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The Commission of Experts and the Tribunal

Internal USG documents reveal much about the USG’s timing and rationale for supporting the creation of the CoE. On August 31, 1992, U.S./DoS officials sent two virtually identical confidential memorandums to Eagleburger recommending that he authorize the Department to support UNSC efforts to establish a war crimes commission on the FRY with a limited mandate.78 The authors of these memoranda stated that “[a]ctive U.S. participation in this process” is important and “can bring the initiative into line with longstanding US positions.”79

Specifically, these memos’ authors argued that an ICT should not be established prematurely and that, once initiated, the tribunal should have limited temporal, subject-matter, and geographic jurisdictions. Regarding the timing of the creation of the ICT, the authors of both memos suggested that “appropriate defendants should be in custody before any such tribunal is created.”80 Regarding the form of the ICT, the authors proposed that “if an international court is established, it should be an ad hoc tribunal with jurisdiction limited to appropriate war crimes in the former Yugoslavia rather than a standing international criminal court.”81

In addition, the authors indicated that early USG support for a war crimes commission could help avert undesirable outcomes proposed by other states and even other parts of the USG. The authors of one of the memos stated:

Supporting a war crimes commission should also be helpful in Congress and in responding to a proposal that Germany and Denmark have told us they intend to make in the [UNGA] on the creation of an international tribunal to deal with the former Yugoslavia. As you know from the [August 1992] London [International] Conference [on the FRY], German Foreign Minister [Klaus] Kinkel is personally committed to the proposal to create an international criminal court and it is possible that the proposal will garner widespread support in the UNGA. The Senate voted recently to support the creation of an international tribunal, and we have been invited to testify at Congressional hearings on this issue later this month. Supporting a war crimes commission that could investigate war crimes and make recommendations to the [UNSC] should assist us in preventing the premature or unwarranted establishment of international tribunals.82

 
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