Report by the UN Secretary General, 3 May 1993
Date of publication: 03/05/1993
The Secretary General was commissioned to draw up a report by Security Council Resolution 808 (22 February 1993). This report outlined the structure of the future ICTY and it constitutes one of the legal bases for it. The Report is interesting for a number of reasons, not least because it justified the clear abuse of due process involved in the Security Council acting as an administrator of justice. Never before had powers under Chapter VII of the UN Charter been used to create judicial powers: Chapter VII powers had always been understood previously to mean military action to counter a threat to international peace and security. This report expresses therefore the very essence of the new interventionism: whereas the UN system was designed to prevent war between states, here the Security Council was setting itself up as a moral and judicial arbiter over a civil war.
The report also explicitly sacrificed legality to expediency when it recommended that the Security Council impose the new tribunal on the former Yugoslavia instead of drawing up a treaty and inviting states to sign it. The ICTY jurisdiction is aggressively interventionist because the notion of state consent was specifically rejected as a condition for making its creation possible. Discussing whether the new Tribunal would be based on consent or coercion, the Secretary General wrote, "The treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective." (See paragraph 19 of the Report which can be viewed here.)