ABSTRACT
The United Nations Security Council’s (UNSC) establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) marked the first time since the Nuremburg and Tokyo military tribunals, held in the immediate aftermath of the Second World War, individuals responsible for serious violations of International Humanitarian Law (IHL) were brought to trial before an international court. The act of bringing individuals to trial before international judicial bodies at Nuremberg and Tokyo for not just the crime of aggression and crimes of war, but also crimes against humanity,1 represented a cursory attempt to move beyond the mere codification of IHL to the creation of a judicial IHL enforcement mechanism. The recognition of jus cogens law, and erga omnes obligations by the post-war military tribunals meant IHL enforcement had been at least partially wrestled from the exclusive jurisdiction of individual states and signaled the beginning of a renegotiation of the relationship between international criminal law and hitherto dominant post-Westphalian conceptions of state sovereignty. While some scholars interpreted the legacy of Nuremberg and Tokyo as providing a foundation for a paradigmatic shift away from state sovereignty based conceptions of international society (Cassese 1998, Hagan 2003: 29-30), this book will impart two key lessons that will demonstrate a need for greater engagement with the question of state interaction with international criminal justice bodies. First, triumphal interpretations of international criminal justice serve to obscure the continued dependency of international criminal justice regimes upon the state system and thus fail to adequately engage with the question of state compliance with tribunal
orders.2 After all, Nuremberg and Tokyo’s appeals to jus cogens law and erga omnes obligations did not translate into the creation of a permanent international judicial body with the authority to adjudicate crimes against humanity and violations of the laws of war. Instead, an international criminal justice regime only emerged in February 1993 when the UNSC adopted Resolution 808, which called for the creation of an international criminal tribunal to prosecute individuals for serious violations of IHL on the territory of the former Yugoslavia.3 Second, increasing rates of compliance with international rules should not be interpreted as an indicator of regime legitimacy or norm internalization.4 In the former Yugoslavia, state governments articulated a distinctly different understanding of compliance acts that focused on recasting wartime perpetrators as postwar victims. Moreover, it will be demonstrated in forthcoming chapters that compliance acts in relation to ICTY requests and orders occurred in the context of a complex bargaining process that relied heavily on the deployment of material incentives and disincentives by external actors and not an acceptance of the legitimacy of the ICTY’s prosecutorial mandate.
