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How did the International Criminal Court come into being? Scholar John Hagan traces the history of events surrounding the international reaction to the war in the Balkans as the basis for the creation of a permanent International Criminal Court.
 

Even though the groundwork had been laid for an international field of humanitarian law with the Nuremberg trials, there was still much to do.

New legal fields do not come into being through spontaneous universal consensus. Groups vie over the definition of the field and control over the institutions and organizations needed to make the field a reality. And, as scholars point out, it is the nature of this conflict that gives the field its contours and structure.

This was the case for international humanitarian rights law.

Two influential groups jockeyed for the ability to define and structure the field of humanitarian rights.

The Commission

In October 1992, the UN Security Council established a commission of experts to investigate the events occurring in the former Yugoslavia.

Prior to the UN resolution creating the commission of experts, human rights groups, like Helsinki Watch, were calling for an international tribunal to address crimes in the former Yugoslavia. Genocide was in progress and something had to be done. In response to this pressure, the UN established, not a tribunal, but the commission of experts.

Even though the commission was instigated through the efforts of the U.S., the Clinton administration sought to avoid military involvement in the Serb-Croat-Bosnian conflict. Setting up a “commission of experts” rather than a war crimes commission allowed the U.S. and other countries to take action without risking military involvement.

Struggles for the Commission

Two struggles immediately plagued the commission, both involving an influential character, Cherif Bassiouni, and both demonstrating the underlying conflict between those who preferred a political solution and those who fought for justice.

Challenges Selecting the Commission Chair

Bassiouni, a friend of then UN Secretary General Boutros Boutros-Ghali and professor law at DePaul University in Chicago, was identified by the Secretary General as the candidate for the commission chair. However, in the final decision, Bassiouni was not chosen as chair, though he was appointed to the commission.

In many ways Bassiouni would make an ideal chair. He was doggedly committed to international human rights, and, as a law professor, had considerable expertise in the area. Bassiouni also happened to be Muslim. According to some sources, Bassiouni was passed over for the chair because some people were afraid that Bassiouni might be biased in favor of the Muslim Bosnians.

However, Bassiouni's appointment as chair may have been undermined for less personal reasons. In the interest of achieving peace through political negotiation, some members of the UN—most notably the British politican-diplomat Lord David Owen—resisted the commission. They subscribed to the “moral equivalency” view that all parties to the conflict were equally culpable. Finding fault with one or the other of the parties would only get in the way of negotiating a peace.

Bassiouni was more interested in determining who committed the crimes and bringing them to justice. For him, the issue was not a matter of assuming moral equivalency as an expedient. The goal was to determine whether systematic crimes against humanity were being carried out, and who was responsible. If the evidence pointed to a systematic plan by the Serbian government to create atrocities and terror in the interests of “ethnic cleansing,” then so be it.

Leveling charges of genocide against one of the parties to the negotiation would obviously complicate things. Bassiouni was passed over. Fritz Kalshoven, a Dutch law professor, was chosen as chair.

Challenges Funding the Investigation

Even though the mandate of the commission was to investigate atrocities in the former Yugoslavia, Bassiouni discovered that the UN had allocated funding only for Kalshoven's position. No money was allocated for the investigation. Again, Bassiouni suspected that Owen was behind the lack of funding. A thorough investigation might implicate one side over the other (which it in fact did) and so, again, cripple the peace negotiations.

Not one to be stopped, Bassiouni went outside the UN for funding. Using his position at De Paul University and private funds, Bassiouni created a massive database of crimes and atrocities in the Balkans. Bassiouni's aim was not merely to collect information. Evidence for criminal prosecution was the information needed.

Again, insiders at the UN attempted to block Bassiouni's efforts through first questioning the security of his database, and second by moving the date for the commission report forward, preventing as detailed a catalog of evidence as would otherwise be possible. As he had done with the database, Bassiouni turned outside the UN. Taking his struggles with the UN and Owen to the press (in an October 1992 interview with Mike Wallace on 60 Minutes), Bassiouni decided to appeal for public support to pressure governments to change course.

The Tribunal

Bassiouni's efforts paid off. In an sudden turn of events, the U.S. announced a change in policy in December 1992 and called for a “second Nuremberg tribunal” to investigate and prosecute crimes against humanity and genocide in the former Yugoslavia. In February 1993, the Security Council voted to create the International Criminal Tribunal for the Former Yugoslavia (the ICTY).

While the work of establishing and carrying out the work of the ICTY was long and arduous, it finally met with stunning success. A number of high ranking Serbian politicians were indicted, arrested, tried and convicted for crimes against humanity. For the first time in history a sitting head of state was indicted and brought to trial by an international tribunal.

The International Criminal Court

The International Criminal Court (ICC-UN, to distinguish it from the International Chamber of Commerce) grew out of the hard won successes of the ICTY. The ICC-UN opened its office in the Hague in the summer of 2002 and officially began work July 1. However, the contours of the legal field of international humanitarian rights are yet to be defined. The doctrine of the absolute sovereignty of states is firmly entrenched and shows no signs of disappearing any time soon.

The U.S., lead by the Bush administration's “war on the court,” still testifies to the commitment to absolute state sovereignty. Any state that asserts that international laws simply do not apply to them demonstrates that politics, and not justice, are still very much the name of the game in international relations.

 
Data and Methods:

Data Sources:

  • A survey was conducted in 2000-2001 of 109 employees from the International Criminal Tribunal of the Former Yugoslavia (ICTY).
  • The survey was followed up with over one hundred in-depth interviews (2000-2003).
  • Interviews included the chairman of the commission of experts that preceded the ICTY, all three chief prosecutors, the deputy prosecutor, four chiefs of investigations and prosecutions and employees at all levels.
  • The author also observed trials and analyzed trial transcripts over the same period.

Funding Sources:

  • American Bar Foundation
  • Social Sciences and Humanities Research Council of Canada
  • National Science Foundation
  • Russell Sage Foundation
 
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Reference

Hagan, John. 2003. Justice in the Balkans. Chicago: University of Chicago Press. Ch. 2, pp. 33-59.

 
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