Manipulating International Criminal Procedure: The Decision of the ICTY Office of the Independent Prosecutor Not to Investigate NATO Bombing in the Former Yugoslavia

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I. INTRODUCTION

With the establishment of the International Criminal Court, an in-depth understanding of how international criminal judicial bodies function proves essential to United States foreign policy and academic legal evaluation. With the "war on terrorism" underway, this understanding must come immediately. The reality of present geopolitical relations has consecrated international law as part of national law, including United States law. We should know what we face.

In her address to the United Nations Security Council on June 2, 2000, Carla Del Ponte, Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY), stated that she had decided not to open a criminal investigation into any aspect of NATO's 1999 air campaign against the Federal Republic of Yugoslavia (FRY).1 A primary purpose of the investigation would have been to examine civilian casualties resulting from the campaign as a possible violation of international law.2 Ms. Del Ponte laid out the reasoning for the decision not to investigate in the Prosecutor's Report on the NATO Bombing Campaign.3 Her controversial decision not to prosecute is tantamount to a judgment of not guilty. Indeed, a decision not to prosecute here can be as important, or more important, than a judicial decision in terms of licensing a certain degree of civilian death or "collateral damage"4 and the tactical methodology permitting those casualties under international law.

This Comment's first argument will analyze the Prosecutor's legal reasoning under international law and probe the Office of the Independent Prosecutor's (OIP) choice and evaluation of the evidence under the criteria of the ICTY Statute. It will criticize Ms. Del Ponte's decision in light of the numerous reports and accusations submitted to the OIP by governmental and nongovernmental organizations pursuant to the ICTY Statute's directive. Through an evaluation of these factors, the analysis will attempt to discern the standard for war crimes that the OIP applied to NATO and thereby answer the question: Did the Prosecutor give NATO a free pass under the international law governing armed conflict? That is, the Comment will first examine whether the Prosecutor uniformly applied the correct international legal standards to NATO bombings, whether the OIP ignored or minimized important evidence, and whether the Prosecutor took a one-sided NATO approach to the evidence. The discussion will then conclude that the OIP failed to present a convincing legal argument that no investigation was warranted. The second area of discussion will suggest that even though the evidence within the control of OIP indicates NATO war crimes violations, therefore providing grounds for an investigation, the OIP decision not to investigate may have been correct given the economic and political reality in which the ICTY was functioning. This Part will illustrate that despite evidence pointing to NATO violations of international law, the alliance actively implemented a policy of adherence to international legal norms. After presenting this program of compliance, the section will outline the severe resource restrictions with which the ICTY and OIP were faced in every decision to investigate, indict, and prosecute, as well as the political influences that accompanied these problems. The discussion will ultimately conclude that regardless of political influence, an OIP investigation into NATO conduct would have blocked important investigations and prosecutions involving war crimes atrocities of exceptional magnitude compared to the NATO mistakes-thus legitimating, but also necessarily limiting, the OIP decision within the ICTY reality.

The Prosecutor was forced to reach a conclusion5 and was faced with several choices: she could have absolved NATO of war crimes, she could have investigated and even prosecuted NATO, or she could have taken a middle of the road approach and condemned NATO without investigating its actions. …