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This chapter analyses the decision to establish the International Criminal Tribunal for the Former Yugoslavia from the legal, political, and diplomatic context in which it was taken. The tribunal was a product of interconnected pressures: concern among domestic public opinion, the failure of the international community to stop the fighting, and changes in international political systems in the early 1990s. It represented the convergence of UN Security Council powers and responsibility for international peace and security, with enforcement of international humanitarian law. Although it was a tool of politics, it is a judicial, not a political tool.

The delivery of humanitarian assistance in the midst of armed conflict, the creation of putative safe areas, and arrangements for temporary relocation and stays abroad were policy innovations tested in the case of the former Yugoslavia over the past decade. While increasingly prevalent, ‘state building’ in connection with the return and reintegration of refugees resulted in uneven outcomes over the past decade. Despite the mixed outcomes, the international community is likely to resort to such approaches in the future. Recent experience, however, teaches that expectations relating to state building should be modest. But the UN system and other international organizations must strengthen their capacities to meet even modest expectations.

Describes how the international community has sought to advance the consolidation of democracy, transformation to a market economy, promotion of regional peace and security, and the protection of human and minority rights in the area of former Yugoslavia. This chapter defines the ‘international community’ as comprising all external actors engaged in seeking to resolve the Yugoslav crisis, including the joint activities of the European Union, USA, and Russia. Given the conflicts in Croatia and Bosnia‐Hercegovina, as well as the Kosovo crisis in 1999, external actors gave priority to peace building over the promotion of democratic goals. The first part of the chapter analyses the role of international factors in the disintegration of Yugoslavia, concentrating on the new states of Slovenia, Croatia, and Bosnia‐Hercegovina, Macedonia, and rump Yugoslavia. The second part examines the Dayton Accord as an example of direct external engagement to promote peace in the region. The third part analyses the main Western plans, the regional approach of the EU and US approaches, which seek the promotion of security through cooperation in the region. This part also assesses the policies adopted by external actors, and their efficiency in contributing to regional peace and security.

This chapter discusses the process of creating the International Criminal Tribunal for the Former Yugoslavia. It charts the process from the adoption of Resolution 827 on May 25, 1993 to the end of the establishment in 1996. Tremendous logistical, financial, and political problems were overcome to transform the Tribunal from a ‘nebulous idea’ of the Security Council into a reality. These include finding premises, building courtrooms, recruiting staff, coping with a limited budget, and appointing a prosecutor.

This chapter examines issues associated with the formulation and interpretation of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The main contribution of the jurisprudence of the Tribunal was ironing out some of the complex issues of procedure, which will be useful in cases before the International Criminal Court, national court, and other ad hoc tribunals. The example of the ICTY shows that there are a series of trade-offs that must be managed. Finding the correct balance means understanding the relationship between the internal and external mandate of the Tribunal - justice must be done, and seen to be done.

This chapter examines the balancing of diplomatic, political, and judicial roles in the operation of the International Criminal Tribunal for the Former Yugoslavia. It presents the legal framework for international cooperation and judicial assistance, and discusses the various levels at which cooperation occurs in practice. It argues that nature and extent of cooperation depends on political will. In its early years, the Tribunal had difficulty obtaining political, diplomatic, and logistic support from the very governments that voted for its establishment. The situation has improved over time, notably following the completion of a peace agreement for Bosnia.

This chapter examines the legal framework, politics, and logistics involved in the International Criminal Tribunal for the Former Yugoslavia’s apprehension of the accused. It considers custody obtained through arrests by national police authorities, detention by international forces, and voluntary surrenders. It discusses the political and judicial consequences of apprehending suspects.

The political mandate of the International Criminal Tribunal for the Former Yugoslavia impacted jurisdiction in three ways. It influenced the drafting of the Statute of the Tribunal in such a way that it became a very conservative document, due to a perceived need to ensure that the law applied by the Tribunal had a sound legal basis. It defined the territorial and temporal jurisdiction of the Tribunal in as much as it was tied to the situation that was deemed a threat to international peace and security. Finally, it impacted the interpretation of jurisdiction by the court because prosecutors and judges tended to view decisions handed down by the court as relevant not only to the case at hand, but to the development of international humanitarian law.

This chapter discusses the prosecutorial discretion exercised by three incumbents in the post of Chief Prosecutor in the International Criminal Tribunal for the Former Yugoslavia: Justice Richard Goldstone (1994-96), Justice Louise Arbour (1996-99), and Justice Carla Del Ponte (1999 onwards). The Goldstone era was characterised by very public indictments and Rule 61 proceedings aimed at raising the Tribunal’s profile. Arbour deployed the legal force of the Tribunal to ensure that it was a fully functional criminal court by the time she departed. The Del Ponte era was characterised by a more public and open approach to discussing ongoing investigations.

Assesses the success of the two humanitarian interventions in the Balkans – Bosnia in 1995 and Kosovo in 1999 – from the perspective of humanitarian organizations. It argues how, ironically, the effectiveness of organizations such as UNHCR can dissuade powerful states from taking the necessary steps to address the root causes of massive human rights violations. Slow and ambiguous action from the international community can raise false expectations on the part of suffering civilians, and embolden those who commit atrocities. The author argues that the political, military, and humanitarian strands of interventions are always closely interwoven, and draws a series of lessons from the Balkans experience: the need for the international community to act early, credibly, and consistently; the importance of preserving the identity of a humanitarian operation; the imperative to end the impunity of those who orchestrate and commit massive violations of human rights; and the importance of engaging the United Nations.

This chapter presents a synthesis of the discussions in this volume. The establishment of the International Criminal Tribunal for the Former Yugoslavia was part of a wider trend towards accountability and enforcement of international humanitarian law. The external political function did not undermine the Tribunal’s status as an impartial judicial body. Instead, it enhanced its effectiveness.

This chapter demonstrates how the Rome Statute creates a Court that is legally separate from the society of states. To the extent that it gives victims of core crimes a means of legal redress that they would not otherwise have, the Statute helps to constitute ‘world’ as opposed to ‘international’ society. This claim is qualified by noting how the Court will in many respects be dependent on state support and by highlighting how the concessions that were made to the values of international society (i.e. sovereign consent and international order between states) complicates the Court's claim to be independent. As background to this analysis, the chapter summarises the various ways in which the English School have sought to define world society. It also describes how the UN Security Council's creation of ad hoc courts extended a ‘solidarist moment’, which was ultimately weakened by the charge of selective justice and the material costs of setting up and running such courts.

This introductory chapter discusses the alleged ‘politicisation’ of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The UN Security Council established the ICTY on May 25, 1993 as a mechanism to restore and maintain international peace and security. Although its establishment was politically motivated, its internal mandate is to deliver justice. To be successful, the ICTY must walk the fine line between law and politics. An overview of the chapters included in this volume is presented.

This chapter argues that the international community's response to alleged war crimes in the former Yugoslavia must include the establishment by the Security Council of an ad hoc international criminal tribunal. The risks and difficulties of establishing such a tribunal require that the international community be cautious to avoid unrealistic expectations. However, despite its desirability, it is probable that the tribunal will not be very effective.

This chapter begins by tracing the development and growth of the International Criminal Tribunal for the former Yugoslavia (ICTY). It then describes the data used in this study, the respondents, and discusses attitudes toward punishment for war crimes and its purposes. An overview of the subsequent chapters is also presented.

This introductory chapter sets out the purpose of the book, which is to present a history of the birth and rise of the Partisans in Bosnia-Hercegovina, as a Communist-led movement of resistance to the German and Italian occupiers and their domestic collaborators; of the emergence of a Chetnik movement as a conservative, Serb-nationalist rival to the Partisans; and of the conflict between the two. It analyses the impact that the conflict with the Chetniks had on Partisan policy and organization, and the evolution of the Partisan movement under the influence of this conflict. Finally, it examines the sequence of events that enabled the Partisans to emerge effectively as the victors in the contest with the Chetniks in Bosnia-Hercegovina by the autumn of 1943, and the reasons for the Partisan success. An overview of the subsequent chapters is also presented.

In its opinion and judgement of May 7, 1997, in Prosecutor v. Tadíc the trial chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 faced the question of whether the conflict in Bosnia–Herzegovina was an international armed conflict. If so, the grave breaches provisions of the Geneva Conventions for the Protection of Victims of War would become applicable, in addition to other provisions of international humanitarian law applying to such armed conflicts. In resolving that question, the majority of the trial chamber sought guidance in the ruling of the International Court of Justice in the Nicaragua case. That resort was inappropriate because the Nicaragua case dealt with quite a different question: whether, for legal purposes, the contras either constituted an organ of the United States Government or were acting on its behalf. If so, their acts could be attributed to the United States for purposes of state responsibility. The pending appeals of the trial chamber's decision offer the appeals chamber a unique opportunity to correct the course.

This chapter offers background and analysis regarding the dissolution of the former Yugoslavia, citing key social and political moments and shifts in power that laid the groundwork for the eventual manipulations of the masses necessary in order to implement genocide. The complicated relationships among Yugoslav nations are examined, as well as how fallout from economic challenges brought about by the transition to a market economy was linked to a rise in nationalism. A particular strain of Serbian nationalism, given life by ancient cultural symbols and myths – especially the story of martyrdom of a 14th century Serbian prince in Kosovo – is specifically analyzed as having developed into a form of “cultural nationalism” that feeds proponents of a “Greater Serbia” to this day. As this chapter explains, a number of these key facilitating factors, combined with the myth-based propaganda of a deftly exploitive Slobodan Milošević, turned out to be the ideal environment in which to fertilize genocidal ideology.

This chapter presents Theodor Meron's speech at Potočari Memorial Cemetery. He shares his special wish to visit the cemetery because he had the privilege of sitting as the Presiding Judge in the appeal which, for the first time, judicially recognized the crimes committed against the Bosnian Muslims in Srebrenica in 1995 as genocide. In that case, named Prosecutor versus Radislav Krstič, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia convicted one of the leaders of the Bosnian Serb assault on Srebrenica, General Radislav Krstič, for aiding and abetting genocide. In honor of the memory of the many victims of this crime lying in this cemetery, Meron reads a brief passage from the judgment in Krstič.