The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy

By Rachel Kerr | Go to book overview

9 Conclusion

The Tribunal was the most obvious manifestation of an explicit link between politics and law by virtue of its method of creation as a mechanism for international peace and security, and because of the nature of its operation. Normally, in the domestic arena, judicial bodies are not only be apolitical in and of themselves, that is, established by legal process and solely concerned with the application of law, but in normal circumstances they stand entirely apart from the political arena. The crucial difference between international law and politics and domestic law and politics is that there is no formal separation between law and politics in international society, particularly in the area of international peace and security, where the Security Council's powers and responsibilities derive from law, and the exercise of those powers creates law in the form of binding obligations. The activation of those powers is, however, a political determination. In the international arena, law and politics are inextricably intertwined. This was reflected in the establishment of the Tribunal and in its operation.

The question posed in the introduction to this book was whether the 'politicization' of the function of the Tribunal undermined its impartial judicial status? 1 The answer to this is that, first, the dependency of the Tribunal on external bodies and the close linkage between the Tribunal and the political process for the restoration of peace did not amount to 'politicization'. The Tribunal had a political function, as a mechanism for the restoration and maintenance of international peace and security, and engaged in politics and diplomacy in order to function, but 'politicization' is the manipulation of the judicial process by politics, not the manipulation of politics to serve the judicial process. It was imperative that the Tribunal, as a judicial institution, delivered justice in isolation from politics. But in order to deliver justice it had to engage in politics.

On a conceptual level, it is possible to separate the judicial and the political function. Whilst they are intertwined, law and politics are not

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The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy
Table of contents

Table of contents

  • The International Criminal Tribunal for the Former Yugoslavia iii
  • Acknowledgments v
  • Contents vii
  • Abbreviations viii
  • 1: Introduction 1
  • 2: International Peace and Security, International Criminal Justice, and the Yugoslav War 12
  • 3: Establishing a Court 41
  • 4: Jurisdiction 60
  • 5: Procedure 92
  • 6: Cooperation and Judicial Assistance 115
  • 7: 'First Catch Your Criminal' 147
  • 8: An Apolitical or a Political Institution? the Exercise of Prosecutorial Discretion 175
  • 9: Conclusion 208
  • Bibliography 220
  • Index 237
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