The International Tribunal for the Former Yugoslavia was established under UN auspices in 1993 in most extraordinary circumstances. There is no provision in the UN Charter which would make the founding of such a court possible. That makes ICTY illegal ab initio. But since political exigencies rather than legal considerations dictated that such a Tribunal should be set up, a Security Council resolution mandating its founding was engineered by the Western powers (US, Great Britain and France) who were its permanent members . A suitable moment was found when the remaining permanent members of the Council were either expecting the approval of a huge loan from Western financial institutions (Russia) or were involved in potentially profitable economic negotiations (China) and did not wish to annoy their Western partners by vetoing the ICTY resolution. Resolution 808 was duly passed on 22 February 1993 and a reluctant Secretary-General of the UN was tasked pursuant to its Par. 2 to compose a report outlining recommendations for its implementation.
In his Report, in Par. 19 the Secretary-General notes that “[T]he 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.” Politely, he was thereby washing his hands of the formation of the new tribunal, which obviously did not follow the normal procedure he mentioned. The proper approach, he went on, “would have the advantage of allowing for a detailed examination and elaboration of all the issues pertaining to the establishment of the international tribunal. It also would allow the States participating in the negotiation and conclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not.” Noting the “disadvantage” of following the rules of international law in the instant case [i.e. “requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force… even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective,” thus implicitly signalling the purely political urgency of the matter] the Secretary-General invokes (Par. 23) Chapter VII of the Charter as the solution to the problem. “This approach,” he points out, “would have the advantage of being expeditious and of being immediately effective as all States would be under a binding obligation” to comply, thus rendering obvious the teleological nature of the “legal rationale” for ICTY and once again giving the game away.
No clearer proof of the contrived nature of the legal case for the formation of ICTY by Security Council Resolution 808 and reference to Chapter VII can be found than Par. 27 of Secretary-General’s Report: “The Security Council has on various occasions adopted decisions under Chapter VII aimed at restoring and maintaining international peace and security, which have involved the establishment of subsidiary organs for a variety of purposes. Reference may be made in this regard to Security Council resolution 687 (1991) and subsequent resolutions relating to the situation between Iraq and Kuwait.” This reasoning is plainly false because while Chapter VII is undoubtedly applicable when one UN member state militarily invades another, nothing even remotely of the sort had occurred in the Former Yugoslavia to justify the extraordinary step of forming an international criminal tribunal such as ICTY.
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