The Tribunal and the ICC: Do Precedents Matter?

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INTRODUCTION

Conventional wisdom has it that the success, or failure, of the ad hoc Criminal Tribunal for the Former Yugoslavia (the Tribunal) will have a critical impact on the establishment of a permanent International Criminal Court (ICC).(1) The exact meaning of "success" is rarely defined: it usually denotes the Tribunal's ability to actually try persons indicted for crimes within its jurisdiction. This definition of success fails, however, to properly delineate the Tribunal's responsibility for bringing war crimes suspects to justice. It overlooks the fact that the Tribunal is not equipped with the means of physically apprehending indictees and that this task belongs to the international community, in the broadest sense of the term. Thus, the question that may fairly be asked with respect to the Tribunal is whether it is doing all it can to fulfill its mandate. If the answer is affirmative, the real issue becomes who should be held responsible for the outcome of the Tribunal's work. Part I of this Article will examine the respect*e roles of the international community(2) and the Tribunal in ensuring the Tribunal's success, and the precedential value of the Tribunal for the creation of a permanent International Criminal Court.(3) Part II submits that the emerging profile of an ICC is so different from that of the ad hoc Tribunal that the very notion of the latter's success as being critical to the former may be called into question.(4)

I. SUCCESS IS EQUIVALENT TO STATE COOPERATION

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, as it is officially called, was established by the United Nations Security Council (the Security Council or the Council) in May 1993.(5) Its creation was essentially prompted by two considerations. First, by 1993, it had become obvious that the parties to the Yugoslav conflict were unwilling, and in the case of Bosnia and Herzegovina, unable to bring to justice persons responsible for the egregious crimes that were taking place. Second, by establishing the Tribunal, the Security Council hoped to deflect criticism for its reluctance to take more decisive action to stop the bloodshed in the former Yugoslavia. In both political and legal terms the Council's action was groundbreaking. With the Cold War over, it became possible for its members to reach political agreement on a measure that would have been unthinkable only four years earlier. In this context it should be mentioned that the Council's resolve in creating the Yugoslav Tribunal, replicated only once since then,(6) gave rise to accusations of selective justice that are voiced to this day. The need to avoid such selectivity in the future is one of the major arguments advanced by proponents of establishing a permanent International Criminal Court.

From a legal standpoint, the Security Council's decision to create an ad hoc Tribunal was also without precedent. The Council first indicated its determination to create a judicial body in February 1993, when it requested that the United Nations Secretary-General submit for its consideration a report on how such a Tribunal might be established, accompanied by "specific proposals."(7) On May 25, 1993, after having considered the Secretary-General's report which included a statute for the Tribunal,(8) the Security Council formally brought the Tribunal into existence by means of Resolution 827.(9) As is well known, the Tribunal is authorized to try persons suspected of grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity.(10) It has concurrent jurisdiction with national courts and is not intended to prevent or preclude the role of national criminal justice systems in prosecuting serious crimes under international law.(11) The Tribunal may, however, assert its primacy over national courts by requesting that they defer to its competence at any stage of the proceedings and it may also retry a case adjudicated by a national court. …