International Criminal Tribunal Born as Bastard?

05/30/2013 12:41 pm ET | Updated Jul 30, 2013

They only had a dalliance with the initiative to form the first international criminal tribunal and largely as a rationalization to avoid engaging Slobodan Milosevic's sponsored assault upon Bosnia & Herzegovina. What started though as a sordid affair of insincerity somehow has resulted in the establishment of several international tribunals from ex-Yugoslavia (ICTY) to Sierra Leone and finally in the creation of the permanent International Criminal Court (ICC). This month marks the 20-year anniversary since the UN Security Council (UNSC) established the ICTY or more fully the International Criminal Tribunal for former Yugoslavia (UNSC Resolution 827 on March 25, 1993.) While the ultimate contributions of the ICTY to the rule of law, justice, reconciliation and lasting peace will remain subject to debate, without this moment of impetus most likely the ICC would still be the utopian ideal of many well informed and intentioned global citizens but stunted in its realization. Regardless, I had the fortune to be there for the birth of both the ICTY and the ICC, and perhaps give a critical push then to the realization of what is still a work in progress today.

An Insincere Response to Genocide and Aggression?

The notion of an international criminal tribunal was put forward by some members of the UNSC sincerely, but most of the big powers only grasped it to avoid accountability for having failed Bosnia & Herzegovina and its people and the call for a more resolute response. In August of 1992, systematic murders and concentration camps in BiH were uncovered on a wide scale by global media. What perhaps was as damning is that not only had we, the BiH Government, asserted such facts but the evidence had been documented by UN peacekeepers/monitors on the ground -- only the UN hierarchy had failed to disclose such information to the public or most member states of the UN, including the non-permanent members of the UN Security Council. When I confronted a UN official why this information had not been made public, he asserted that it had been "made public to those that should know."

Some or most of the UNSC Permanent Members undoubtedly had good evidence that genocide as well as aggression were being waged against BiH and its citizens. The fact of systematic violations of international humanitarian law was unchallengeable. In August 1992, the big capitals were desperate to appear to be doing something when in fact they were only waiting, perhaps some hoping, for a quick death to Bosnia as to relieve them of the embarrassment of the appearance of impotence. The big capitals offered two face-saving, perhaps delaying gestures. Another international conference at the end of August in London was scheduled. (In the end, the London Conference was encrusted with many promises but few kept.)

A Gesture to Rationalize Inaction?

The second gesture was to promise an international tribunal to prosecute the guilty. The mirage that some hoped to create is that even if not acting then to confront the killers and violators of international humanitarian law, nonetheless such would ultimately have to face justice. This promise of justice in the future to excuse no action then though was perhaps also lacking sincerity/commitment; however, then who would really care once the conflict ended and in particular if BiH disappeared?

There had to be at least the facade of substance. After some delay, the UNSC established a Commission of Experts, by Resolution 780 on October 6, 1992, to evaluate the idea of an international criminal tribunal for the former Yugoslavia. Perhaps it is appropriate to name Professor Cherif Bassiouni as the ICTY's first father. As a member of the Commission, Cherif constituted a team that documented the breadth and evidence of the crimes committed in just the first few months of the conflict/ethnic cleansing as to make it difficult to negate and thus bury the initiative for an international tribunal. (The procedures and laws to be applied by the future ICTY would evolve over time.)

A Country and Future Defined by the Rule of Law

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However, even with Professor Bassiouni's effort, the fetus of the Tribunal would be stillborn without a final resolution of the UNSC to deliver it. In the spring of 1993 there was another non-memorable diplomatic initiative being fostered upon the stage -- the so-called "Spanish Initiative." I understood it as another false promise and took the opportunity to expose it as to embarrass Europe and particularly Washington to do more. Think by then these capitals were also becoming frustrated that the internal predictions of BiH's imminent demise were not coming true in large part due to the courage and ingenuity of BiH's citizens and citizen soldiers. In return not to further embarrass Washington before the UNSC, Ambassador Madeleine Albright and I made a deal that the US would press ahead with the establishment of the ICTY as well as adopting/enforcing the "no-fly" zone. (I have little doubt that Ambassador Albright was also a committed supporter of the ICTY but needed a "deal" with me as leverage to press doubters/opponents in Washington on the idea of an international tribunal -- Washington had many different and at times contradictory currents then as now as it relates to the future of BiH and as a country defined by the rule of law and universal values of human rights and open society.)

An Accommodation with the Fruits of Ethnic Cleansing & War Crimes?

The ICTY, as well as the "no-fly zone" would be imperfect in application. Many of the key capitals would look to control the education of the infant ICTY by providing selective evidence as well as support. At least some official and not so official functionaries were deployed to influence consistent with their capitals' perceived interests rather than deliver unbiased justice or secure a true historical record or reconciliation. Many Bosnians/Herzegovinians have reason to be ultimately disappointed -- particularly some rulings/justices have seemingly sought to marginalize the systematic nature of the crimes and their planning/execution linked directly to state action, particularly Milosevic's Belgrade. The consequence may be to minimize the role of then Belgrade and rather attribute as much as possible to individual actors. By marginalizing the historical record of genocide as well as institutions, the desired effect is to rationalize the inadequate response at the begging of the conflict and ethnic cleansing but also to make the Dayton Accords seem less of an accommodation with the consequences of such crimes and grave violations of international humanitarian law.

Critical Catalyst for a Permanent International Criminal Court

A more thorough and perhaps favorable evaluation of the ICTY's work is not possible now, and I wish to be fair and generous to the many truly committed and effective officials who labored for the rule of law and justice. However, the ICTY undoubtedly can take credit for being the first crucial step and absolutely necessary momentum for the Rome Conference, Rome Statute of 1998, and ultimately the establishment of the ICC. From 1993 to 1998, BiH and I were willing participants and supporters for a permanent International Criminal Court. During the Rome Conference, the BiH delegation led by me can take credit for two defining initiatives. Empowered by the tragedy of a recent history of mass rapes and "enforced pregnancy," we were able to persuade participants to adopt a class of "gender based" offenses, an unprecedented legal formulation. Also, emerging from this brutality, nonetheless we were in a position to persuade that the death penalty was unnecessary and in fact counterproductive -- justice is not to be swallowed by a hunger for punishment or revenge. Rather, it is about a historical record and also the offenders recognizing the wrongs and thus providing closure for both victims and those who may have been willingly or not associated with the perpetrators' actions.

Peace Orphaned Without the Rule of Law

War and diplomacy have been the instruments defining our regional and global relations, and more often than not leaving much wanting. Increasingly though, it is becoming recognized that no conflict is truly dowsed and no peace and reconciliation is lasting without the rule of law and at least the impression that justice prevails. Not born a bastard, the ICC has pedigree and utility including the precedent of the ICTY, but the most important lesson/legacy is that a peace without the rule of law becomes an orphan.

@MuhamedSacirbey

PHOTO (1993 Left to Right: Stuart Seldowitz, US Mission to the UN Assistant Responsible for Southeast Europe; Ambassador Madeleine Albright; Ambassador Muhamed Sacirbey)