarding the final case on 29 November 2017 proceeding encompassing six Bosnian-Croat individuals, one of whom,
Slobodan Praljak, in protest in court drank poison and subsequently died, the
Prime Minister of Croatia,
Andrej Plenković, claimed the verdict was "unjust" and Praljak's suicide "speaks of deep moral injustice to the six Croats, from Bosnia and Herzegovina and the Croat people". He criticized the verdict because it did not recognize the assistance and support provided by Croatia to Bosnia and Herzegovina and the collaboration of both armies at a time when the neighbouring state was faced with the "
Greater-Serbian aggression" and when its territorial integrity was compromised, as well it alludes to the link between the then leadership of the Republic of Croatia, while in the previous verdict on Bosnian-Serb
Ratko Mladić does not recognize the connection with Serbia's state officials at that time.
4. Disputes over sentencing and verdicts • Some sentences have been considered too mild. Even within the tribunal there was criticism of comparatively small sentences of convicted war criminals as opposed to their crimes. Danijel Rehak, the head of
Croatian Association of Prisoners in Serbian Concentration Camps, said, "The shock of families whose beloved ones were killed at
Ovčara is unimaginable. The court made a crucial mistake by accepting a statement of a JNA officer to whom Šljivančanin was a commander. I cannot understand that". This was partly due to the need to provide the accused (and the witnesses) with translations in languages they understood (some accused, like Voislav Sesel, tried to sabotage their trials by claiming not to understand the translation, for example when the translator spoke Croatian rather than Serbian), but – as Boas has pointed out – it was also a consequence of the chamber's inconsistent approach to self-representation, the use of
amici curiae and imposed defense counseling for accused persons who refused to accept duty counseling without having their own defense lawyers. In some cases – the Milošević trial is one example – the health conditions of an accused forced the judges to lower the workload for the accused and prolonged the trial beyond the anticipated amount of time.
6. Assessments of the Tribunal’s impact and legacy • Critics have questioned whether the tribunal exacerbates tensions rather than promoting reconciliation, which had been one of the main postulates of the Tribunal. The project also showed how the ICTY had inclined judicial and administrative reform in some countries under its jurisdiction, either in order to curb the ICTY's principle of primacy (the ICTY could take over any suspect it wanted from a country under its jurisdiction, but governments usually tried to convince the ICTY they could try their suspects themselves) or to adopt to the ICTY completion strategy, under which domestic judiciaries could take over cases from the ICTY but needed to prove they could cope with them. While some of these policy changes (triggered by the ICTY, ICTR and the ICC) remained ambiguous in other parts of the world, they usually led to lasting change in the countries of the former Yugoslavia, because they were bolstered by pressure and support from the European Union and the US (Kemp, Ristić). • Allegations of censorship: • In July 2011, the Appeals Chamber of ICTY confirmed the judgment of the Trial Chamber which found journalist and former tribunal's OTP spokesperson
Florence Hartmann guilty of contempt of court and fined her €7,000. She disclosed documents of FR Yugoslavia's Supreme Defense Council meetings and criticized the tribunal for granting confidentiality of some information in them to protect Serbia's "vital national interests" during
Bosnia's lawsuit against the country for genocide in front of the
International Court of Justice. Hartmann argued that Serbia was freed of the charge of genocide because ICTY redacted certain information in the council meetings. Since these documents have in the meantime been made public by the ICTY itself, a group of organizations and individuals, who supported her, said that the tribunal in this appellate proceedings "imposed a form of censorship aimed to protect the international judges from any form of criticism". The debate was scheduled after the convictions of
Ante Gotovina and
Mladen Markač for inciting war crimes against Serbs in Croatia were overturned by an ICTY Appeals Panel in November 2012. • The ICTY president
Theodor Meron announced that all three Hague war crimes courts turned down the invitation of
UNGA president to participate in the debate about their work. The
President of the General Assembly, Jeremić, described Meron's refusal to participate in this debate as scandalous. He emphasized that he does not shy away from criticizing the ICTY, which has "convicted nobody for inciting crimes committed against Serbs in Croatia."
Tomislav Nikolić, the president of
Serbia, criticized the ICTY, claiming it did not contribute but hindered reconciliation in the former Yugoslavia. He added that although there is no significant ethnic disproportion among the number of casualties in the
Yugoslav wars, the ICTY sentenced Serbs and ethnic Serbs to a combined total of 1150 years in prison while claiming that members of other ethnic groups have been sentenced to a total of 55 years for crimes against Serbs.
Vitaly Churkin, the ambassador of
Russia to the UN, criticized the work of the ICTY, especially the overturned convictions of Gotovina and
Ramush Haradinaj. == See also ==