The war in the former Yugoslavia produced many highly trained and experienced combatants, some of whom engaged not only in a variety of organized criminal activities such as the illicit trade of natural resources, trafficking and corruption, but also war crimes. In the post-war environment various criminal groups took advantage of post-conflict transition conditions which enabled them to be transformed into legitimate legal entities. The failure to investigate and hold to account those involved in criminal activity meant that demobilized soldiers turned to highly profitable, legally constituted private military and security companies (PMSCs). This is coupled with poorly designed security sector reforms that often fail to enhance effective and accountable security that is respectful of human rights. In recent years, similar transformations of many former combatants and criminal groups into legitimate PMSCs around the globe have raised new concerns about their growing activities across different sectors. This article uses the former Yugoslavia as an example from which to highlight some of the increasingly common problems posed by the creation of private military and security providers globally, as a result of the current uncoordinated processes to prevent armed conflicts. The article reflects on the need to avoid smart sanctions and use other foreign policy tools, while calling for an integrated approach to security sector reform and transitional justice that is necessary for sustainable peace.

The international criminal courts and tribunals have heard thousands of witnesses in cases of extreme complexity and breadth. Their evidentiary record is overwhelming, with live witness testimony standing out as one of its defining features. Keeping in mind the arguments and policies of judicial efficiency and fairness, this article empirically examines the trends and patterns in viva voce witness numbers at the International Criminal Tribunal for the Former Yugoslavia (ICTY), for Rwanda (ICTR), and the International Criminal Court (ICC). We observe clear differences between institutions and individual cases, and discuss the underlying reasons for such divergences. As well as providing a general overview, we demonstrate the complex interaction between case-related characteristics, institutional and situational contexts, and the number of witnesses called at trial.

This article examines how defendants on trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) appropriate the tribunal as a platform for national myth and group making. Specifically, the article analyzes Radovan Karadžić and Vojislav Šešelj's “performances” at The Hague in order to highlight the particular ways in which the defendants craft and mobilize the nationalist narrative. The article introduces the phenomenon of “the war criminal cult” and traces three stages of its production, including the defendants' collectivization of guilt, epitomization of The Hague as the ultimate enemy of the nation, and construction of “Serbs” as the biggest victims of international justice and of themselves as martyrs befallen with the task of defending the dignity of the nation. The “war criminal cult” is thus “made” in conversation with the “imperial West” in a collective narrative that contests the legitimacy and the intention of The Hague while disguising individual responsibility.

In the decision on the second Genocide case (Croatia v. Serbia) the ICJ did not deviate from its ruling of 2007 (Bosnia-Herzegovina v. Serbia and Montenegro) in matters of evidence. A comparison between the two cases nevertheless shows subtle but interesting nuances. Whereas in the first Genocide case the Court was confronted with a ICTY finding that a genocide had indeed been committed in Srebrenica in July 1995, in the present case the ICTY Prosecutor had not even indicted any Serbian or Croatian organ of such a crime. The ICJ was able to find the actus reus of genocide in many instances, both on the part of Serbia and Croatia, but it found that neither party had been able to prove the existence of the mens rea, either by relying on a pattern of conduct, or even by relying on the transcript of a governmental meeting. This throws a disquieting light on the actual capacity of the Court to deal with claims of commission of genocide, as distinguished from claims of lack of prevention or repression.

The long-awaited verdict of the International Court of Justice in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between Croatia and Serbia brought to an end the speculations as to whether or not a finding of genocide would be reached. After lengthy considerations on the genocidal actus reus, the Court dismissed all the claims of genocide, based on the lack of genocidal intent. If this conclusion is perfectly in line with established law and case law, its wider readability and acceptability outside of the legal microcosm is perhaps doubtful. How can a judgment which recognizes that acts falling within the list of proscribed genocidal acts have been committed but which then refutes their qualification as genocidal due to a lack of specific intent be explicable to those who lost their loved ones in what they feel was an enterprise of destruction?

The Gotovina case presented the International Criminal Tribunal for the former Yugoslavia (ICTY) with a unique opportunity to adjudicate on issues connected with the law of targeting and international humanitarian law (IHL) in a criminal context. This opportunity was especially important given the fact that legal issues arising out of complex, intense combat situations have only rarely been adjudicated. Although Gotovina was not formally charged with carrying out unlawful attacks on civilians, attacks by Croatia on four towns over the course of ‘Operation Storm’ were the focus of the proceedings. This led both Trial and Appeal Chambers to deal with issues related to the law of targeting such as classification of military objectives, proportionality, and the intent behind an attack. This article argues that the judges failed to take full advantage of the opportunity to discuss these issues. They failed consistently to articulate the legal reasoning behind their findings; they failed to explain the branch of law on which any of their substantive determinations were based; and, perhaps most importantly, they did not explain the relationship between IHL and criminal law and how IHL is to be applied in a courtroom.

Among the increasingly frequent acts of non-compliance with, and grievous violations of, international humanitarian law around the world, especially in non-international armed conflicts, attacks on objects and persons enjoying special protection, and their abuse, as well as the misuse of the distinctive emblems of the Red Cross and Red Crescent, come as no surprise. Although a repressive approach to the problem – through the prosecution and punishment of perpetrators – cannot completely prevent such occurrences, an effective and appropriate judicial stigmatisation can significantly contribute to making them as rare as possible. In this regard, the court proceedings held before the War Crimes Chamber in Belgrade and the International Criminal Tribunal for the former Yugoslavia in The Hague in connection with the events in and around the Vukovar Hospital and Ovčara farm have provided an appropriate judicial response. This is notwithstanding the fact that, at least for now, not all perpetrators have been prosecuted for their acts (or failure to act) at the time of the commission of these grave crimes.

This article investigates the difficult issues that have been raised in relation to witness tampering before international criminal courts. This is a significant problem for international criminal courts and tribunals, but has not yet been the subject of a great deal of comment. The article begins by setting out the difficulties that the courts and tribunals have encountered, through a discussion of their judgments on this point. It then turns to the black-letter law that the courts and tribunals have adopted to attempt to counter witness tampering. However, a description of the law alone cannot give a full picture of the difficulties that witness tampering, and protecting witnesses from it, present to international criminal courts and tribunals. These are explained, in part, through the fact that international criminal courts and tribunals operate in the absence of an effective international enforcement mechanism. This, and the conflict/post-conflict context against which those bodies tend to operate, is discussed, in part through the lens of the complementarity paradox identified by Paulo Benvenuti. The article concludes that although lessons can be learned from domestic approaches, the main limitation is the absence of any enforcement power at the international level, and that it is unlikely that one is likely to be created soon.

A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases – the identification of the protected group and its members – resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the ‘building blocks’ of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review, and (2) to analyse the consequences of the consistent application of this model for the identification of the protected groups and their members.