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

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

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

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

Synopsis

On 25 May 1993 the United Nations Security Council took the extraordinary and unprecedented step of deciding to establish the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a mechanism for the restoration and maintenance of international peace and security. This was an extremely significant innovation in the use of mandatory enforcement powers by the Security Council, and the manifestation of an explicit link between peace and justice --politics and law.

The establishment of ad hoc tribunals for the former Yugoslavia and Rwanda was followed by the adoption of the Rome Statute of the ICC in July 1998, the arrest of General Augusto Pinochet in London in October 1998, and the establishment of ad hoc tribunals in Cambodia, Sierra Leone, and East Timor, all of which pointed to an emerging norm of international criminal justice. The key to understanding this is the relationship between the political mandate and the judicial function. The Tribunal was established as a tool of politics, but it was a judicial, not a political tool.

This book provides a systematic examination of the Tribunal, what it is, why it was established, how it functions, and where its significance lies. The central question is whether an international judicial institution, such as the Tribunal, can operate in a highly politicized context and fulfill an explicit political purpose, without the judicial process becoming politicized. Separate chapters chart the origins of the court, the process of establishment, jurisdiction, procedure, state co-operation, including obtaining custody of accused, and the role and function of the Chief Prosecutor. This last element is the key to the Tribunal's success in maintaining a delicate balancing act so that its external political function does not impinge on its impartial judicial status, and instead enhances its effectiveness. The book concludes with an assessment of the conduct of the Milosevic case to date.

Excerpt

The creation of the Tribunal in 1993 was the result of a unique convergence of legal, political, and diplomatic circumstances. At the political-legal level, it was the manifestation of the convergence of two distinct and related trends: the reinterpretation by the Security Council of that which constitutes a threat to international peace and security, to include intra- as well as interstate conflict and violations of basic human rights; and the development of international humanitarian law and international criminal law. This was combined with a unique set of circumstances at the political-diplomatic level, stemming from systemic changes in international relations following the end of the cold war, which both required and allowed for a high level of activity on the part of the Security Council.

This chapter sets the decision to establish the Tribunal in the context of those changes at the political-legal and political-diplomatic levels. There are three parts to the equation: the un Security Council's powers and responsibilities in the area of international peace and security; the development of international criminal justice; and the response of the international community, through the auspices of various international organizations, to the war that broke out in Yugoslavia in 1991, particularly the widespread and systematic violations of international humanitarian law committed as an integral part of the strategy of ethnic cleansing.

The un security council and international peace and security

The establishment of the International Criminal Tribunal for Former Yugoslavia (ICTY) was the result of a political decision to invoke the legal power and authority of the Security Council to enforce another set of international laws—those regulating the use of force—by creating a judicial

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