Nivel de compañerismo o camaradería

In 1993, the ICTY was the first judicial organ created by the Security Council after the establishment of the International Military Tribunals in Nuremberg and Tokyo.18 The

15 See De Than C and Shorts E International Criminal Law and Human Rights (2003) 5.

16 The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06. The conscripting and enlisting of child soldiers under the age of 15 is the first offence to be punished before the ICC. See Park A S J ‘Child Soldiers and Distributive Justice: Addressing the Limits of Law’ (2010) 53 Crime, Law and Social Change 335. For a detailed overview of the Lubanga case with a special focus on child soldiers, see

Blattmann R in Werle G Fernandez L and Vormbaum M (eds) Africa and the International Criminal

Court (2014) 35-48; Graf R ‘The International Criminal Court and Child Soldiers: An Appraisal of the Lubanga Judgment’ (2012) 10 Journal of International Criminal Justice; Jenks C ‘Law as Shield, Law as Sword: The ICC’s Lubanga Decision, Child Soldiers and the Perverse Mutualism of Participation in Hostilities’ (2013-2014) 3 University of Miami National Security and Armed Conflict Law Review. For a discussion of the Union of Congolese Patriots under the rule of Thomas Lubanga, see Vélez S ‘Ituri: The Pursuit of Justice’ (2001) http://www.lubangatrial.org/2011/02/10/ituri-the-pursuit-of-justice/ (accessed 1 September 2011).

17 London states that: ‘The cost in punishment for using child soldiers or supporting those who do must become so astronomical that it is no longer worth it’. See London C One Day the Soldiers Came: Voices of Children in War (2007) 181.

18 The ICTY was established by UN Security Council Resolution 827, adopted under Chapter VII of the UN Charter. See United Nations Security Council Resolution on the Establishment of an International Criminal Tribunal for the Former Yugoslavia S/RES/827 (25 May 1993). The ICTY is situated in The Hague. For a general discussion of the ICTY see Brown B S ‘The International Criminal Tribunal for the Former Yugoslavia’ in Bassiouni M C (ed) International Criminal Law: Volume 3 International

Windell Nortje LLD Thesis ₁₅₅ ICTY has jurisdiction over the violations of the laws and customs of war, including grave breaches of the 1949 Geneva Conventions, genocide and crimes against humanity perpetrated from 1 January 1991 in the territory of the former Yugoslavia.19

War and ethnic conflict occurred in the former Yugoslavia over a sustained period. Ethnic tensions increased with the death of Josip Broz Tito in 1980 and finally ended with the signing of the Daytona Peace Accord in 1995.20 Approximately 4,000 children participated in the conflict.21 It was reported that children as young as 10 years old participated in the war.22 The ICTY considered the matter of juvenile prosecution, but not in any great detail. For instance, in a Security Council Report of 1993, paragraph 58 states that: ‘The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as

Enforcement 3ed (2008) 69; De Than C and Shorts E International Criminal Law and Human Rights

(2003) 280; Sluiter G ‘Ad Hoc International Criminal Tribunals (Yugoslavia, Rwanda, Sierra Leone)’ in

Schabas W A (ed) The Cambridge Companion to International Criminal Law (2016) 117-136; Tolbert

D ‘Children and International Criminal Law: The Practice of the International Tribunal for the Former Yugoslavia (ICTY)’ in Arts K and Popovski V (eds) International Criminal Accountability and the Rights of Children (2006) 147; Werle G and Jessberger F Principles of International Criminal Law 3ed (2014) 14-15.

19 Although the Tribunal’s jurisdiction is effective from 1991, it has mainly focussed on crimes

committed between 1992 and 1995. See Tolbert D in Arts K and Popovski V (eds) International

Criminal Accountability and the Rights of Children (2006) 148; Werle G and Jessberger F Principles of International Criminal Law 3ed (2014) 15.

20 See Werle G and Jessberger F Principles of International Criminal Law 3ed (2014) 15. Also see Brown B S in Bassiouni M C (ed) International Criminal Law: Volume 3 International Enforcement 3ed (2008) 69; Sluiter G in Schabas W A (ed) The Cambridge Companion to International Criminal Law (2016) 118-123. The Final Report of the Commission of Experts concludes that approximately 200,000 Yugoslavs were killed, 50,000 tortured, 20,000 raped, while there were 700 concentration camps and 150 mass graves. See Final Report of the Commission of Experts Pursuant to Security Council Resolution 780 (1992) U.N. Doc. S/1994/674 (27 May 1994). Between 1991 and 1995, approximately 2.5 million people were displaced from or within Croatia and Bosnia-Herzegovina. There was no distinction between civilians and soldiers and therefore many civilians died, while countless women and adolescent girls were raped. See Beasley R ‘Hidden Casualties of Conflict’ in Amnesty

International (ed) In the Firing Line: War and Children’s Rights (1999) 41.

21 Coalition to Stop the Use of Child Soldiers ‘Global Report on Child Soldiers 2001’ (2001)

http://www.child-soldiers.org/library/global-reports?root_id=159&directory_id=215 (accessed 31

July 2011) 81.

22 Serbian paramilitaries infamously used children as young as 10 during the conflict in Bosnia and Croatia between 1992 and 1995. See Coalition to Stop the Use of Child Soldiers (2001)

http://www.child-soldiers.org/library/global-reports?root_id=159&directory_id=215 (accessed 31 July 2011) 81.        

Windell Nortje LLD Thesis ₁₅₆ minimum age’.23 In accordance with its mandate, however, the ICTY has primarily focussed on the prosecution of the military and political leadership who committed offences during the conflict in the former Yugoslavia.24 Even in the lower level

investigations, the ICTY does not investigate children as perpetrators, while domestic courts have also not prosecuted juveniles who have committed crimes during the war.25

Moreover, there is no evidence of children as perpetrators in the ICTY’s jurisprudence or in its investigations generally.26 The Statutes of the ICTY do not contain a provision regulating the minimum age of criminal responsibility.27 It is clear from the above that the ICTY never had any intention to prosecute children as perpetrators of war. It focusses on those individuals who planned the offences committed in the former Yugoslavia, while an age of criminal responsibility is not included in the ICTY Statute. Thus, as in the case of the ICC, the ICTY does not deal with the issue of prosecuting juveniles for the commission of international crimes.