International Territorial Administration and the Emerging Obligation to Prosecute
Clanton, Sarah M., Texas International Law Journal
Sarah M. Clanton's article explores the interplay between international territorial administration and international criminal practice. Case studies selected by the author involve the territorial administrations and international courts arising out of conflicts in the former Yugoslavia, Kosovo, East Timor, Sierra Leone, and Iraq. The article analyzes the mandates of the United Nations and other international organizations that gave rise to the administrations and the judicial processes and tracks developments in the prosecution of persons accused of committing serious crimes. The author contends that the former entitlement to prosecute is being replaced as a result of these events with an emerging obligation to prosecute in limited circumstances. The practical and normative consequences of the shift from elective prosecution and amnesty to an obligation to prosecute are considered, and the author concludes that the emerging trend is advancing the goals of criminal justice while trying to meet the special needs of post-conflict nations.
During the last decade, international organizations including the United Nations and the European Union have engaged in various "missions" and "transitional administrations" of territory, most famously during the dissolution of the former Yugoslavia. The conflict in the former Yugoslavia led to intervention by three separate international organizations: the U.N. and the activities of the U.N. Protection Force (UNPROFOR) and later the U.N. Mission in Kosovo (UNMIK), the EU and the activities of the EU Administration of Mostar (EUAM), and the installation of the Office of the High Representative (OHR) for Bosnia and Herzegovina following the Dayton Peace Agreement.1 Ralph Wilde has suggested that these instances of international organizations administering territory are examples of a distinct policy institution, called international territorial administration (ITA).2 It is the contention of this author that ITA has helped inspire the establishment of international courts to try those persons accused of serious crimes. The installation of these judicial bodies has facilitated an emerging obligation to prosecute.
In 1993, two years before the Dayton Peace Agreement, the U.N. security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), acting under Chapter VII of the U.N. Charter.3 The Security Council created the tribunal "for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia" after January 1, 1991.4 The Security Council hoped that the creation of the tribunal would curb serious crimes including widespread rape and ethnic cleansing. Resolution 827 includes provisions aiming to bring those responsible for these offenses to justice, and restoring and maintaining peace.5 The resolution states that all countries shall cooperate fully with the tribunal.6 In 2006, the Office of the Prosecutor expects to have thirty-three accused on trial.7
The ICTY does not represent the first effort to create an international criminal tribunal. After World War II, the Allies established two ad hoc tribunals, the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal).8 These courts tried major German and Japanese war criminals, while other Allied tribunals and national courts tried thousands of lesser war criminals.9 The tribunals derived their mandates and legitimacy from the Allied governments. The development of tribunals designed to bring war criminals to trial after World War II represented a first step forward for international law, particularly regarding legal notions of individual culpability and superior responsibility.
The establishment of the ICTY was the first instance in the post-cold war era in which the international community, via the U. …