The common practice to create an international tribunal before the establishment of the ICTY was by international agreements. Negotiating states need to agree to conclude the treaty and approve it by means of ratification or accession. However, the ICTY set precedent whereas the Security Council was allowed to establish such tribunal.
At time, the Secretary General stated that a treaty-based tribunal has its own disadvantages: lengthy as it needs negotiation, the need of a number of acceptance by ratifications and countries which support might be needed for the live of such tribunal might be opting out and might even against the tribunal.
The Secretary General suggested, for expeditious reason, the Security Council to invoke chapter VII of the UN Charter to create such tribunal. He noted “this approach would have the advantage of being expeditious and of being immediately effective as all States would be under a binding decision taken as an enforcement measure under Chapter VII”.
The Security Council then unanimously adopted Resolution 827, establishing ICTY. Two countries, China and Brazil, abstained and refused to allow invocation of Chapter VII as the general basis for the creation of international criminal tribunals. The Government of Federal Republic of Yugoslavia challenged this decision and stated that the power to create an international tribunal was beyond the power of the Security Council as mandated by the UN Charter. The Government of Yugoslavia went on further, arguing that article 29 of the UN Charter did not support the establishment of an independent body as a subsidiary organ of the UN Security Council.
This situation repeated in 1994 when the Security Council adopted Resolution 995 establishing similar tribunal for Rwanda. Here, China and Brazil re-emphasized the importance to create tribunals by treaty but did not vote against the resolution.
The legality of the legal basis of the establishment of ICTR and ICTY was challenged by defendants before both tribunals. However, the Appeal Chamber of ICTY in Tadic case made the following decisions:
- Under chapter VII of the UN Charter, the Security Council has an enormous power to determine a situation to be a threat to international peace and security. And in this case, an armed conflict, even it does not have a non-international character still would be considered as ‘threat to peace’.
- Once the Council has determined so, it has discretion to apply measures under article 41 and 42 of the UN Charter.
- Article 41 of the UN Charter is not exhaustive in nature and the creation of an international tribunal by the Council would fall under the scope of article 41.
- The decision to establish ICTY was not beyond the power of the UN Security Council.
- Recognizing the significant discretion that the Council has to choose the measures it whishes to use to restore peace, ICTY was lawfully established by the decision of the Council.
- The Chamber rejected the challenge that the primacy granted to the ICTY was a violation to the sovereignty of states, noting that enforcement measures under Chapter VII are an exception to the principle of non-intervention in article 2(7) of the Charter.
Following the ICTY Appeal Chamber’s decision, similar challenges that question the legality of the ICTY has been consistently rejected, including challenges made before ICTR. See Kanyabashi case where the Trial Chamber re-affirmed the power of the Security Council under chapter VII: “the question of, whether or not the conflict posed a threat to international peace and security is a matter to be decided exclusively by the Security Council”.
More interestingly, the Council’s role in international criminal justice was further confirmed by linking the Council’s role with the work of the newly established body: the International Criminal Court. Under article 13.b the Council was given the power to refer a situation to the ICC and under article 16 the Council is allowed to delay the process of investigation and prosecution of the ICC.