Transitional Justice Options the UN Seriously Considered

By signing the Genocide Convention, members of the international community— including the United States—committed themselves not only to addressing suspected genocide perpetrators punitively, but also to adopting one of two prosecutorial mechanisms. Specifically, trials had to occur either domestically (in the state where atrocities were perpetrated) or internationally (through an ICT). Hence, signatory states were unsurprisingly predisposed to these particular transitional justice options, at least for instances of genocide, by the time the Balkan atrocities were perpetrated. These states were obligated by treaty not to implement other transitional justice options—such as inaction, amnesty, exile, lustration, indefinite detention, or lethal force—for suspected genocide perpetrators from the FRY.

Almost immediately after atrocities in the FRY came to light, the international community, operating through the UN, declared that it would seek to prosecute the culprits. Echoing the Genocide Convention’s provisions, this rhetoric apparently ruled out inaction and other non-prosecutorial mechanisms as serious options. The only remaining question concerned the type of prosecution to implement.

In addition to the two basic options the Genocide Convention required, the international community also considered whether an ICT, if chosen, would be ad hoc or permanent; under the auspices of or outside the UN; and, if under the UN aegis, via the UNSC or another UN organ, such as the UNGA.

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