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Mediterranean Quarterly 11.2 (2000) 29-40

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The International Criminal Tribunal for the Former Yugoslavia:

Christopher Black

The indictment of Slobodan Milosevic for alleged war crimes raises important questions about the impartiality and, ultimately, the purpose of the International Criminal Tribunal for the Former Yugoslavia (ICTY). For centuries, the independence of judicial bodies has been considered one of the fundamental precepts of the quest for justice. As Lord Hewart stated in 1924, it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." 1 It has also been said that there is nothing more important than the public administration of justice. But in the case of the ICTY, a compelling argument can be made that private justice has replaced public justice, that even the appearance of fundamental justice has been replaced by an open contempt for justice.

It is clear that from the beginning U.S., British, French, and German interests underlay the creation of the tribunal and worked ceaselessly behind the scenes in order to create it. 2 They first considered setting up the court to deal with Iraq and Saddam Hussein during the Persian Gulf War. The idea apparently originated with the U.S. Department of the Army, which alone should tell us something about its true purpose. The rhetoric used to justify such a body to the general public was, of course, heavily seasoned with concerns for human rights, the dignity of the individual, genocide, and democracy. [End Page 29]

However, there was a problem. It was generally agreed that no such tribunal could be created without the mechanism of a treaty, which had to be ratified by all those affected by it. There was no time to create such a treaty with respect to Hussein, so other methods were used to put pressure on the Iraqi government. Between 1991 and 1993, however, the four originating countries again pushed for the creation of an international criminal court through which they could effect policy. It would be created by the United Nations Security Council. A draft treaty to create a truly international criminal court, one which applied to all states and the latest in a long list of attempts dating back to the 1890s, was indeed put together in Rome in 1998 and had the support of most states present. But its ratification has not taken place, as several important powers, particularly the United States, refuse to sign it for fear of being caught in its web. 3

For thirty years the United States has tried to block treaties such as the one now before the world. It opposes universal jurisdiction, and it opposes an independent prosecutor, as the current treaty proposes. It wants any prosecutions to go through the Security Council and be subject to its right of veto. In fact, Jesse Helms, the conservative U.S. senator, said such a treaty, if presented to Congress for ratification, would be "dead on arrival." 4 It would seem, then, that the treaty is itself nothing more than window dressing to satisfy the public that the nations of the world really care about human rights and war crimes in order to complement their rhetoric. For without ratification by the major powers it is a dead letter. The United States remains stubborn in its opposition to this treaty, but then it has a bit more to worry about than most countries.

The breakup of Yugoslavia presented the United States with its next opportunity to create the kind of court it desired. In order to accelerate the breakup of that country into quasi-independent colonies, principally of Germany and the United States, it was necessary to discredit the existing leadership. An effective propaganda weapon in such an exercise is, of course, a tribunal with an international character, which the public will accept as a neutral instrument of justice but which is controlled for political ends. [End Page 30]

The ICTY was created by the Security Council in its Resolutions 808 and 827 of 1993. Both resolutions stated that the situation...