Under its Charter, the UN had no power to set up its own criminal tribunal:
“Examination of the history, background, drafting and approval of the UN Charter will convince everyone that there would never have been a United Nations if the five permanent members established in the Charter..thought there was any possibility it could create a criminal court” (Ramsey Clark, former US Attorney General).
The Tribunal was created by the Security Council in its Resolutions 808 and 827 of 1993. Both resolutions stated that the situation in Bosnia at that time constituted a threat to international peace and security and that a tribunal to prosecute war criminals would help to restore peace. But there was no basis for the characterisation of the situation in Bosnia as a threat to international peace. It was a civil war (partly controlled by the very countries which wanted to create a tribunal). The members of the Security Council had to characterise it as an international conflict because otherwise the Security Council had no jurisdiction to act. The basis for this characterisation was Resolution 688 of 1991 in which the Security Council stated that disregard for human rights constitutes a threat to international security which could no longer be treated as an internal matter. This reinterpretation, effectively a revision of the UN Charter, undermines the very basis of the Charter.
The only legal way for the UN to set up the ICTY would have been via formal amendment to the Charter – something which has never happened and they knew would not happen in this case – or by a treaty which would have required a unanimous vote from all UN member states.
The UN General Secretary in 1993, Boutros Boutros Ghali, stated this position clearly in May 1993. He said:
‘The approach which in the normal course of events would be followed in establishing an international tribunal would be the conclusion of a treaty by which the member states would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body (e.g. the General Assembly or a specially convened conference), following which it would be opened for signing and ratification. Such an approach would have the advantage of allowing for a detailed examination and elaboration of all issues pertaining to the establishment of the international tribunal. It would also allow the states participating in the negotiation and conclusion of the treaty to fully exercise their sovereign will in particular whether they wish to become parties to the treaty or not”. (UN Secretary General’s Report no. S/25704 (section 18) of 3 May 1993).
Having wrongly assumed the right to legislate, the Security Council ventured to take another step: it delegated its nonexistent legislative competency to its creature – the International Criminal Tribunal at The Hague. Under Article 15 of the Statute of the International Tribunal it authorised its judges to adopt rules of procedure and evidence for the conduct of the pre-trial phase of proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. In this way the Security Council not only legislated, but also authorised the Tribunal to be its own legislator with regard to criminal procedural law.
Canadian barrister Christopher Black, who served as an ‘amicus curiae’ defence lawyer at both the ICTY and the Rwanda Tribunal, wrote:
“Chapter VII of the UN Charter requires that there be a threat to the peace or an act of aggression before the Security Council can make use of its special powers set out in that Chapter. It has always been interpreted to mean and was meant to mean a threat to international peace not national peace. The members of the Security Council recognised this and so had to redefine a national problem as an international one. Yet in all those speeches and memoranda there is not one compelling reason given for doing this except vague references to the collapse of the socialist bloc, and the imperative to establish a new world order. German Foreign Minister Hans Dietrick Genscher in a speech to the Canadian parliament stated unequivocally that no nation would any longer be allowed to ignore Security Council decisions. Even if this redefinition were a legitimate interpretation of the UN Charter, which it is not, the UN Charter only speaks of economic measures and then military measures, not judicial or criminal measures.”
The UN offered very feeble justification of its unconstitutional step of empowering the Security Council to set up the ICTY under Chapter VII of the Charter. It cited the report of a so-called Commission of Experts which had proclaimed a humanitarian emergency on the basis of carrying out what seems to have been a cursory review of international press coverage (which later proved to be hugely exaggerated and inaccurate). It cited also the report of a self-appointed committee of French jurists which advised that a criminal tribunal set up by the UN under the powers of Chapter VII would be alright. The standing of these jurists and the relevance of their expertise was not explained; nor was the reasoning behind their conclusion. At the very least the UN should have brought this matter forward for debate and vote at the General Assembly of the UN.
Numerous members of the Security Council (China, Spain, Venezuela, Japan, UK, New Zealand, Brazil) expressed unease over the creation of the ICTY under the powers of Chapter VII during discussion of resolution 827. The Security Council member states said that it was only the urgency of the humanitarian crisis which persuaded them to vote in favour of the resolution. We now know that this “urgency” was based entirely on propaganda claims that more than 200,000 people had died in the Bosnian conflict during the first 6 months of fighting. This ridiculous figure (cf 60,000 British & Commonwealth civilian deaths in the whole of WW2) was more than 6 times the final total body count of all the conflicts in the former Yugoslavia during the 1990s.
In the Resolution debate, members of the Security Council were at pains to say that the ICTY should operate according to the highest legal standards, observing total objectivity and impartiality at all times. They gave a formal instruction that the ICTY should confine itself to implementing existing international law and should not attempt to change the law in any way. These points were repeated and endorsed by the UN Secretary General in his closing summary. However, those who took charge of the creation and operation of the ICTY totally ignored these instructions.
The UN Charter states that nothing contained in the Charter shall authorise the UN to intervene in matters which are essentially within the domestic jurisdiction of any state. This fundamental principle, included in the Charter so that the UN could not be used by some members to bully others, has also been fatally undermined by the creation of the Tribunal. Of the permanent members of the Security Council, more now hold the opposite position for reasons more to do with imperialism than humanitarianism.
Armed with Resolution 827, the then US Ambassador to the UN, Madeleine Albright, took immediate control of the creation of the ICTY. The ICTY’s Statute, the constitutional document which defined its powers and areas of operation, was swiftly put in place by a team led by David J Scheffer, an enthusiast for ‘supranational justice’. It provided the ICTY with far more power and much greater discretion than the Security Council had agreed. This power was used with liberal abandon throughout the 24 years of the ICTY’s existence.