The International Criminial Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy.

Vol. 15 No.1 (January 2005), pp.68-70

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA: AN EXERCISE IN LAW, POLITICS, AND DIPLOMACY, by Rachel Kerr. Oxford: Oxford University Press, 2004. 248pp. Hardback. £53.00 / $98.00. ISBN: 0-19-926305-1.

Reviewed by Karol Soltan, Department of Government & Politics, University of Maryland, College Park. Email: ksoltan@gvpt.umd.edu .

This book is a detailed account of the establishment and the early years of the International Criminal Tribunal for the Former Yugoslavia (ICTY). The narrative begins (more or less) with the UN Security Council action which established the Court, and ends in 2001. The story of the Tribunal obviously does not end there, but it is as good a date as any to end an account of its establishment. Kerr’s book was first written as a dissertation (in fact, she still refers to it as a dissertation on page 9) and must have been finished around 2001 or 2002, because both the narrative and the references in the bibliography end there. This is a bit of a problem since the various relevant literatures have grown dramatically since then, and the story of the Tribunal has continued with much drama. So Kerr pays the price for having written on a subject that is very much evolving, both empirically and theoretically. But the book, for the most part, stays close to the ground empirically. It is likely to remain a useful account of this period of the development of the Tribunal, even as the story of the Tribunal evolves further, and the various theoretical and empirical literatures grow.

The book is, Kerr writes, “a systematic examination of the ICTY, what it is, why it was established, how it functions and what is its significance as a judicial institution operating for a political function“ (p.vi). It is not an attempt to study the effectiveness of the Tribunal. But it is, she writes, written out of a desire to understand better the realities of international criminal prosecution and to provide lessons for the future. The book is organized around the theme of the tension between politics and law, which reflects the main controversies which the Tribunal provoked, as did other tribunals of a similar kind before. Kerr uses the politics vs. law schema to organize her account, but without putting too heavy a theoretical weight on it. You might well be skeptical about such a schema, or about the form of it that Kerr uses. But the value of the book does not depend (it seems to me) on answers to such theoretical questions.

Kerr does begin with a very brief sketch of some relevant theoretical issues on the nature of law and politics, but she moves quickly past those issues into her empirical account: the details of how the court was established, its jurisdiction and procedure, state cooperation and judicial assistance, and the problem of prosecutorial discretion. She begins with an account of the establishment of the Tribunal by the UN Security Council, setting it in the context of the Wars of Yugoslav Succession, and the larger international situation of the early 1990s. She then gives an account of the more [*69] mundane details of setting up the Tribunal, getting financing, premises, furniture, and hiring staff as well as the more important organizational decisions required to make the Tribunal operational.

Kerr then proceeds to a detailed discussion of some of the key legal debates that dominated the Tribunal in its early days. These concerned, first of all, determination of the jurisdiction of the court, including the question of whether the Tribunal was competent to judge the legality of its own establishment. They concerned also the procedures the court would adopt. There were the usual trade-offs here between the requirements of fairness or due process, on the one hand, and the need to avoid excessive delay on the other. There were certainly strong pressures to get something done quickly. The desire to elaborate law that could serve as precedent for a future international criminal law system played an important role, but so did the need to make progress in resolving the problems at hand.

A separate chapter of the book considers the efforts to get states to cooperate with the Tribunal’s work, by providing it with diplomatic and financial support as well as help with investigations, arrests and other essentials of law enforcement. Perhaps the most important empirical chapter, given the organizing theme of the book, covers the issue of prosecutorial discretion, how the prosecutors decided whom to prosecute, and when and how to do it. Here certainly politics and law (as Kerr sees them) mix in most interesting ways.

Kerr emphasizes the practical importance of this Tribunal and of others like it, and hence also the practical importance of the literature that attempts to derive lessons from the experiences of these institutions. But we should not ignore the considerable theoretical importance of this literature. These tribunals are one of the cutting edges of the expansion of the role of courts in the world today. Both domestically and internationally we witness an unprecedented willingness to delegate decision making powers to courts. This is not exactly a recent phenomenon, but it has really accelerated in the years since World War II, and perhaps even more since the collapse of communism in Europe. This book does not address the nature of this larger process directly, but it makes its contribution by a detailed presentation of an important case.

I see at least two significant theoretical contexts for Kerr’s book. One is in the fast growing literature on war crime tribunals and transitional justice, recently reviewed by Leslie Vinjamuri and Jack Snyder (2004). Vinjamuri and Snyder contrast the legalistic and pragmatic approaches to the subject. For the legalists, to simplify drastically, pragmatic political considerations are and ought to be instruments for the establishment of the rule of law. For the pragmatists, by contrast these legal institutions are nothing more than instruments of ordinary interest-pursuing politics, and should be evaluated by the degree to which they are effective instruments of politics. Kerr fits well in the legalist camp; her main interest is to show that while law and Realpolitik do and must mix in the process of establishing the Tribunal, Realpolitik is (and should be) often made to serve the [*70] rule of law, rather than undermining or distorting it.

The other more theoretically elaborate context for Kerr’s book is the legalization framework first outlined in a special issue of INTERNATIONAL ORGANIZATION (Vol. 4, No. 3 (2000)) and then published by Goldstein et al. (2001) as an edited volume with MIT Press. The legalization framework considers three dimensions of international institutions which make them more law-like: delegation of decision making to courts, increasing rule precision, and strengthening the force of obligation.

The larger phenomenon here is delegation of authority to courts more generally, including domestic courts, which has also been receiving sustained theoretical attention (as has delegation to other institutions). Generally the phenomenon of delegation has a significant component of strategic interaction between principals and agents (what Kerr would call politics). But delegation to courts cannot be understood without some account of what the distinctive contribution of courts can be in such a transaction, and that seems to lie in the area of the justification or legitimation of decisions. In this context, too, Kerr’s work makes an interesting case study, showing how strategic politics, a game between various principals and an internally complex agent (in the form of the Tribunal) can produce a result which is a recognizable approximation of the rule of law, with whatever legitimating effects such a result gives.

REFERENCES:

Goldstein, Judith L., Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter. 2001. LEGALIZATION AND WORLD POLITICS. Cambridge: MIT Press.

Vinjamuri, Leslie, and Jack Snyder. 2004. “Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice.” 7 ANNUAL REVIEW OF POLITICAL SCIENCE 345-62.

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