The creation of the ICTY held great significance, and continues to, for the more general pursuit of transitional justice. The tribunal truly represents an institutional evolution, if not revolution, in transitional justice. According to Ferencz, the ICTY “constitutes an improvement over Nuremberg in that it is an independent body created by the world community; it also has improved procedural rules and impartial judges.”245 Moreover, the ICTY represents a political progression in transitional justice. The ICTY’s creation demonstrates just how much U.S.-Russian relations had improved in the immediate aftermath of the Cold War, and not merely because the two powers cooperated through the UNSC to establish the ICTY. As atrocities in the FRY came to light, the United States asked Russia to pressure the Serbs—with whom the Soviet Union had developed a strong relationship through the Warsaw Pact—to permit international inspectors into detention camps.246 While some suspected atrocity perpetrators were running for office, the United States and Russia sought to influence democratic elections in Serbia through a joint statement.247 Beyond the thawing of U.S.-Russia relations, the ICTY represents a further political development. As the UNSC’s first subsidiary judicial body, the ICTY exemplifies the potential for achieving consensus in the post-Cold War world among the UNSC’s five permanent members.
The establishment of the ICTY also illustrates again how the USG’s transitional justice decision-making has been determined by a combination of politics, pragmatics, and normative beliefs. First, the USG was motivated (or at least claimed to be motivated) by certain normative beliefs. USG officials stated outrage at atrocities allegedly being committed in the FRY. They argued that implementing a high, internationally recognized standard of due process was the only appropriate method of responding to suspected perpetrators, and that the USG had an obligation to punish them for violating international law. As demonstrated by, for example, Zimmerman’s October 1992 testimony before the CSCE, the USG claimed to support the creation of what would become the ICTY out of a commitment to and desire to promote the rule of law in the post-Cold War’s “New World Order.”
Other normative beliefs played a role in the Libya and Iraq cases. USG officials felt that, because the bombing of Pan Am flight 103 was not on par with the nature or scale of other atrocities that should prompt an international forum (specifically, in the FRY), an ICT was unnecessary and undesirable. At that time, then, USG officials apparently held the normative belief that terrorism should be addressed exclusively in domestic contexts. In the case of Iraq, USG officials also apparently held the normative belief that perceived tensions between peace and justice should be resolved in favor of the former.
But normative beliefs were not the only factor at work. If that were the case, the perpetrators of other atrocities that occurred at approximately the same time, such as the bombing of Pan Am flight 103 and Iraq’s crimes during the 1990-1991 Gulf War, would more likely have been handled through a similar transitional justice option of prosecution through an ICT or, at least in the case of Iraq, not through amnesty. Instead, the U.S./DoS sought to distinguish those cases along pragmatic and political dimensions to justify their disparate treatment. In response to the bombing of Pan Am flight 103, the USG favored domestic trials in the United States or the United Kingdom for the two Libyan suspects. USG officials believed that competent courts were already available and appropriate in the United States and the United Kingdom, civilian nationals of which represented the overwhelming majority of the bombing’s victims. In the case of Iraq, various political and pragmatic concerns—including the ongoing status of the Saddam regime, hope for domestic regime change, opposition from key regional powers, the context in which crimes were perpetrated, and prioritization of peace over justice—stifled USG support for prosecution, whether domestically or through an ICT.
Furthermore, if the USG had been committed to a legalistic transitional justice method, the USG would not have permitted implicit unconditional amnesty (and possibly also conditional amnesty) for some perpetrators of atrocities in the FRY itself. Pragmatic concerns over the safety of their own and other NATO troops dampened the USG’s support for apprehending suspected atrocity perpetrators.
Moreover, a normative belief in upholding legal obligations does not explain the form that prosecution took. Some of the USG’s beliefs—liberal or otherwise— shifted over time or were inconsistently held. For example, from the perspective of the USG according to its late-September 1992 confidential U.S./DoS memorandum, there is nothing necessarily superior about using an ICT rather than a regional or domestic war crimes tribunal. That position rests in tension with the USG’s perspective, voiced elsewhere during the road to establishing the ICTY, that certain crimes so shock the conscience of mankind that they should be addressed collectively by the international community (perhaps through an ICT, whether ad hoc or permanent). As another example, though the USG nodded to the UNSC’s efforts to address Balkan atrocities as a reason to create a transitional justice institution for the FRY through the UNSC, the USG did not favor this approach when handling either the Libya or Iraqi case, despite the fact that both situations were already being dealt with through the UNSC.
The ultimate USG decision to favor an ad hoc UNSC-sponsored ICT for the FRY was therefore motivated, at least in part, by political concerns. The USG, in particular because Bush, Sr. was seeking re-election, viewed the choice of transitional justice solution for the FRY as a way to combat criticism over its, and in particular his, foreign policy failures in the region and elsewhere. The USG’s role in and design of the ICTY was partly politically self-interested, as the USG (unlike some of its allies, such as Belgium and Germany) opposed the establishment at that time of a permanent ICT with greater jurisdiction. Instead, the USG wanted the ICT for the FRY to be a model for future ICTs while serving to preempt—and prevent—in 1993 the establishment of a permanent, global ICT or other transitional justice institutions the USG deemed potentially problematic. And the USG considered the exact form the ICTY was to take—an institution created by the UNSC—to be politically desirable, as the UNSC could obligate all states to honor its mandates, which would be critical to the tribunal’s success.
Issue linkage is a further political factor that drove USG decision-making in the Balkans case. The strategy pursued to create the CoE and then the ICTY itself reflects a great amount of issue linkage, at least from the USG’s perspective, regarding disparate transitional justice issues. The USG had concerns about issue linkages among institutions: that the creation of the CoE and/or ICTY could prompt the establishment of a permanent, global ICT. The USG also had concerns about issue linkages across regions: that the establishment of a transitional justice institution to address atrocities allegedly committed in one region (e.g., the FRY, the Middle East) or by citizens of a particular state (e.g., Libya) might negatively impact calls for addressing atrocities allegedly committed in other regions or by other states’ nationals.
Pragmatic considerations, alone or in combination with politics, also drove the USG’s eventual policy. The USG used this opportunity to combat apathy toward atrocities; to promote regional, global, specific, and general deterrence of atrocities; and to isolate and stigmatize their suspected perpetrators. USG officials further argued that their favored transitional justice solution of an ICT was the best method of promoting a lasting peace in the region, in part because the USG itself might not have jurisdiction. Relative to other options, such as a treaty, and relative to almost any other potentially sponsoring body, the USG argued that the UNSC provided the quickest, most authoritative, and most politically forceful mechanism for establishing what would become the ICTY.
Path dependence was another noteworthy pragmatic factor that influenced the form and shape of the transitional justice option for the FRY that the USG would support. The USG cited path dependence as a compelling reason to support the creation of a transitional justice institution through the UNSC, both because the UNSC already was addressing the matter of Balkan atrocities and because the UNSC was being used as a coordinating body to collect relevant evidence.
Finally, the “Nuremberg” precedent should not be overlooked, although it is arguably less significant than path dependence as a salient pragmatic factor. It is not clear whether this precedent exerted independent force on the nature and shape of what transitional justice option the USG would support for responding to the Balkan atrocities, or whether it merely reflected or strengthened what the USG would have supported even without it.
The study of the origins of the ICTY provides crucial insight into the USG position on the creation of a permanent, global ICT, what would eventually become the ICC. As discussed in this chapter, the USG opposed the creation of a permanent international criminal court, at least in response to atrocities perpetrated in the FRY. Near-contemporaneous atrocities, particularly stemming from Libya and Iraq, convinced the USG to prevent those crimes from falling under the jurisdiction of whatever ICT was going to be established at that time for the FRY. Where Americans had been killed, as in the case of the bombing of Pan Am flight 103, the USG wanted to exert greater control over the judicial process than an ICT would afford. The USG thus deliberately took a leading role in the design of the ICT for the FRY in part to prevent it from becoming a permanent ICT with global reach. The USG strongly favored transitional justice options, including ICTs, which it was confident would not threaten its interest in preserving maximum flexibility to oversee crimes involving Americans. Given that the Rome Statute establishing the ICC was not adopted until 1998 and did not enter into force until 2001, the USG achieved its dual goals in 1993 of establishing an ad hoc ICT with jurisdiction limited to the FRY and inhibiting the creation of a global, permanent ICT at that time.
Some political factors that played a role in earlier USG policy on transitional justice issues were not significant in the creation of the ICTY. For example, the change in presidential administrations, including the switch from one governing political party to another, did not affect the path toward the ICTY. Unlike the shift from FDR to Truman, the Clinton administration continued the Bush, Sr. administration’s support for its preferred transitional justice option for the FRY.
The USG’s previously classified documents, discussed in this chapter, acknowledged that the process of establishing the ICTY was a mix of politics, pragmatics, and normative beliefs. As one internal memorandum observed in April 1993: “Depending on prevailing circumstances and the attitudes of members of the [UNSC] on various aspects of [adopting a statute for and establishing and organizing an ICT for the FRY] ..., this task may be difficult and require close coordination among the Perm[anent] Five [members of the UNSC] and other States.”248 Also, as one observer of the ICTY creation process noted at the time, “setting up a tribunal for war crimes ... depends as much on favorable political winds as on legal precepts.”249 Rather than a normative belief reflecting legalism, this chapter has yet again demonstrated that political and pragmatic considerations so central to prudentialism factored significantly (and probably more so) into the USG’s calculus on transitional justice issues, in this case arising from atrocities concerning Libya, Iraq, and the FRY. As discussed in the final case study of this book, the Rwanda experience further bolsters that conclusion.