This article thus takes a close look at one of the most important of the elements of the new international legal order which human rights activists promote, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It finds that the ICTY delivers a "justice" that is biased, with prosecutorial decisions based on the national characteristics of the accused, rather than on what available evidence indicates that he has done. Evidence of this bias is found in the failure to prosecute NATO personnel for acts that are comparable to those of Yugoslavs already indicted, and of failure to prosecute NATO personnel for prima facie war crimes. This pattern of politically driven prosecution is accompanied by the use of the Tribunal as a political tool for those western countries that support it, and especially the United States: put bluntly, the Tribunal prosecutes only those whom the Americans want prosecuted, and the United States government threatens prosecution by the supposedly independent ICTY in order to obtain compliance from political actors in the Balkans. Further, judicial decisions by the ICTY render it extremely difficult if not impossible for an accused to obtain a fair trial, while the Tribunal has also shown a lack of interest in the investigation of potential prosecutorial misconduct.
Robert M. Hayden,
Biased Justice: Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia ,
47 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol47/iss4/7