A Permanent or Ad Hoc International Criminal Tribunal

The CoE’s potential impact on the creation of a permanent ICT in the early 1990s rankled the USG and some of its allies. As Melinda Kimble, Deputy U.S. Assistant Secretary of State for International Organization Affairs, and U.S./ DoS Legal Adviser Edwin Williamson discussed in a confidential memorandum dated September 25, 1992: “Belgium expressed concern that the proposed resolution [establishing the CoE] would conflict with the work of the UN Sixth

Committee on the creation of an international criminal court ... .”96 Several states, including from the European Community, advocated in mid-September 1992 for a permanent ICT that would have jurisdiction over atrocities allegedly committed in the FRY.97

In the same confidential U.S./DoS memorandum, Kimble and Williamson stated three reasons they believed “the question of bringing Yugoslavia war criminals to justice and the Sixth Committee efforts to create a broader, more permanent, international criminal court should be kept on two different tracks.”98 First, Kimble and Williamson argued that a non-international judicial process would be more appropriate: “we do not believe that Yugoslavia war criminals should necessarily be prosecuted in an international tribunal, rather than a domestic or regional tribunal.”99 Second, Kimble and Williamson were concerned about the implications an ICT for the FRY might have for the transitional justice forum used to address those suspected of bombing Pan Am flight 103: “we want to avoid the suggestion that the Libyans responsible for the bombing of Pan Am 103 could be tried in an international court rather than returned to the U.S. or U.K. for trial pursuant to [UNSC] Resolution 748.”100 Third, Kimble and Williamson did not want to hasten the process of creating a permanent ICT, especially as the USG believed a permanent ICT might pose greater threats to USG interests than an ad hoc one.101 In fact, Kimble and Williamson were so concerned about the form and function of a permanent ICT that they contended: “the current [UNGA] resolution should contain no language endorsing the creation of an international criminal court.”102 Further, the U.S./DoS sought “to persuade other countries to adopt our position ... .”103

An internal U.S./DoS memorandum indicates that, as of January 12, 1993, U.S./DoS officials retained concerns about a permanent ICT, but that they did not oppose its creation in principle at a later date.104 By the time this memorandum was circulated, the USG essentially considered the emergence of a permanent ICT with jurisdiction over atrocities committed in the FRY to be a moot issue. The memo argued: “The UN is not expected to be in a position to establish such a [permanent ICT] based on the ILC’s work any time soon. Thus, it would not be of use with regard to suspected Yugoslav or Iraqi war criminals or the two Libyans indicted for the bombing of Pan Am 103.”105

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