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The tweet The unaccountable ICTY is their latest production.
What steps were taken to make the ICTY accountable?
Virtually none. The UN Security Council, having set down some detailed conditions for the ICTY to observe, decided that it would be ‘inappropriate’ for the Security Council to involve itself in the management of the ICTY. It merely received operational updates. There was no rigorous scrutiny.
Was anyone aware that the ICTY was disregarding the instructions given to it by the Security Council?
Plenty of people must have been aware. None did anything. When the ICTY Statute came up for approval by the UN, no protest was raised that the Statute ignored everything that members of the Security Council had said.
What were these conditions?
That the ICTY should enforce only existing international law and should be entirely impartial and objective in all its procedures and processes. However, the ICTY Statute allowed it to do anything it wanted to and it proceeded to do exactly that, creating (in the words of one prosecutor) “more new international law in four years than in the previous 400”.
What about the ICTY’s basic legality as a court?
The Security Council had expressed deep unease about using the powers in Chapter VII of the UN Charter to create the ICTY, making it clear that it was only the urgency of the humanitarian situation that persuaded them reluctantly to agree to this. This was brushed under the carpet. The only time the ICTY’s highly dubious legality was formally considered was when its legality was formally challenged in a trial. The court referred it the ICTY’s own Appeals Chamber – in effect, the ICTY judging its own case.
How did the Appeals Chamber reject the motion?
In the usual dishonest way. Two members of the team that drafted the UN Charter have made it plain that the UN would not have come into being if the power to create a criminal court had been included. Yet the Appeals Chamber claims that the special measures listed in the Charter under article 41 “are merely illustrative examples which obviously do not exclude other measures”. It is inconceivable, given the sensitivity of the power to create a criminal court, that there would have been no specific reference to such a radical new power in the Charter.
What were the standards of justice achieved by The Hague Tribunal?
Miserable. Failings not seen in real courts of justice for several centuries at least. Extensive abuse of every tenet of good legal practice applied throughout the world.
How has this been able to happen?
Because a few powerful nations decided that ad-hoc Tribunals could be a powerful tool for controlling sovereign States they considered a threat. Reports of an ‘atrocity crime’ is a quick an easy way to justify a military attack justified by a humanitarian emergency.