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

By Colangelo, Anthony J. | Northwestern University Law Review, Spring 2003 | Go to article overview
Save to active project

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


Colangelo, Anthony J., Northwestern University Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?