ABSTRACT
In the 1990's, both the former Yugoslavia and Rwanda, completely separately, experienced vicious civil and ethnic conflicts in which many atrocities were committed. These included genocide, large-scale executions, expulsions of groups of people from varying ethnic or religious backgrounds, mass rapes and gross sexual abuses, often on a systematic and planned basis. Hatred expressed through vile acts on former neighbours was widespread. In the midst of this chaos, international law eventually intervened. Diplomatic negotiations led to investigations culminating in reports of the United Nations' Secretary-General. These reports recommended the establishment of the first ad hoc tribunals seen internationally since those at Nuremberg after World War ll. 1 The UN Security Council set up the ad hoc tribunals-the international Criminal Tribunal for the former Yugoslavia (lCTY) and the International Criminal Tribunal for Rwanda (lCTR)- pursuant to its power to decide on measures necessary to maintain or restore international peace and security. The Statutes ofboth tribunals differ and run on separate court systems: the ICTY in the Hague and the ICTR in the Hague and
Arusha. However, both share a common prosecutor and a common Appellate Chamber. Now in the '"midlife' stage of the [ICTY's] existence"/ and as the International Criminal Court (ICC) prepares its prosecutions, analysis is presented in this article of the jurisprudence ofthese two ad hoc tribunals. The analysis is specific, focusing only on the tribunals' developing jurisprudence on the definition oftorture and the requirement or not for public official involvement. A shift - highlighted by some scholars recently-is evident in this definition of torture. 3 Through case law analysis from the ad hoc tribunals-and it is mainly from the ICTY-it is shown how individual responsibility for one's actions, irrespective of who you are, is paramount. This analysis is used to question the nature of individual protection and responsibility, particularly the state's role in that, at international criminal and international human rights law. Although the focus rests on the ad hoc tribunals' jurisprudence, a brief overview will be given of, first, the position of torture under international law and how it is defined in International Conventions and then, secondly, how these definitions have been developed by human rights' courts.
