E. THE INTERNATIONAL TRANSITIONAL JUSTICE RESPONSE TO THE BALKAN ATROCITIES
The international community’s, including the USG’s, transitional justice response to atrocities committed in the FRY fit within a larger effort to address conflict in the Balkans. A key feature of this response was the USG’s initiatives, initially resisted by other UNSC members, to pursue a multilateral transitional justice solution.
In early- to mid-1992, the UN began its most meaningful efforts to address FRY turmoil, including through the use of force. On April 7, 1992, the UNSC authorized the deployment of the UN Protection Force (UNPROFOR) in Bosnia and Herzegovina.22 In addition, on July 13, 1992, the UNSC threatened suspected atrocity perpetrators with individual responsibility for violations of international humanitarian law.23
The Bush, Sr. administration prompted some of the international community’s first attempts to address atrocities in the FRY. In August 1992, the USG called for the first emergency meeting of the UN Human Rights Commission, to discuss unconfirmed reports of death camps in the FRY.24 At approximately the same time, the USG began drafting a UNSC resolution, eventually adopted on August 13, 1992,25 requesting states and organizations to collect information about violations of humanitarian law within the FRY and to submit that information to the UNSC.26 Later that month, as part of the West’s more general threat to prosecute Serbs for war crimes trials in addition to other sanctions if the conflict did not end, Acting U.S. Secretary of State Lawrence Eagleburger warned that unless Serb leaders stopped the “ethnic cleansing” campaign, their people would face “a spectacularly bleak future.”27
The international community, too, became increasingly involved with the situation in the FRY. In late-August 1992, the United Kingdom hosted an international conference on the FRY, at which participants approved a “Statement of Principles.” This document compelled all persons to comply with international humanitarian law, noted personal responsibility for violations, included a pledge “to carry forward a study of the creation of an international criminal court,” and announced that governments and international organizations should “take all possible legal action to bring to account those responsible for committing or ordering grave breaches of the Geneva Conventions.”28 Moreover, conference participants decided to merge the UN’s and Europe’s mediation efforts under the cochairmanship of former U.S. secretary of state Cyrus Vance, who was serving as UNSG Boutros Boutros-Ghali’s special envoy to the FRY, and British Lord David Owen.29 On August 28, 1992, the UN Commission on Human Rights’s Special Rapporteur on the FRY issued a report recommending the establishment of a commission to evaluate and investigate particular violations of international humanitarian law in the FRY that might warrant prosecution.30
The following month, the international community expanded its attempt to address the situation in the FRY through force. On September 14, 1992, the UNSC enlarged UNPROFOR’s “mandate and strength.”31 That same month, the USG continued its multilateral initiatives to collect data on and otherwise prepare to deal with the situation. On September 15, 1992, Bush, Sr. announced that the USG was collaborating with other states to create a UN Commission of Experts (CoE) that would prepare for the possible prosecution of alleged atrocity perpetrators from the FRY,32 and submitted a resolution to the UNSC for that purpose.33 The USG announced the next week that it had submitted to the UNSC its initial report concerning violations of international law in the FRY.34 At the same time, the USG declared that it was collaborating with other states on a UN resolution to establish a commission of experts on the FRY.35
As the USG submitted these public announcements, some senior USG officials sought to raise awareness among their colleagues in the government about, and to prompt more meaningful action regarding the situation in, the FRY. On September 25, 1992, U.S. ambassador to the UN in Geneva Morris Abram testified about war crimes in the FRY on behalf of the U.S./DoS before the Commission on Security and Cooperation in Europe (CSCE).36 The following month, Warren Zimmerman, the U.S. Ambassador to Yugoslavia from 1989 to 1992, testified before the same commission about the USG’s efforts to address the situation in the FRY, stating: “Governments have a responsibility to ensure that each person’s guilt is established in accordance with basic notions of decency and due process. This respect for law must be a central part of America’s message to the world, as new democracies emerge around the globe.”37
By the fall of 1992, the UNSC’s commitment to document atrocities in the FRY became more concrete, starting with the creation of the first international institution dedicated to investigating such offenses. On October 6, 1992, the UNSC voted unanimously to request that the UNSG establish a CoE to provide the UNSG with conclusive information on international humanitarian law violations in the FRY, and also requested the UNSG to report to the UNSC on the CoE’s conclusions when making any recommendations for next steps.38 Edward Perkins, U.S. delegate to the UN, said the resolution “sen[t] a clear message that those responsible for the atrocities and gross violations, including violations involved in the process of ‘ethnic cleansing’ and other war crimes in former Yugoslavia, must be brought to justice.”39 The USG also stated that the CoE was “a first necessary step before moving ahead with prosecution, perhaps before an international tribunal.”40 The USG additionally warned against “show trials of absent defendants when the purpose of a trial is to reiterate the importance of respect for law.”41 The CoE was first proposed by the Bush, Sr. administration and modeled on the Allied War Crimes Commission, established in 1943 and responsible for collecting evidence used at the IMT and other Allied tribunals after WWII.42 In late-October 1992, the UN War Crimes Commission, the formal name for the CoE, held its organizational meeting in New York.43
While the international community focused on atrocities committed in the FRY, more general efforts arose to address atrocities worldwide. On October 28, 1992, the UNGA’s Sixth Committee (Legal) considered the ILC’s report recommending the establishment of an international criminal court.44 As discussed below, efforts in the early-199os to establish what would become the ICC were stillborn, in part because of USG opposition.
The following month, UN bodies increased their focus on personal culpability for atrocities committed in the FRY. On November 16, 1992, the UNSC condemned “ethnic cleansing” in Bosnia and Herzegovina and warned “that those that commit or order the commission of such acts will be held individually responsible ... .”45 By the end of November, while the CoE considered exhuming a possible mass grave, one CoE member, legal scholar M. Cherif Bassiouni, indicated that the CoE eventually would recommend to the UNSC the possible creation of an ad hoc or permanent ICT with jurisdiction over atrocities in the FRY.46 Bassiouni also stated that, because of the nature of the atrocities, their suspected perpetrators could be tried in virtually any country, under a claim of universal jurisdiction.47
The USG’s public, unilateral efforts to seek individualized justice for atrocities in the FRY peaked in mid-December 1992. On December 16, 1992, Eagleburger, in what became known as the “naming names speech,”48 announced at a meeting in Geneva a list of ten Serbs and Croats the USG believed should be prosecuted before an ICT.49 His announcement, the first time the USG had publicly condemned specific FRY officials, included individuals such as Milosevic, Karadzic, Ratko Mladic, and Zeljko Razjatovic (more popularly known as Arkan), and organizations such as Arkan’s Tigers.50 This list perfectly mirrored one that Eagleburger’s subordinates within the U.S./DoS had provided him in a confidential memorandum two days earlier.51
In what had become a virtuous cycle of USG and UN action, on December 18, 1992, the UNSC demanded the immediate closure of all detention camps in Bosnia and Herzegovina. The same day, the UNGA adopted two measures to protect and promote human rights more generally: the Declaration on the Protection of All Persons from Enforced Disappearance52 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.53
Bush, Sr. lost his re-election campaign to Clinton in November 1992, but the USG’s efforts regarding transitional justice in the FRY continued unabated. The newly installed Clinton administration’s first major action toward establishing an ICT for the FRY occurred on January 27, 1993, when U.S. Secretary of State Warren Christopher asked his senior advisers to prepare a report on the best method of trying suspected atrocity perpetrators in the FRY.54 That same day, the USG sent the UN its fifth report documenting atrocities in the Balkans.55 On February 9, 1993, U.S. ambassador to the UN Human Rights Commission Richard Schifter stated that “the horrors of Bosnia are surely among the greatest tragedies to befall humankind in the second half of the 20th Century.”56
In February 1993, agencies that the UN created specifically to address the Balkans crisis submitted key reports that focused the international community’s attention on the precise forms the transitional justice institution for the FRY could take. On February 9, 1993, CSCE rapporteurs issued a report that proposed the creation of an ICT for the FRY.57 The same day, the UNSG sent a letter to the UNSC president,58 which included the CoE’s interim report (dated January 26, 1993) as well as the UNSG’s review of the report and his own proposals. Finding that violations of international humanitarian law had been committed in the FRY, the report concluded with the following:
72. Jurisdiction for war crimes is governed by the universality principles
and, hence, is vested in all States, where parties to the conflict or not.
Although the Genocide Convention emphasizes territorial jurisdiction, it also establishes the jurisdictional basis for an international tribunal. It is well recognized that the principle of universality can also apply to genocide as well as to other crimes against humanity.
- 73. States may choose to combine their jurisdiction under the universality principle and vest this combined jurisdiction in an international tribunal. The [IMT] may be said to have derived its jurisdiction from such a combination of national jurisdictions of the States parties to the London Agreement setting up that Tribunal.
- 74. The [CoE] was led to discuss the idea of the establishment of an ad hoc international tribunal. In its opinion, it would be for the [UNSC] or another competent organ of the United Nations to establish such a tribunal in relation to events in the territory of the former Yugoslavia. The [CoE] observes that such a decision would be consistent with the direction of its work.59
Through these statement, the CoE seemingly proposed at least five transitional justice options for handling atrocities in the FRY: (1) unilateral state prosecution through a claim of universal jurisdiction; (2) an ICT established through a treaty, perhaps outside the UN system; (3) an ICT established through executive agreement (such as the IMT or, though it was not explicitly mentioned, the IMTFE); (4) an ad hoc ICT established by the UNSC; and (5) an ad hoc ICT created by “another competent organ of the United Nations” (such as the UNGA, though it was not explicitly mentioned).
By mid-February 1993, the UNSC narrowed the spectrum of transitional justice institutions it would consider to address the Balkans crisis. On February 18, the UNSC unanimously approved a draft resolution calling for the UNSG to propose an ICT for the FRY with jurisdiction dating from June 25, 1991, when the FRY began disintegrating.60 Four days later, the UNSC announced “that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991,” and requested the UNSG to submit a report, including proposals and options, to the UNSC on the matter, “taking into account suggestions put forward in this regard by Member States ... .”61 In an accompanying speech, Madeleine Albright, then the U.S. ambassador to the UN, declared:
There is an echo in this chamber today. The Nuremberg principles have been reaffirmed. We have preserved the long-neglected compact made by the community of civilized nations 48 years ago in San Francisco: to create the [UN] and enforce the Nuremberg principles. The lesson that we are all accountable to international law may have finally taken hold in our collective memory. This will be no victors’ tribunal. The only victor that will prevail in this endeavor is the truth.62
In a letter dated April 5, 1993, the USG expressed its views and proposals to the UNSG regarding the establishment of an ICT for the FRY. In two annexes to the letter, the USG articulated general principles it held with respect to the creation of an ICT for the FRY63 and proposed a draft charter for such a tribunal.64 The USG explicitly described its reasoning for its preferred ICT structure under the draft charter. In particular, the letter explained why the USG believed that a tribunal for the FRY should be international. The USG argued that “the Tribunal should be established by the international community to enforce international standards,” which included “substantive and procedural law that is internationally accepted.”65 These laws and principles included fairness; the perception of fairness; basic due process, such as independent and impartial trial and appellate courts and prosecutorial authority; and the observance of fundamental rights of defendants, such as the rights to counsel, cross-examination, and appeal.66 The letter also described the USG’s belief that a tribunal for the FRY should be established by the UNSC. The UNSC, the USG argued, had the authority under Chapter VII of the UN Charter and was the appropriate body to create such a tribunal, as “[t]he process should not be limited to a single regional group.”67 The letter also explained why the USG favored the speediest creation of a tribunal for the FRY as possible. This premium on rapid action justified ICT creation through the UNSC instead of through a treaty, as the latter tends to follow a more lumbering process. Furthermore, establishing the tribunal through the UNSC had the added potential benefit of greater inclusivity. “[T]he process for establishing the Tribunal,” the USG argued,
should be designed to bring it into existence at an early date. The [UNSC] is in a position to do so in accordance with the procedure set forth in Resolution 808 (1993). The alternative of establishing a tribunal by treaty would, in our view, be much less effective and take much more time. This alternative would require a lengthy process of negotiation, conclusion and ratification; and it might lead to the absence of important States at the time the tribunal begins its work.68
The second annex, the draft charter, was a detailed proposal for the structure and operation of an ICT for the FRY.69 The USG deliberately designed the charter to reflect four particular points: “the Tribunal should be international (e.g., not regional); it should be fair and be seen as fair; it should be established by the [UNSC]; and it should be available as a model if additional [ICTs] are established.”70 Importantly, the USG viewed the ICT for the FRY as a model for future ICTs, which the ICTY would indeed become just a year later in response to the Rwandan genocide.71
While the UN and the USG pushed ahead with their efforts to pursue transitional justice for the Balkans crisis, other actors were only plodding along. By April 23, 1993, the CoE had analyzed data provided by governments and NGOs but was only just beginning its own investigation.72
In May 1993, the UNSC finalized details on the ICTY and formally created the tribunal. On May 3, the UNSG sent its report, which contained a draft statute for the ICTY, to the UNSC.73 USG officials were concerned about some of the draft statute’s elements, such as the definition and scope of certain legal concepts (e.g., crimes against humanity, command responsibility, defense of superior orders), but ultimately decided not to object, given the USG’s priority of establishing the ICTY as soon as possible to address the intensifying conflict in the FRY.74 Instead, the USG announced an interpretative statement on the statute and persuaded other UNSC members to follow suit.75
Toward the end of the month, negotiations over a transitional j ustice institution for the FRY finally came to fruition. On May 22, the foreign ministers of France, Russia, Spain (then a rotating member of the UNSC), the United Kingdom, and the United States issued a statement declaring that they “support[ed] the rapid establishment of the War Crimes Tribunal, so that those guilty of atrocities may be brought to justice.”76 Three days later, the UNSC invoked the UN Charter’s Chapter VII to officially establish an ad hoc ICT
for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to
the UNSG’s May 5, 1993, reports, which this resolution explicitly approved.77