The Security Council (SC) created the International Criminal Tribunals in Yugoslavia (ICTY) and Rwanda (ICTR) in response to the war crimes and crimes against humanity that were being committed in both regions. The Council was exercising its powers under Chapter VII of the United Nations’ Charter to take measures necessary to maintain and restore international peace. In the former Yugoslavia and Rwanda, this meant bringing perpetrators of war crimes and crimes against humanity to justice in the tribunals set up in order to allow the ruined societies to heal and reform. This essay argues that this unprecedented method of dealing with a threat to international peace was legal because the UN Charter did not exclude it through more restrictive boundaries for the SC’s exercise of discretion.

The creation of the ad hoc tribunals was within the Security Council’s power because it is justified in taking measures to combat threats to international peace which are not explicit in the UN Charter. Article 41[1] of the UN Charter gives the Security Council discretion to take ‘measures not involving the use of force’, to preserve international peace—and tribunals created to allow justice to be meted out to perpetrators of crimes are non-violent. While Article 41 gives examples of measures that the SC can take, it uses permissive language when describing them, stating that ‘these may include’ the severance of diplomatic relations, rather than restrictive language.

Admittedly, drafters of the UN Charter may not have envisioned that Chapter VII would be used to create ad hoc tribunals. Given the detail put into the examples in Article 41, the SC was probably meant to utilise one of them—or similar measures. However the heart of article 41 is its negative definition[2], and the creation of a tribunal does not fall foul of it. Therefore, while creation of the ad hoc tribunals may not have been intended, it is within the power of the SC to do so because of the way its powers were drafted.

Furthermore, the SC was justified in its specific choice to create a judicial body although it exercises no judicial function itself. Critics argued that the SC could not possibly delegate power to a subsidiary organ that it did not have,[3] and that this made its creation of the ad hoc tribunals invalid. However, as the bench in Prosecutor v Tadic[4] found, the SC was not delegating a power it had—it was exercising its power to preserve international peace by creating a judicial body. The General Assembly’s (GA) creation of the UN Emergency Force in the Middle East in 1956 shows that UN organs can create subsidiary bodies with powers that its principal does not have,[5] and the valid creation of the UN Administrative Tribunal[6] clarifies specifically that a judicial subsidiary body can be created by a principal organ without that function.

The validity of the SC’s creation of the ad hoc tribunals can appear shaky when held against two of the standards that a measure must meet—it must be able to restore peace and be validly established by law[7].

The Security Council provided what is essentially very broad reasoning for how ad hoc tribunals would establish peace in the former Yugoslavia and Rwanda—that perpetrators would be brought to justice, that this would necessarily deter further atrocities and help people move past the ones that had been committed, and that this would create stability and peace while the regions tried to rebuild themselves. While this is not illogical, it does depend on the use of loose logical links and the assumption that each stage would necessarily occur—which is debatable. The problem with drawing links with such a broad brush is that it becomes difficult to think of what measure or reasoning cannot be rationalized—and if almost any sort of measure that is non-violent can be justified, then the requirement that it must preserve international peace will not be an effective restriction on the SC’s choices.

Unfortunately, the Appeal Chamber’s judgment in Tadic does nothing to strengthen the SC’s position—it merely rejected ex post facto criticism of the tribunal’s effectiveness[8] in preserving peace, without stating any alternative standard that a decision must meet. However, while this is a concern—that there does not seem to be a particularly stringent threshold for what makes a measure effective—it is still consistent with the drafting of the SC’s powers, which are conferred in Article 39 to give the council broad discretion.[9] Therefore, while the benefit of the SC’s wide discretion in combating threats to international peace might be debatable, its choice to create an international tribunal is not outside the confines of that discretion since the council provided a logical basis for its choice.

The validity of the SC’s decision has also been challenged on the grounds that it was not ‘established by law’, and the judgment in Tadic has been criticized for ironically strengthening this challenge. The bench bolstered its various arguments that the ICTY was established by law by pointing out that the GA had repeatedly approved of its formation,[10] and one writer argued that this in fact made the SC’s actions seem less valid—if it had been justified in creating the ICTY, there would be no need for the General Assembly’s ratification.[11] However, this is unfair as it is arguable that the SC was meant to confine itself to the use of measures explicitly stated in Chapter VII to deal with threats to international peace. Given the novelty of the SC’s actions and the understandable skepticism that it may not have been justified in creating the ICTY, it is easy to see why other bodies of the UN might rally to show its support for the SC’s decision. It is unfair use this as proof that the ICTY’s exists on shaky ground and needs bolstering.

The broad discretion given to the SC in exercising its powers under Chapter VII thus covers the creation of the ad hoc tribunals—the Chapter could have been crafted more narrowly to exclude measures that were different from the examples given, but it was not. In light of this, and the precedents that justify the creation of a judicial body by one of the UN’s principal organs, the creation of the ad hoc tribunals was within the SC’s powers.