The role of the international criminal tribunal for the former Yugoslavia to the evolution of international humanitarian law: the application of the principles of distinction and proportionality

Abstract

The International Criminal Tribunal for the Former Yugoslavia(ICTY) played a significant role to the evolution of the International Humanitarian Law, especially through the application and the interpretation of the core principles of distinction and proportionality. These principles rule the targeting process during an armed conflict to distinguish between combatants and civilians, military objectives and civilian objects and ensure that military attacks do not cause excessive harm to civilians. The ICTY examined many complex issues, including the classification of conflicts as international and non-international, the distinction between civilians and combatants and the treatment of dual-use objects, and established important jurisprudence on indiscriminate and disproportionate attacks. Key cases such as Tadić and Galić determined the legal framework for the applicability of International Humanitarian Law in both international and non-international armed conflicts. The Tribunal also addressed other controversial issues, such as the use of unlawful weapons, the destruction of cultural and civilian properties, the direct, deliberate and indiscriminate attacks on civilians, trying to balance between the principle of military necessity and the principle of humanity. Although the ICTY achieved to promote accountability for war crimes, even of high-ranking political and military figures and to define key legal concepts, it was heavily criticized for being subjective, politicized and inconsistent, particularly in its assessment of proportionality. The Tribunal had a dual role; on one side, the prosecution of war crimes and on the other side, the evolution of the IHL by setting a strong legal precedent. Its legacy continues to influence the prosecution of modern war crimes, the international justice mechanisms, and the promotion of human rights and justice in wartime.