Defendants in Custody
In the course of negotiations leading to the establishment of the ICTY, some USG officials contended that it would be premature to create an ICT for the FRY before apprehending suspects. For example, the USG invoked the Nuremberg precedent as a rationale for establishing the CoE, which enabled war crimes investigators first to collect evidence, followed by “a tribunal [that] was convened only after defendants could be brought into custody ... .”157 Senior USG officials also argued internally that an ICT for the FRY should not be established unless and until “appropriate defendants” were in custody.158
Nevertheless, the ICTY’s formation predated the capture of some relevant suspects, including many of the allegedly most egregious offenders. The ICTY indicted both Karadzic and Mladic in 1995, but Karadzic was not caught until 2008, and Mladic was not arrested until 2011. The ICTY indicted Milosevic in 1999 but he was not apprehended until 2001.159 Indeed, only relatively “small fish” were in custody early on, and even by 1996—three years after the ICTY was established—fifty-six of the more serious indictees were still fugitives.160 Why, then, did the USG continue supporting the establishment of the ICTY in 1993 despite the fact that some USG officials implied that they would not?
One explanation for this seeming inconsistency is that USG officials working toward the establishment of the ICTY did not universally hold the view that the tribunal should not be created until potential defendants were caught. Matheson, for example, denies recalling this view, and emphasizes that he did not share the sentiment in any event.161
Another, stronger explanation is that, in the face of difficulty apprehending “big fish,” the USG’s priorities for the ICTY fluctuated over time. According to Michael Scharf, legal scholar and former U.S./DoS Attorney-Adviser for UN Affairs, USG officials “never really thought they’d get Milosevic, Karadzic, or Mladic ... .”162 Instead, some USG officials settled for the more general significance of creating the ICTY. As Shattuck argued: “Justice doesn’t have to ultimately mean putting people behind bars ... . I would not measure [the] [ICTY] in terms of how many people go to jail, or top-level people, because the number is going to be very low. Success is a commitment to establish principles of accountability, getting out the truth.”163 From the standpoint of 1993, that only some suspects would likely be tried was therefore not necessarily a reason to oppose the creation of an ICT for the FRY. And the fact that many of the “big fish” were eventually apprehended and prosecuted by the ICTY rewarded ICTY advocates’ early optimism in the tribunal’s ultimate reach.
2. Near-Contemporaneous Potential Transitional Justice Demands While atrocities in the Balkans raged and the USG considered how to respond, crises erupted elsewhere in the world that presented the USG with other compelling transitional justice problems. In particular, the U.S./DoS remained conscious of how supporting a war crimes commission for the FRY would implicate situations concerning Libya and Iraq. Ultimately, though, the USG compartmentalized the conflicts and prioritized the FRY; the U.S./DoS argued in a confidential memorandum: “We believe the situations [concerning Libya and Iraq] can be distinguished [from the FRY] and the political imperative with regard to the situation in Yugoslavia outweighs these concerns.”164 This section considers why the USG did not lobby for addressing Libyan and Iraqi cases in an international forum (i.e., an ICT) under the same standards from which the USG advocated for the FRY.