| dc.description.abstract | The establishment of the International Crirninal Tribunal for the former Yugoslavia
With the August 1992 documentation of widespread, planned and systematic war crimes in Croatia and Bosnia-Hercegovina, the question of establishing an international war crimes tribunal reemerged on the international political agenda. The issue had been on the United Nations agenda ever since the Nuremberg trials, but the efforts were time and again stopped. Such a tribunal constituted too much of an imposition on the sovereignty of states to conduct their own wars and prosecute their own crirninals. Many wars with horrendous violations, for example in Cambodia, were allowed to continue without any construction of a court. When already on 22 February 1993 the Security Council adopted resolution 808, establishing the International Criminal Tribunal for the former Yugoslavia, this was consequently a historie, controversial and somewhat unexpected decision. How could it come about?
We shall use regime theory to help identify the most crucial elementa, which divides the analysis into three questions: Why had nothing happened before? What placed the issue on the agenda this time? Which political processes made it possible? These three questions emerge because the problem consists of three issues. First, we must trace the existing humanitarian law regime and previous efforts at establishing a tribunal. Secondly, we must trace which mechanisms were available and made use of by the "humanitarian regime", and how they became effective. Thirdly, we must place the decision to establish the Tribunal within the context of the Security Council's action towards the BaLkan war in specific and in the postCold War era in general. Altogether, it becomes an analysis of the dynamics of regime development, in the cross-section between international law and politics.
Let us look more carefully at what issues these three questions intend to address. Chapter 2 gives the study its theoretical approach. Its eim is to operationalize some variables from regime theory for the analysis in chapters 3-5. We must therefore explain and evaluate the elementa of regime theory which we shall make use of. Using Krasner's definition of causes for regimes, we may evaluate whether international humanitarian law can be defined as a regime, and give a closer description of some of its elements.
Chapter 3 will address the first question: why had no tribunal or court been established before? The chapter looks at the possibilities for a tribunal within the existing provisjons of humanitarian law. It traces the key pillars of humanitarian law, the Genocide Convention, the Nuremberg Principles, the Geneva Conventions and the general principles of the law of war, in order to answer whether there were no measures or provisjons within existing humanitarian law which could force the parties to adhere to it? And secondly, how come the international community had been unsuccessful for almost fifty years in establishing a credible deterrent to war crimes, after the experiences of Holocaust? What had been done? While humanitarian law contains numerous provisjons for implementation, and a UN organ had ever since the Second World War attempted to develop a tribunal, no such institution could come about without a political action.
Chapter 4 will address the second question: what placed the issue of a tribunal on the agenda this time? The chapter will look at the mechanisms available to react to a humanitarian crisis in Europe, including non-governmental organizations (NGOs), intergovernmental organizations (IGOs), and the United Nations system. We shall use elementa of regime theory to identify the actors and their tools and to evaluate their effect. An NGO caused the shock which forced political decision-makers to focus on the issue. The IGOs and UN organs were saken captive by the rapporteurs they had appointed, and became hesitant lobbyists towards the Security Council for a tribunal.
The ICTY was established by an un animous vote in the Security Council . Chapter 5 must therefore ask why this time there was finally political consensus for such an institution. The chapter places the decision in the perspective of the Security Council's actions towards the conflict in the former Yugoslavia, its general interpretation of its mandate in the post-Cold War era, public focus and opinion on the issue, and the national interest of the five permanent members. It is my hypothesis that the issue of a Tribunal severely challenged the legitimacy of the Security Council. The process of establishing the International Crirninal Tribunal for the former Yugoslavia therefore incorporates and makes visible all the possibilities and weaknesses of the so-called new world order. | nor |