Truth, history, and the International Criminal Tribunal for Yugoslavia

Like all organizations, the International Criminal Tribunal for Yugoslavia (ICTY) has a history and a culture. Its close ties to the United Nations (UN) and members of the North Atlantic Treaty Organization (NATO) suggest that it is something more than a criminal court, and its broad interpretation of customary law, in particular its formulation of the concept of joint criminal enterprise (JCE), appear to mark it as a court of transitional justice. The proliferation of similar courts over the past two decades, including the International Criminal Tribunal for Rwanda (ICTR), which shares an Appeals Chamber with the ICTY, and the International Criminal Court (ICC), which differs from the ICTY in having been established by treaty, appear to make it, if not a model for, at least a harbinger of future developments in international law. It has also sought to influence the politics of the successor states to Yugoslavia and the opinions of those who have commented on the Yugoslav wars. Nonetheless, most people, including a majority of scholars, would be hard-pressed to define the concept of JCE or describe the culture of the ICTY. This essay argues that the ICTY has slipped the moorings of its Statute and embarked on a course that has led it to create new legal doctrines that undermine international law and that scholars who cite the materials assembled by its prosecutors and consult the decisions handed down by its judges should do so with caution, bearing in mind that the goals and the functions of a transitional court are radically different from those of a criminal court