Prosecution of crimes of appropriation of private property before the International Criminal Tribunal for the former Yugoslavia and the international residual mechanism for criminal tribunals

Abstract

Property rights enjoy protection not only during peacetime, but also in times of armed conflict. However, despite the existence of a well-established legal framework, these rights continue to be violated in armed conflicts around the world. Violent conflicts that took place in the former Yugoslav countries during the last decade of the 20th century were no exception. This thesis analyses crimes of appropriation of private property committed during armed conflicts in the former Yugoslavia and the criminal justice response of the International Criminal Tribunal for the former Yugoslavia (ICTY) and its successor the International Residual Mechanism for Criminal Tribunals (IRMCT) to these crimes. The ICTY and the IRMCT undertook prosecutions of several individuals for breaches of norms of international humanitarian law prohibiting unlawful appropriation of property. These prosecutions generated a comprehensive record of committed crimes and resulted in the establishment of criminal responsibility of a number of perpetrators, including the highest-ranking wartime officials in military, police and political structures. Examination of the ICTY’s/IRMCT’s cases reveals that crimes of appropriation of private property were committed on a large scale and in a variety of conflict-related settings. These cases shed light on the multitude of forms of these crimes, involvement of an array of perpetrators and a variety of categories of unlawfully appropriated property. Research findings also show that these crimes were deeply embedded in systematic violence and utilised as a tool in persecution campaigns. Additionally, the ICTY’s/IRMCT’s cases provide insight into approaches and practices applied in prosecution of crimes of appropriation of property, and this study identifies some of the key lessons learned. Experience of the ICTY/ IRMCT with prosecution of these crimes teaches us, among other things, 1) that prosecutions should encompass crimes against property as a constituent component of the systematic violence, 2) that they should capture different manifestations and dimensions of criminal conduct, a range of actors involved in the commission of these crimes and a variety of modes of perpetration and 3) that crimes must be adequately contextualised within the broader system of violence through the appropriate use of legal characterisations and modes of liability. These good practices can serve as a guide in the process of devising adequate strategic and practical approaches to prosecution of conflict-related crimes of appropriation of property in other jurisdictions. Keywords: unlawful appropriation of property, armed conflict, war crimes, ICTY, IRMCT