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What is the relationship between The Hague Tribunal and the UN?
The ICTY was ‘created’ by the UN. They claimed authority to do this under the 1946 UN Charter, invoking a clause in Chapter VII which gave very limited discretion to the UN Security Council to set up small agencies to provide help with emergency humanitarian aid.
Was this constitutionally valid?
No. The then UN Secretary-General, Boutros Boutros-Ghali, made it clear that there were only two ways the Security Council could create an international criminal court – by a vote of the entire UN General Assembly or by the creation of a new international Treaty. Neither of these courses was followed.
What happened next?
The Security Council proceeded to vote on a new Resolution to create an international criminal Tribunal. Although many of the members stated explicitly they were unhappy about doing this under Chapter VII, they judged that the humanitarian crisis was so severe that it justified this action.
How did the UN react?
Boutros-Ghali was obliged to write a report (S/25704) setting out the legal basis for the establishment of the international Tribunal. Knowing full well (as he had previously advised) that there was no power in the UN Charter to allow it to create an international court, the best he could do under great duress was to say “this approach would have the advantage of being expeditious”.
Did this make it legal?
Of course not. The Charter had been drafted with great care. The special powers devolved to the Security Council were explicitly confined to the provision of humanitarian aid. The idea that a war crimes Tribunal constituted a form of humanitarian aid was ridiculous. So too was the notion that the legal basis of the court could be waived in the interest of expediency.
But didn’t it bring about a good outcome?
Absolutely not. The claims of humanitarian catastrophe turned out to be almost entirely false. The creation of the ICTY, far from assisting the pathway to peace, made things very much worse.
What did the UN do to make sure that the ICTY followed its instructions?
Virtually nothing. The Security Council immediately distanced itself from the Tribunal on the spurious ground that it would not be appropriate for it to control the court. This gave carte blanche to the US to shape and run the Tribunal entirely for its own interests, breaking every requirement set for it in the process.