Manipulating International Criminal Procedure: The Decision of the ICTY Office of the Independent Prosecutor Not to Investigate NATO Bombing in the Former Yugoslavia

Abstract

In her address to the United Nations Security Council on June 2, 2000, Carla Del Ponte, Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY), stated that she had decided not to open a criminal investigation into any aspect of NATO's 1999 air campaign against the Federal Republic of Yugoslavia (FRY). A primary purpose of the investigation would have been to examine civilian casualties resulting from the campaign as a possible violation of international law. Ms. Del Ponte laid out the reasoning for the decision not to investigate in the Prosecutor's Report on the NATO Bombing Campaign. Her controversial decision not to prosecute is tantamount to a judgment of not guilty. Indeed, a decision not to prosecute here can be as important, or more important, than a judicial decision in terms of licensing a certain degree of civilian death or "collateral damage” and the tactical methodology permitting those casualties under international law.

This Comment's first argument will analyze the Prosecutor's legal reasoning under international law and probe the Office of the Independent Prosecutor's (OIP) choice and evaluation of the evidence under the criteria of the ICTY Statute. It will criticize Ms. Del Ponte's decision in light of the numerous reports and accusations submitted to the OIP by governmental and nongovernmental organizations pursuant to the ICTY Statute's directive. Through an evaluation of these factors, the analysis will attempt to discern the standard for war crimes that the OIP applied to NATO and thereby answer the question: Did the Prosecutor give NATO a free pass under the international law governing armed conflict?

Keywords: International law, International Criminal Tribunal for the Former Yugoslavia, ICTY, collateral damage, NATO bombing campaign – Federal Republic of Yugoslavia, war crimes, international armed conflict, Carla Del Ponte