U.S. Government Support for Multilateral Prosecution Organized by the UN Security Council

Explaining the exact forum in which the USG would support multilateral prosecutions of suspected Balkan atrocity perpetrators is a function of the USG’s pragmatism about the UNSC’s unique role and influence in international relations and international law. The UNSC was a natural venue for administering transitional justice for the FRY, in part because of the path dependence arising from the fact that it was already addressing atrocities in the region, but also because of its Chapter VII powers, which dictate that UN members “shall join in affording mutual assistance in carrying out the measures decided upon by the [UNSC].”149 An internal U.S./DoS memorandum from January 12, 1993, indicates that the U.S./DoS preferred that, if an ICT were created, that “it be established by the [UNSC]” as the UNSC was “already seized of this matter and ... has the authority to compel Member States to cooperate in prosecutions before such a tribunal.”150 The USG also publicly acknowledged the UNSC’s ability to require states to comply with the UNSC’s orders. The USG championed the UNSC on this dimension by stressing difficulties in voluntary, unilateral apprehension of suspects.151 Scheffer adds that haste in addressing the ongoing atrocities in the FRY also factored into this decision: “time was not on the side of a multiyear endeavor to create a war crimes tribunal for the Balkans along the conventional path [of a treaty.]”152

Independent experts recognized that, as a pragmatic matter, the UNSC possessed the proper authority to create and staff an ICT. Jerome Shestack, chairman of the International League for Human Rights, noted: “The [UNSC] has the power under the U.N. Charter to establish a tribunal, appoint the judges[,] and designate the procedures for indictment and trial.”153 Combined with the relative speed with which the UNSC could create an ICT, especially compared to more lumbering processes (e.g., negotiating and ratifying a treaty), using the UNSC as the authorizing body was almost universally acknowledged and desired. As Ferencz observes: “Almost all States recognized that creation of the [ICTY] by [UNSC] resolution pursuant to Chapter VII of the Charter had distinct advantages: it was expeditious, it could be effective immediately, and it was legally binding on all States.”154

No doubt the USG also had a particular political interest in favoring the establishment of the ICTY through the UNSC. The USG holds a privileged permanent seat on the UNSC and corresponding veto over resolutions with which it disagrees. Some USG officials from the time recall that the USG was conscious not only of limiting the scope of the ICTY but also of the precedent it was setting in the creation of ICTs. These officials believed that if the UNSC served as the ICT’s locus, the USG could assert control over the tribunal. Walker, for example, argues that the USG favored the UNSC forum “to have the US veto available to limit the mandate of the tribunal and any future courts.”155 Shattuck agrees, recalling that “[t]he U.S. regarded the [UNSC] as the only effective governing body of the U.N., which would also preserve U.S. sovereign prerogatives through the veto process.”156

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