The minutes of the UN Security Council meeting on 22 February 1993 to discuss Resolution 808 shed very interesting light on the way the ICTY was established.
LEGALITY OF ICTY
The minutes mention a report that had been prepared for the Security Council. This report had concluded that the Security Council had the power to set up a criminal Tribunal under Chapter VII of the UN Charter. Chapter VII, however, was limited to creating organisational arrangements to facilitate humanitarian aid. Nothing within Chapter VII gave the Security Council, or indeed the General Assembly, to establish a criminal court of any kind.
The UN Secretary-General at the time, Boutros Boutros-Ghali, had previously advised the Security-Council of this, in clear but diplomatically-expressed terms:
“The approach which, in the normal course of events, would be followed in establishing an international Tribunal would be the conclusion of a treaty by which the states parties would establish a Tribunal and approve its Statute. This treaty would be drawn up and adopted by an appropriate international body (e.g The UN General Assembly or an especially convened conference).”
As the minutes show, by the time of this meeting he had evidently come under pressure:
“The Secretary-General also believed that the establishment of the tribunal by means of a Chapter VII decision would be legally justified, both in terms of the object and purpose of the decision and of past Security Council practice, He recalled, in that regard, that the Council had on various occasions adopted decisions under Chapter VII, aimed at restoring or maintaining international peace and security, which had involved the establishment of subsidiary organs for a variety of purposes”.
This is disingenuous to say the least. The ‘subsidiary organs’ previously set up by the Security Council were inconsequential by comparison with the creation of an international criminal court – no more than ad-hoc constructs to help get relief aid through more quickly.
In any case, Boutros-Ghali was well aware that the UN founding nations had expressly excluded from the Charter any provision to create a criminal court. As one of the team of Nuremberg lawyers entrusted with drafting the UN Charter in 1945 (which has never been amended in any way), Walter J. Rockler commented in 2002 that the founding nations would never have agreed to such a provision.
Even so, a year later Boutros-Ghali became the first and only UN Secretary-General to be denied a second term of office, thanks to a veto by the United States.
SECURITY COUNCIL CONSTRAINTS ON ICTY
As well as repeated concerns about the legality of the Tribunal, the minutes also demonstrate the unequivocal view of the Security Council that the ICTY should enforce only existing humanitarian law:
“The resolution created an ad-hoc body with a jurisdiction limited not only geogrpahically and temporally, but also materially, in that it would be circumscribed to applying the international law in force. In fact, with the establishment of the Tribunal the aim was not to create new international law not to exchange existing law, but to guarantee respect for that law.”
“The representative of Brazil observed that the proposals for the establishment by the Security Council of an international tribunal had posed intricate and not unimportant legal difficulties, many of which had not been resolved to the satisfaction of his delegation. It had only been the consideration of the “unique and exceptionally serious circumstances” in the former Yugoslavia that had determined the vote cast by Brazil on the resolution just adopted. The positive Brazilian vote should not be construed as an overall endorsement of legal formulas involved in the foundation or in the Statute of the Tribunal. The speaker believed that the matter should also have been brought to the attention of the General Assembly. The views of the Government of Brazil on the main legal issues had been expressed when the Council had adopted Resolution 808 (1993). In particular, Brazil had expressed the view that the most appropriate and effective method for establishing the Tribunal would have been the conclusion of a convention setting up an ad hoc international criminal jurisdiction and containing the terms of reference for its exercise. The option of establishing the Tribunal through a resolution of the Security Council, which Brazil had not favoured, left unresolved a number of serious legal issues relating to the powers and competencies attributed to the Council by the Charter…The representative of Brazil stated that by adopting the resolution , the Council was not creating , nor purporting to legislate, international humanitarian law. Rather, the Tribunal would have the task of applying existing norms of international humanitarian law.”
“It was the consistent position of the Chinese delegation that an international tribunal should be established by concluding a treaty so as to provide a solid legal foundation for it and ensure its effective functioning. Furthermore, the statute of the Tribunal just adopted was a legal instrument with the attributes of an international treaty , involving complicated legal and financial questions. It ought to become effective only after having been negotiated and concluded by sovereign States and ratified by their national legislative organs in accordance with domestic laws. Therefore, to adopt by a Security Council resolution a statute that gave the Tribunal both preferential and exclusive jurisdiction was not in compliance with the principle of State judicial sovereignty.”
The Venezuelan delegation “recognised the the Tribunal, as a subsidiary organ of the Council, would not be empowered with – nor would the Council be assuming the ability to set down norms of international law or to legislate with respect to those rights. The Tribunal simply applied existing international humanitarian law. It further acknowledged that , in adopting the draft statute, the Council was also taking exceptional action”.
The representative of New Zealand “stressed that the Tribunal was a court, with the task of applying independently and impartially the rules of customary international law and conventional law applicable in the territory of the former Yugoslavia”.