Recommendations (1-4) 16
B. Impose Economic Sanctions 17
1. Enact UN Sanctions Against States 17
Recommendations (5) 18
2. Enact UN Sanctions Against Individuals 18
Recommendations (6) 18
3. Implement Unilateral United States Sanctions and Inducements 19
a. Impose Unilateral Sanctions 19
Recommendations (7) 20
b. Unilateral Seizure of Domestic Assets 19
Recommendations (8-10) 20
C. Apprehend Indicted Criminals 20
1. Legal Authority for Military Options 20
2. Political Risks of Successful Apprehension 21
3. Operational Risks 21
Recommendations (11-14) 22
D. Improve the Effectiveness of the International Tribunal 22
1. Prosecute Principal Figures 23
Recommendations (15-17) 23
2. Establish a Meaningful Witness Protection Program 24
Recommendations (18-22) 24
3. Utilize the Authority of the International Tribunal to Mandate the
Apprehension of Indicted War Criminals 25
Recommendations (23-27) 26
4. Provide Adequate Funding for the Work of the International Tribunal 27
Recommendations (28-31) 27
E. Establish Non-Prosecutorial Mechanisms 28
1. Establish a Truth Commission/Vetting Mechanism 28
Recommendations (32-37) 29
2. Create a Victim Compensation Program 30
Recommendations (38-41) 31
F. Improve the Quality and Effectiveness of Domestic Prosecutions 31
1. Revamp the Rules of the Road Agreement 31
Recommendations (42-46) 32
2. Increase the Domestic Capacity for the Prosecution of War Criminals 33
Recommendations (47-50) 34
Conclusion 35
Appendix: Composite List of Recommendations 36
On July 10, 1997, NATO forces conducted their first aggressive apprehension of two indicted war criminals in Bosnia. This followed 18 months of inaction by the United States and its allies during which time sixty-seven indicted war criminals freely roamed within Bosnia, Croatia and Serbia, including the notorious Radovan Karadzic and Ratko Mladic. The time has come to arrest and apprehend these individuals for their grave crimes against humanity in order that peace and reconciliation may prevail over tyranny and injustice in the former Yugoslavia.
This report reviews:
the moral and practical imperatives for apprehending and prosecuting war criminals
the international community's involvement in the war crimes issue in the former Yugoslavia
the record of implementation of obligations to apprehend indicted war criminals
the consequences of the failure to date to arrest and prosecute more than a handful of indicted individuals
The report offers a range of political, diplomatic, economic, military and legal options containing fifty specific recommendations on how the international community might improve the likelihood of arresting and successfully prosecuting indicted war criminals. The main thrust of these recommendations is:
1. That a broad range of political, diplomatic, and economic sanctions should be imposed on Croatia and Serbia until they fulfill their obligations to arrest indicted war criminals resident on their territory or on territories under their de facto control.
2. That NATO continue its new policy of aggressive apprehension of war criminals, and that US forces in particular seek out and apprehend Radovan Karadzic and Ratko Mladic and those responsible for operating concentration camps.
3. That the operation of the International Criminal Tribunal for the Former Yugoslavia should be significantly modified to improve its effectiveness and efficiency in four areas:
prosecution strategy
witness protection program
authority of the International Tribunal to mandate the arrest of war criminals
funding
4. That other non-prosecutorial mechanisms ought to be established to augment the work of the International Tribunal. These include the establishment of truth commissions, mechanisms for vetting police forces of war criminals, and a victim compensation program.
5. That the quality and effectiveness of domestic prosecution procedures for war criminals be improved.
Preface
On November 20-21, 1996, the University of Dayton Center for International Programs sponsored an international symposium which reviewed the current state of implementation and the future of the Dayton Peace Accords. Of the many recommendations offered by the more than forty diplomats, political and business leaders, journalists, and academics who participated in the symposium, there was only one that was agreed upon unanimously--that bringing war criminals in the former Yugoslavia to justice was the only means of achieving a foundation for lasting peace in Bosnia. Despite this consensus, it seemed clear that there was to be no immediate change in the United States' and its allies' policy in Bosnia not to arrest individuals indicted for war crimes.
The Center for International Programs therefore considered it useful to undertake a study of the war crimes issue to determine what further actions could bring indicted war criminals to justice. Working in collaboration with the University of Dayton School of Law, the Balkan Institute, and the Public International Law and Policy Group, the Center sponsored a workshop entitled, "The Dayton Accords and Beyond: Apprehending War Criminals in the Former Yugoslavia."(1)
The proceedings of the workshop held at the University of Dayton on March 19-21, 1997 form the basis of this report. It is our hope that this report will help to advance the arrest and successful prosecution of war criminals in the former Yugoslavia in order that peace and reconciliation may prevail over tyranny and injustice.(2)
R. Bruce Hitchner, Ph.D.
Paul R. Williams, Esq.
Marshall Freeman Harris
Center for International Public International Law
The Balkan Institute
Programs, & Policy Group, and
The University of Dayton
The Carnegie Endowment for
nternational Peace
List of Participants
The Dayton Accords and Beyond: Apprehending War Criminals in the Former
Yugoslavia,
A Workshop Held at the University of Dayton
March 19-21, 1997.(3)
Mark Ellis, Esq.
Executive Director
The American Bar Association
Central and East European Law Initiative
Mark Ensalaco, Ph.D.
Executive Director, FIDEH-USA
and Associate Professor
Department of Political Science
The University of Dayton
Marshall Freeman Harris
Executive Director
The Balkan Institute
R. Bruce Hitchner, Ph.D.
Professor, Department of History
Director, Center for International Programs
The University of Dayton
Quintin Hoare
Editor
The Bosnia Report
James Hooper
Vice President
The Balkan Institute
Michael Scharf, Esq.
Associate Professor,
The New England School of Law
and Managing Director,
The Public International Law and Policy Group
Alan Sultan, Esq.
Professor, School of Law
The University of Dayton
Paul R. Williams, Esq.
Senior Associate,
The Carnegie Endowment for International Peace
and Executive Director,
The Public International Law and Policy Group
Introduction
We have an obligation to carry forward the lessons of Nuremberg. Those accused of war crimes against humanity and genocide must be brought to justice. There must be peace for justice to prevail, but there must be justice when peace prevails.
-- President William Jefferson Clinton
Almost two years after the end of the war in Bosnia, sixty-seven war criminals publicly indicted by the International Criminal Tribunal for the Former Yugoslavia remain at large in Bosnia and Herzegovina, Croatia, and Serbia. The failure of the Western allies to carry out the mandate of the Accords to apprehend these individuals has unwittingly helped consolidate Bosnia's partition. It has also exacerbated political and economic tensions in the country, poisoned its social and cultural institutions and entrenched its ultranationalist and ethnic-supremacist forces. Croatia's disinclination to fulfill its responsibilities under the Dayton Accords and to cooperate fully with the International Tribunal has seriously damaged its efforts to become a full-fledged partner in the European Community and undermined its moral integrity. Furthermore, the complete abdication of Serbia on the issue of war criminals has rendered it a virtual pariah among nation-states.
The logical and necessary first steps to halt or reverse this dangerous process is for NATO troops to aggressively apprehend the sixty-seven publicly indicted individuals who are not only responsible for brutal and destructive acts during the war, but who also in many cases continue to conduct their war by non-military means and to impose political and economic sanctions on state and sub-state entities which refuse to assist NATO forces in the apprehension of the indicted criminals or to apprehend them themselves.
This report reviews the obligations of the international community to apprehend and prosecute indicted war criminals in the former Yugoslavia, and presents a range of political, diplomatic, economic, military and legal options, including fifty specific recommendations, that would enhance the prospects of bringing Radovan Karadzic, Ratko Mladic and other indicted war criminals to justice.
I. The Moral and Practical Imperatives for Apprehending and Prosecuting
War Criminals
The purposes of the Tribunal . . . are threefold: to do justice, to deter further crimes and to contribute to the restoration and maintenance of peace.
-- Antonio Cassese, President of the International Criminal Tribunal for the Former Yugoslavia.(4)
A. Justice
The apprehension and prosecution of war criminals in the former Yugoslavia will further justice by assigning specific guilt and thereby avoiding collective guilt, by acknowledging the victims, and by establishing an accurate historical record of the nature and responsibility for the crimes committed.
By exposing the individuals responsible for the atrocities in the former Yugoslavia, the apprehension and prosecution of war criminals avoids an assignation of guilt to an entire people, be they Serbs, Croats, or Bosniacs. Just as a primary purpose of the Nuremberg trials after World War II was to remove the stigma of Nazism from the entire German people by isolating those individuals that were directly responsible for war crimes, a primary purpose of the apprehension and prosecution of war criminals in the former Yugoslavia is to counter the prevailing perception that ethnic groups and not individuals are responsible for the commission of atrocities. The avoidance of collective guilt is particularly important in the case of the former Yugoslavia as the failure to do so after the atrocities of World War II contributed to the more recent desire of individuals to take indiscriminate retribution against whole ethnic groups.
The process for prosecution of war criminals further offers an opportunity for the victims of war crimes to state their injuries publicly. According to David Scheffer, the United States Ambassador at Large for War Crimes Matters, the opportunity of victims to testify against their tormentors can "provide victims with a sense of justice and catharsis -- a sense that their grievances have been addressed and can more easily be put to rest, rather than smoldering in anticipation of the next round of conflict." Moreover, by acknowledging the suffering of victims and their families, helping to resolve uncertain cases, and allowing victims to tell their story, the prosecution of war criminals can serve as a sort of "historical group therapy session" for an entire country, facilitating national reconciliation and individual rehabilitation and imparting to the citizenry a sense of dignity and empowerment that could help them move beyond the pain of the past.
War crimes prosecutions also establish a historic record of international crimes, thereby "preventing history from being lost or re-written, and allowing a society to learn from its past in order to prevent a repetition of such violence in the future."(5)
Supreme Court Justice Robert Jackson, the U.S. Chief Prosecutor at Nuremberg, observed that one of the most important legacies of the Nuremberg trials was that they documented the Nazi atrocities "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people."(6)
The problems of accurately assessing blame for war crimes in the former Yugoslavia are especially acute. In Justice Richard Goldstone's words, "It doesn't take hours after human rights violations for the denials to begin .... Justice plays a vital role in stopping that fabrication, in stopping that cover-up, which is inevitable."(7)
The historical record created by criminal prosecutions may further promote justice by imposing moral condemnation and laying the groundwork for other sanctions and victim compensation.
B. Deterrence
History records that the international amnesty given to the Turkish officials responsible for the massacre of over one million Armenians during World War I encouraged Adolph Hitler some twenty years later to conclude that Germany could pursue his genocidal policies with impunity. In a speech to his Commanding Generals, Hitler dismissed concerns about accountability for acts of aggression and genocide by stating, "Who after all is today speaking about the destruction of the Armenians?"(8)
Similarly, the failure of the international community to prosecute Pol Pot, Idi Amin, Sadam Hussein, and Mohammed Aideed, among others, likely encouraged the Serbs to launch their campaign of ethnic cleansing against the Muslims in Bosnia with the expectation that they would not be held accountable for their international crimes.
Given the scale of the atrocities in the former Yugoslavia, if the international community is perceived to have granted a de facto amnesty for the major perpetrators, it will send a signal to other rogue regimes throughout the world that they have nothing to lose by engaging in such criminal acts.
C. Peace and Stability
1. Within Bosnia
The apprehension and prosecution of war criminals will remove a key source of violence and institutional corruption in Bosnia, and in so doing will foster peace and the establishment of democracy.
According to International Tribunal President Antonio Cassese, the apprehension and prosecution of war criminals "is essential to the restoration of peaceful and normal relations especially for people who have had to live under a reign of terror [because] [i]t breaks the cycle of violence, hatred, and extrajudicial retribution."(9)
As such, the identification, apprehension, prosecution, and punishment of war criminals is a precondition to the successful application of Western policies to end the cycle of violence in Bosnia. The application of war crimes procedures to the Dayton signatories would acknowledge the parties' willingness to accept Western legal norms as a legal foundation for the genuine ending of conflict and would lay to rest the territorial ambitions that caused the fighting.
Apprehension and prosecution of war criminals further promotes stability in the former Yugoslavia by dismantling the institutions and discrediting the leaders who have enabled humanitarian crimes to occur. When a government enacts policies of ethnic cleansing or systematically denies human rights, it is often done through legal structures. South Africa's apartheid government, for instance, used its constitution to oppress, and special government forces to torture and murder, members of black opposition groups. In order to remove the stigma of past wrongs from new governmental institutions, the South African Truth and Reconciliation Commission was given the task of documenting the full extent of government involvement in racial killings. In Yugoslavia too, government leaders and government forces were a driving force behind much of the ethnic killing. It is thus imperative that the war's leaders be removed from power so that people may have faith in the common institutions created by the Dayton Accords.
Local stability will be further enhanced where free and fair elections are held. In the long term, a renewed effort to apprehend and prosecute war criminals will help to create the proper atmosphere for the municipal elections and any subsequent elections as it will bring justice to citizens who were the victims of the most significant atrocities committed in Europe since World War II. Moreover, a renewed effort will assist with the reconciliation of the various divergent ethnic groups in the country by removing those with a vested interest in seeing the Dayton Accords fail.
2. Within the Balkan Region
The apprehension and prosecution of war criminals will foster stability within the Balkan region by advancing the assimilation of the Bosniac-Croat Federation and the Bosnia Serb entity into a unitary state and the integration of Bosnia within a stable and democratic post-cold war Europe.
Unfortunately, the current status of the war crimes effort as a component of reintegration provides cause for some of the three parties to seek recourse to the battlefield to redress their grievances. The possible resumption of the fighting raises the specter of the spread of conflict to other states in the region that were not directly involved in the war, particularly Albania and Macedonia.
II. International Involvement in the War Crimes Aspects of the Yugoslav Conflict
A. The United Nations Creation of the International Criminal Tribunal for the Former Yugoslavia
Determining that the situation in the former Yugoslavia constituted a threat to international peace and security, on May 25, 1993 the United Nations Security Council created the International Criminal Tribunal for the Former Yugoslavia. The purpose of the International Tribunal was to contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. Its specific mission was to assist the Security Council in bringing to an end the commission of war crimes in that country by ensuring that those responsible for the atrocities were brought to justice.(10)
The International Tribunal was charged with the jurisdiction and competence to prosecute any individuals responsible for serious violations of international humanitarian law in the former Yugoslavia from January of 1991.(11)
1. Obligation of States to Comply with the Orders of the
International Tribunal
Whereas judicial cooperation and mutual assistance between states with respect to national criminal investigations or prosecutions is usually governed by bilateral or multilateral agreements, the obligation of states to provide the necessary cooperation and assistance to the International Tribunal stems directly from its establishment by a Security Council decision under Chapter VII which creates binding obligations for all states by virtue of Articles 2 (6) and 25 of the United Nations Charter.(12)
The Secretary-General's report describes the nature of state obligations with respect to the International Tribunal as follows: "[T]he establishment of the International Tribunal on the basis of a Chapter VII decision creates a binding obligation on all states to take whatever steps are required to implement the decision."(13)
Specifically, Security Council Resolution 827 requires all states to "cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal."
Although some states and sub-state entities, such as Serbia/Montenegro and the Bosnian Serb entity, assert they lack the necessary domestic legislation to comply with the indictments and orders issued by the International Tribunal, Resolution 827 explicitly requires all states to take any measures necessary under their domestic law to implement the provisions of the Resolution. Under international law a state has a duty to comply with its international legal obligations, including binding Chapter VII Security Council Resolutions, which take precedence over all domestic legal obligations.(14)
Therefore, a state may not assert that it is unable to fulfill its international legal obligations on the basis that it is prohibited from doing so by domestic legislation, or that it lacks the necessary domestic authority.(15)
The obligation of all states to cooperate with the International Tribunal is further set forth in Article 29 of the Tribunal's Statute which provides for (1) the general obligation to provide any cooperation that may be required to facilitate the investigation or prosecution of alleged perpetrators by the International Tribunal, and (2) the obligation to comply without undue delay with a specific request or order issued by a Trial Chamber, including arrest warrants. The Tribunal may notify the Security Council of the failure of a state to provide the necessary cooperation or assistance in response to a specific request or order.
B. The Dayton Accords
In November of 1995, the parties to the Yugoslav conflict and representatives of the Contact Group gathered in Dayton, Ohio to negotiate a series of accords designed to bring about the peaceful reintegration of Bosnia. Although the various parties to the negotiations held differing views as to the role of justice in promoting peace and the extent to which the Dayton Accords should create obligations to bring war criminals to justice, the parties agreed that the Accords must to some degree incorporate the obligations set forth in Resolution 827.
As such, the Dayton Accords provided that the parties were obligated "to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law,"(16)
and that "no person who is serving a sentence imposed by the [International Tribunal], and no person who is under indictment by the [International Tribunal] . . . may stand as a candidate or hold any appointive, elective, or other public office in the territory of Bosnia and Herzegovina."(17)
In addition, the Bosnian delegation extracted an implicit promise from the NATO representatives that IFOR would neither interact with indicted war criminals nor tolerate their presence in the area of operation. The parties took this to mean that NATO forces would actively participate in the apprehension of indicted war criminals
III. The Current State of Implementation of Obligations to Apprehend Indicted
War Criminals
Although the two provisions included in the Dayton Accords represent what might be considered minimum commitments necessary to fulfill the role of justice in promoting peace, even they have not yet been fully implemented. Serbia, Croatia, and the Bosnian-Serb entity have played, a part, to different degrees, in obstructing the judicial process, thereby jeopardizing the peace.
The Bosniac leaders of Bosnia and Herzegovina have however, cooperated fully with the U.N. International Tribunal on a variety of issues. By contrast, the United States and its allies have failed to exert sufficient pressure to compel the cooperation of Croatia, Serbia, the Bosnian Serb entity, and the de facto authorities in Bosnian Croat regions of Bosnia. In recent months, Western governments have attempted to deflect criticism of their policies by claiming that the Balkan parties have failed to act. The Dayton Accords oblige the signatory-parties to cooperate with the International Tribunal, making such claims disingenuous. In the four above-mentioned entities and states, the failure of Western governments to implement key reintegrative provisions of the Accords has further entrenched and empowered leaders who orchestrated the war and who are widely believed to have committed indictable offenses.
A. Serbia/Montenegro
In Serbia/Montenegro there has not been any significant cooperation with the International Tribunal. Specifically, none of the indicted individuals residing within Serbian/Montenegrin territory have been extradited to the International Tribunal. Serbia/Montenegro explicitly refuses to extradite these indicted war criminals on the grounds that it claims not to possess the necessary domestic legislation for extradition to the International Tribunal. As noted above, however, the lack of domestic authority is not a valid excuse for the breach of international legal obligations to arrest and extradite indicted war criminals to the International Tribunal.
Belgrade has not only provided less support to the International Tribunal than other nations, but has also actively obstructed its work. It has declined most of the International Tribunal's requests for cooperation; with others, it has agreed to cooperate, but only in a minimal form and only after considerable delays. Although Belgrade is a party to the Dayton Accords -- indeed, Serbian President Slobodan Milosevic committed verbally at Dayton to remove Ratko Mladic and Radovan Karadzic from political life -- it has not surrendered war criminals under its de facto control to the International Tribunal's custody. Belgrade has also failed to prevent indicted war criminals from traveling to and from Serbia. In 1996, it allowed Serb army officials to attend and participate in a public funeral for Djordje Djukjic, a Serbian military officer who was in charge of the Bosnian Serb forces' logistics and who had been released from the U.N. International Tribunal's custody on
medical grounds. The Bosnian Serb war effort and other individual Serbian indictees were venerated at the ceremony.
B. The Republic of Croatia
Croatia also refuses to cooperate with the International Tribunal and, aside from General Tihomir Blaskic's voluntary appearance at The Hague and the recent extradition of Saso Aleksouski, none of the indictees residing in Croatia have been extradited.(18)
Although Croatia possesses the necessary domestic legislation for extradition, it claims to be unable to locate any indictees residing on its territory, not withstanding the fact that they are all represented by the same Zagreb lawyer, Zvonimir Hodak, and at least two of them have been located by local independent newspapers.
While the United States has begun to place increasing pressure on the Croatian government to comply with the International Tribunal, most recently by postponing loans to Zagreb from international lending institutions, the recent re-election of President Franjo Tudjman by a comfortable margin has emboldened the Croatian government to stonewall on the war crimes issue.
C. Bosnia and Herzegovina
The central government has complied with all the requests made by the International Tribunal. However, its effectiveness is undermined by power-sharing by the country's two constituent entities and Dayton-mandated constitutional provisions for an entity's veto of central policies. These endemic weaknesses, together with the West's unwillingness to challenge the ongoing territorial control of parts of Bosnia by ethnic Serb and Croat separatists, have led the International Tribunal to attempt to cooperate with the country's two constituent entities (see below) and the de facto leadership of Croatian regions and thus to treat Bosnia as three separate countries.
1. The Bosnian Serb Entity
Since signing the Dayton Accords, not one of the forty-eight publicly indicted war criminals residing on the territory of the Bosnian Serb entity has been turned over to the International Tribunal. In fact, Pale has openly declared that it has no intention of cooperating with the International Tribunal, yet it is subject to no international sanction. Bosnian Serb President Biljana Plavsic has frequently pointed out that the Bosnian Serb Constitution bans extradition and that her government will not turn over Karadzic, Mladic or any other indictees to the International Tribunal.(19)
Specifically, Plavsic informed UN Secretary-General Kofi Annan, via a "diplomatic letter," that the International Tribunal's indictments are no longer considered valid since the fighting has ceased and there have been no recent reports of war crimes being committed in the Bosnian Serb entity. In the letter, she declared, "any such trials now fall outside the scope of the International Tribunal's constitutional framework" because the International Tribunal was established when war crimes were a threat to peace. Plavsic argued that without further reports of war crimes committed in Bosnian Serb entity the International Tribunal's mandate has "disappeared." This position, moreover, has hardened since the recent SFOR operation in Prejidor.
As to removing war criminals from power, it took significant pressure from the international community to persuade the Bosnian Serb authorities to remove Karadzic from official public office. However, a number of wanted war criminals continue to serve in local police forces and hold other influential public positions in Prejidor, Omarska, and Bosanski Samac.(20)
Similarly, although both Karadzic and Mladic have been formally removed from office, they remain within the territory of the Bosnian Serb entity and continue to wield significant political and military authority.(21)
Indeed Karadzic is generally acknowledged to be the dominant political figure in the Bosnian Serb entity.(22)
2. Federation of Bosnia and Herzegovina
With respect to the Bosnian Federation, other than the recent reluctance of the Minister of Defense to cooperate with the International Tribunal on the Blaskic case, the Federation has complied with the indictments issued by the International Tribunal and, as noted above, has extradited to The Hague Zejnil Delalic, Hazim Delic, Zdravko Mucic and Esad Landzo.
By contrast with Federation areas under the control of Bosniac officials, conditions in Bosnian Croat-controlled parts of Bosnia are virtually identical to those in the Bosnian Serb entity: indicted war criminals live and work in public positions with impunity with the full knowledge and complicity of Bosnian Croat leaders. Bosnian Croat leaders of the Croatian Democratic Union (HVO), Tudjman's party, claim they support the work of the International Tribunal, but assert disingenuously that they lack the laws and institutions to cooperate because there is no parliament for their de facto entity in Bosnia.
D. International Community
1. Financial and Other Support for the International Tribunal
Since its inception, the U.N. International Tribunal has suffered from a chronic lack of political, financial, and evidentiary support. Although the United States has provided more support than other nations, the paucity of its voluntary and other in-kind contributions -- totaling only $18 million in the first three years of operations -- has prevented the International Tribunal from carrying out more than a fraction of its functions and responsibilities. This is reflected, generally, in the dearth of indictments issued to date and, more specifically, in the small scale of the court's investigatory operations.
Other major powers have not even approached the United States' low level of support for the International Tribunal. Indeed, Micronesia has provided more voluntary assistance than either Britain or France. For four years, Western governments have paid rhetorical tribute to the International Tribunal's importance. At the same time, they have not only failed to provide genuine support, but have also enacted broader, contradictory policies that are undermining the International Tribunal's work and condemning it to irrelevance.
2. NATO Military Forces
In the face of breaches of the Dayton Accords provision requiring cooperation with the International Tribunal by most of the parties, NATO forces have, until the SFOR operation in Prejidor, steadfastly refused to exercise their authority to apprehend those indicted for war crimes. Until recently NATO's official policy has only permitted NATO forces to attempt to apprehend indicted criminals they should happen to encounter, when doing so posed no risks to those forces.
In reality NATO's policy has been for its forces to avoid any interaction with indictees at all costs and to circumvent areas where indictees are believed to operate. In the event that contact was made, NATO forces were to remove themselves quickly from the area and deny their recognition of the indictees.(23) The Prejidor operation appears to represent a change in NATO policy. However, the procedure of avoiding contact with war criminals is still evidently in place.
IV. The Specific Effects of the Lack of Implementation
The decision by NATO forces not to implement Dayton's provisions on apprehending war criminals has impeded the enactment of other requirements of the agreement and thus reduced the chances for a peaceful reunification of Bosnia.
A. Barrier to the Return of Refugees and Freedom of Movement
Only one in ten of the country's 2.2 million displaced persons has returned, and an even smaller fraction of this ten percent has actually returned home. Instead, the displaced are resettling -- or being resettled -- in areas in which, by ethnicity or religion, they are part of the majority. The failure to apprehend indicted war criminals has exacerbated the refugee situation as many refugees seeking to return to their place of residence are inhibited from doing so by fear of attack or intimidation in communities where war criminals hold power or by police forces that include former war criminals.
B. Unfree and Unfair Elections
Regrettably, the lack of action on the war criminals issue allowed and even encouraged indicted war criminals, to participate openly in last year's municipal elections in Bosnia. Free and fair elections, which are necessary for Bosnia's recovery and progress as a nation, are not possible as long as war criminals continue to flaunt justice and execute their policies of ethnic supremacy and separatism.
C. Impediment to Reconstruction
The failure to apprehend war criminals has seriously impeded the efforts to rebuild the Bosnian economy. Only 2 percent of international aid for reconstruction in 1996 went to the Bosnian Serb entity in part because of its non-compliance with the International Tribunal. Moreover, some of this aid has been awarded to firms owned by war crimes suspects. Suspected war criminals have also restricted the ability of legitimate businesses to win reconstruction projects. As long as war criminals remain at large, the reconstruction of Bosnia will be adversely affected.
Croatia has also recently begun to feel the effects of its failure to turn over indicted war criminals on its territory. The World Bank, under pressure from the United States, Canada, Japan, and major allies in Europe, has delayed two loans. And Serbia, although no longer under UN sanction, is still shunned by the international economic community for its failure to cooperate in efforts to bring indicted war criminals to The Hague.
D. Regional Instability
Over the long term, the sense of injustice stemming from the failure to arrest war criminals has the potential to act as a destabilizing factor not only within Bosnia, as recent political unrest in the Bosnian Serb entity has shown, but also in Croatia, Serbia, and other parts of the Balkans. Until the war crimes issue is unresolved, the potential for regional instability remains significant.
E. Sanctioning of Agenda of Ethnic Purity
Even if the partition holds, and fighting does not resume in Bosnia, the precedent of seizure of territory by force has been reconfirmed as a functional model for post-Cold War state behavior. The West, under the active leadership of the United States, has rhetorically sanctioned Milosevic's Greater Serbian ends while condemning--but not redressing--his means: aggression, destruction of pluralism and democracy, genocide, and the forcible transfer of populations.
By shirking the demands for defending their values in Central Europe--and arresting war criminals is one such demand--the Western allies devalue democracy and raise questions about their fundamental commitment to collective defense and religious, ethnic, and cultural pluralism beyond their own borders.
F. Negative Precedent for the Future Implementation of the Rules Governing
Armed Conflict
The establishment of the International Criminal Tribunal for the Former Yugoslavia in 1993 was intended to bring a halt to what the international community rightly believed were "grave breaches" of the Geneva Conventions of 1949 and Protocol I added in 1977. If the mandate of the International Tribunal is not executed, it will set a disturbing precedent; namely, that the rules governing armed conflict between states can be disregarded with impunity. As Secretary of State Madeleine Albright recently stated, "t[he] tribunal represents a chance not only for Bosnia...but for the world... We can presume to forget what only God and the victims have standing to forgive, or we can heed the most searing lesson of this century, which is that evil--when unopposed--will spawn more evil."(24)
V. Options and Recommendations for Improving the Likelihood for the Apprehension and Successful Prosecution of Indicted War Criminals
As the second anniversary of the signing of the Dayton Peace Accords approaches, it is clear that the recent American and European policy on the apprehension of indicted war criminals has been a political and moral failure. Some recent laudable steps have been taken by the United States to increase pressure on Croatia, Serbia, and the Bosnian Serb entity to hand over those indicted for war crimes and to support the recent apprehension of two indicted war criminals.
A. Impose Political and Diplomatic Sanctions
As Secretary of State Albright stated: "We cannot achieve our objectives in Bosnia by doing just enough to avoid immediate war; we must do all we can to help the people of Bosnia to achieve permanent peace." These words should be backed up by a stronger U.S. policy of intensive diplomatic pressure on Serbia and Croatia through the UN, EU, Council of Europe, NATO, and OSCE.
Recommendations
(1) The United States and its allies should consider recalling their ambassadors to Belgrade and Zagreb and formally downgrading their diplomatic relations with Serbia and Croatia until those states cooperate fully with the International Tribunal. This cooperation should include:
(a) surrender of all suspects on territory under Belgrade's and Zagreb's control;
(b) suspension of all political, military, and economic cooperation with their Bosnian client-entities and proxies for as long as those entities and proxies harbor war criminals;
(c) full political, financial, and evidentiary support for the International Tribunal and its work.
(2) The United States and its allies should suspend diplomatic contact with -- and political, military, economic, and any other support for -- the Bosnian Serb entity and entities and institutions under Bosnian Croat control until the Republic and those entities and institutions surrender all suspects on territory under their control; and provide full political, financial, and evidentiary support for the International Tribunal and its work.
(3) The United States and its allies should terminate or prevent the acquisition of Partnership for Peace status for countries that harbor war criminals and/or provide less than full support for the International Tribunal and its work.
(4) Members of the European Union should terminate or prevent Union association with countries that harbor war criminals and/or provide less than full support for the International Tribunal and its work. Specifically, the EU should investigate and demand a full accounting by Cyprus of its support for the financial and business activities of indicted war criminal Radovan Karadzic.
B. Impose Economic Options
1. Enact UN Sanctions Against States
Through the adoption of Resolutions 757, 787, and 820, the Security Council imposed sweeping trade sanctions on Serbia and the Bosnian Serb entity. The sanctions included an embargo on exports to Serbia and Bosnian Serb entity, a prohibition on imports from Serbia and the Bosnia Serb entity, the freezing of all Serb-government assets, the impounding of all Serb-owned vessels, and the prohibition of Serb participation in international sporting events.
In November 1995, the Security Council adopted Resolution 1022, conditionally lifting the trade sanctions on Serbia and the Bosnian Serb entity. In that resolution, the Security Council reiterated that compliance with the orders of the International Tribunal was integral to the obligations of Serbia and the Bosnian Serb entity under the Dayton agreement. The resolution provided that if either the Commander of IFOR or the United Nations High Representative reported that those governments had significantly failed to carry out their obligations, then the sanctions were to be automatically reimposed. Yet, no such action was taken when International Tribunal President Antonio Cassese called for the re-imposition of sanctions against Serbia for failing to execute arrest warrants.(25)
The Security Council responded with a statement that it "deplores the failure to date of the Federal Republic of Yugoslavia (Serbia and Montenegro) to execute the arrest warrants," but it neither threatened nor took any further action.(26)
It later permanently lifted the trade sanctions by adopting Resolution 1074, thereby eliminating any inducement to cooperate with the International Tribunal.
Recommendations:
(5) The United States should lead an effort in the United Nations Security Council to reimpose select sanctions against Serbia and the Bosian Serb entity which would include (on a phased-in basis):
(a) the suspension of all rail, sea, air, and postal links with Serbia/Montenegro;
(b) the suspension of the recognition of Serbian/Montenegrin passports;
(c) the suspension of high level diplomatic contacts with Serbia/Montenegro and the recall of ambassadors;
(d) an embargo on exports to Serbia/Montenegro and the Bosnia-Serb entity;
(e) a prohibition on imports from Serbia/Montenegro and the Bosnia-Serb entity;
(f) the freezing of all Serb-government assets;
(g) the impounding of all Serb-owned vessels;
(h) the prohibition of Serb participation in international sporting events.
2. Enact UN Sanctions Against Individuals
In the context of the United Nation's efforts to dislodge the military regime from Haiti in 1993, the Security Council adopted Resolution 841, which required U.N. member states to freeze the assets located within their jurisdiction of known supporters of the military regime. This was the first time the Security Council acted under Article 41 of the U.N. Charter to freeze the assets of private individuals, rather than a government. Drawing upon this precedent, the Security Council could pass a resolution requiring States to seize and freeze the assets of any person indicted by the International Tribunal. Such action would (1) further isolate persons indicted by the International Tribunal, (2) serve as an effective penalty even if such persons evade justice, and (3) induce such persons to surrender themselves to the International Tribunal since their assets would be unfrozen upon their acquittal. Since these sanctions would be targeted at specific indicted individuals, not governments, it would be much easier to gain support of the members of the Security Council for such a measure.
Recommendations:
(6) The United States should lead an effort in the United Nations Security Council to require under the Authority of Article 41 of the UN Charter that states freeze the assets of individuals indicted by the International Tribunal.
3. Implement Unilateral United States Sanctions and Inducements
a. Impose Unilateral Sanctions
When the U.N. Security Council adopts a binding sanctions resolution under Chapter VII of the U.N. Charter, the United States implements the sanctions by virtue of an Executive Order promulgated under the authority of the U.N. Participation Act, 22 U.S.C. Section 287(c). In the absence of a Security Council resolution, the President can promulgate unilateral economic sanctions exercising his authority under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. Section 1702. As a prerequisite for such action, IEEPA requires the President to make a determination that the situation constitutes an "unusual and extraordinary threat to national security." Because of the relation between the successful operation of the International Tribunal and peace and reconciliation in the Balkans, and because of the presence of a large number of U.S. troops in SFOR, this situation would qualify as a case of an "unusual and extraordinary threat to national security" as required for action under IEEPA. In addition to authorizing an embargo of imports and exports, the President can use his authority under IEEPA to seize and freeze foreign assets, as discussed below. These actions would almost certainly be supported by Congress where sentiment is growing that the Administration should condition assistance for Balkan states on cooperation with the Dayton Accords, especially on the issue of war criminals.
Recommendations:
(7) Acting under the International Emergency Economic Powers Act, President Clinton should impose an economic embargo on all United States imports to or exports from Serbia and the Bosnian Serb entity.
b. Unilateral Seizure of Domestic Assets
In 1996, the President of the United States Government, exercising his authority under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. Section 1702, promulgated executive orders to freeze the assets of persons designated (1) as having assisted terrorists or committed acts of terrorism (E.O. No. 12947, Jan. 23, 1995); and (2) as having assisted or played a significant role in international drug trafficking centered in Columbia (E.O. No. 12978, Oct. 21, 1995). IEEPA authorizes the President to freeze assets in the United States and held in U.S. banks abroad in the case of an "unusual and extraordinary threat to national security."
IEEPA has been used in the past to freeze the assets of foreign governments and their ruling elites, including the assets of the Government of Iran when Americans were taken hostage, the assets of Iraq during the Persian Gulf crisis, and the assets of Haitian leaders during the reign of the military regime. With the 1996 Executive Orders, IEEPA has now been used against individual international terrorists and drug traffickers. Based on this precedent, the President of the United States, through promulgation of an Executive Order, could freeze assets of individuals under indictment by the International Tribunal in the United States and held in U.S. banks abroad.
Recommendations:
(8) Acting under the International Emergency Economic Powers Act, President Clinton should order that the personal assets located in the United Sates of all indicted war criminals be seized.
(9) The President should immediately suspend all financing by the Export-Import Bank (Ex-Im Bank) and the Overseas Private Investment Corporation (OPIC) of U.S. Businesses working in Croatia, Serbia, and the Bosnian-Serb entity.
(10) The President should suspend all existing or planned U.S. Agency for International Development (AID) assistance in the Bosnian Serb entity.
C. Apprehend Indicted Criminals
1. Legal Authority for Military Options
United States Military forces operating in the theater of the former Yugoslavia have the technical capability to apprehend indicted war criminals. Prior to the successful Prijedor operation of July 10, 1997, NATO forces in Bosnia and Herzegovina declined to arrest suspects indicted by the International Tribunal. Official NATO policy had been to avoid searching for suspects, but to allow soldiers to arrest indicted suspects if they were encountered in the normal course of operations, and it was deemed prudent to arrest them.
Yet NATO forces never found it prudent to arrest indicted suspects, however frequently encountered. When criticized for this policy, NATO claimed that it was not SFOR's mandate to search for suspects. By basing its position on the mandate (which, in this case, was established by the North Atlantic Council), NATO sidestepped the crucial question of whether national forces in Bosnia were legally authorized and possibly obligated to arrest suspected war criminals.
Unequivocal legal authority exists for the United States military personnel to engage in operations in Bosnia to apprehend indicted war criminals. This authority may be derived from conventional international law, at least two United Nations Security Council Resolutions, and the consent of the Bosnian Government. A strong legal case can be made that United States military personnel have a legal obligation to arrest indicted war criminals. This obligation is derived from the Geneva Conventions, United Nations Security Council Resolutions, and the Genocide Convention.
2. Political Risks of Successful Apprehension
A major stumbling block to the forceful apprehension of war criminals has been the supposed political risks associated with it. The most oft-cited concern is that Serbia, Croatia, and/or their proxies in Bosnia will withdraw their support for the peace implementation process. Each of these entities' support, however, has been minimal to date. Furthermore, that support has actually decreased as the United States, first, has failed to honor its own commitments to implement key parts of the Dayton Accords and, second, has failed to exert meaningful pressure on the parties to the Accords.
The forceful apprehension of war criminals should be seen as part of a comprehensive policy to reverse this process. If combined with significant political and economic pressure on Serbia, Croatia, and their Bosnian proxies, arresting war criminals poses little risk of derailing or even stalling the peace implementation process. Indeed, it should demonstrate that the United States and its allies are, at long last, taking their commitments seriously.
A second concern is that Russia would withdraw its support for the Dayton process or would advance obstructive policies in other foreign policy spheres. Since the war began, Russia has unequivocally supported Serbia, while providing more conditional, but nevertheless strong support for Belgrade's Bosnian Serb proxies. In keeping with this policy, Russia has condemned the recent SFOR operation in Prijedor. In the absence of U.S. leadership, Russian policies -- including, for example, the creation of "safe areas" and the avoidance of strategically significant air strikes against Bosnian Serb targets -- have predominated. When challenged, however, Russia has acquiesced to U.S. and European policy preferences. There is no decision by the West to apprehend war criminals forcibly. Russian foreign policy has held throughout the conflict because neither Russia's strategic interests in the Balkans nor its alliance with Serbia are strong enough to override its interests in cooperating with the West in this international arena. Russian concerns could be further assuaged by the Contact Group's portrayal of their intervention as a limited operation that poses no threat to the Bosnian Serb regime or its unindicted leadership.
3. Operational Risks
As the recent SFOR operation in Prijedor has shown, there are risks inherent in any military action, and they are especially high when a quick and precise action is needed to achieve success. These risks are reduced, however, in the context of Bosnia by the fact that SFOR has unlimited freedom of movement throughout the country, including the Bosnian Serb entity. As the recent British SAS preparations for the Prijedor operations reveal, this is an ideal situation from the intelligence standpoint of the use of special forces against selected targets in hostile territory.
Although the recent Bosnian Serb attacks against the U.N. and OSCE, and threats by Pale of widespread retaliation against NATO give cause for concern, this should not distract the U.S. and its allies from undertaking further operations to arrest war criminals. It should be recalled that the Bosnian Serbs regularly used such intimidation tactics during the war, but desisted from employing them when overwhelming force was brought against them. The risk of eventual Serbian action against U.S. or IFOR troops is equally small. However, no chances should be taken. Any action to apprehend war criminals must be accompanied by U.S. readiness to use force in the most decisive manner.
.
Recommendations:
(11) NATO military operations should continue and should be directed toward the seizure of high level indictees.
(12) President Clinton should instruct the United States forces operating in Bosnia to seek out and apprehend Radovan Karadzic and Ratko Mladic, as well as those responsible for operating concentration camps.
(13) The U.S. Military should assist the civilian mechanism in vetting the local police forces of suspected war criminals.
(14) The United States and its allies should deliver an unequivocal diplomatic message to Pale that it will be held directly responsible and accountable for any and all violent actions against SFOR, OSCE, UN etc. in response to legal military actions to arrest war criminals, and that failure to prohibit such actions will lead to a firm response by NATO against Bosnian Serb military assets.
D. Improve the Effectiveness of the International Tribunal
To improve the effectiveness and relevance of the International Tribunal it is necessary to develop an alternative prosecution strategy that focuses on:
- pursuing the principal figures responsible for orchestrating ethnic cleansing and genocide in Bosnia and Croatia;
- establishing a meaningful witness protection program;
- utilizing the authority of the International Tribunal to mandate the apprehension of indicted war criminals;
- conducting an independent review of the effectiveness of the International Tribunal.
1. Prosecute Principal Figures
In contrast to the Nuremberg and Tokyo tribunals which tried only the most senior Nazis and Japanese war criminals, the International Tribunal's Prosecutor has not targeted those individuals primarily responsible for orchestrating ethnic cleansing and genocide in Bosnia and Croatia. The majority of those publicly indicted by the International Tribunal are low-level figures, including prison guards and foot soldiers. Only a small number of those indicted are among the principal civilian and military leaders responsible for the atrocities, and many of the most culpable higher-level figures have still not been indicted.
Former Prosecutor Richard Goldstone has rationalized the failure to focus on key figures as follows: "Our strategy includes the investigation of lower-level persons directly involved in carrying out the crimes in order to build effective cases against the military and civilian leaders who were party to the overall planning and organization of those crimes."(27)
Yet, given its limited resources and the fact that the International Tribunal has but two courtrooms to try cases, this prosecution strategy has come under implicit criticism by the Inspector General of the United Nations. In a February 1997 report focusing on the Rwanda Tribunal, yet equally applicable to the International Tribunal, the Inspector General concluded that the failure of the Prosecutor to ensure that the limited resources of his Office were redirected to pursue key figures in the genocide "is the single most significant failing. Unless that is corrected, the Tribunal will have been created to little effect; the Rwandans will be right to suspect that justice delayed is justice denied; and the United Nations will have failed in its promise to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them."(28)
The failure of the International Tribunal to indict Slobodan Milosevic is all the more glaring in that a public case has been made for his indictment based on information solely available in the public domain and according to the standards of the International Tribunal as applied in its previous indictments.(29)
Recommendations:
(15) The International Tribunal should refocus its scarce resources into investigations of those primarily responsible for orchestrating ethnic cleansing and genocide in Bosnia and Croatia, including heads of state and notorious paramilitary leaders.
(16) Indictments should be issued without regard to perceived political consideration or consequences.
(17) The International Tribunal should abandon its perplexing policy of issuing formal letters/certificates to potential indictees stating that they have not been indicted by the International Tribunal.
2. Establish a Meaningful Witness Protection Program
One of the International Tribunal's challenges is the execution of a functioning witness protection program. Owing to this, over the strenuous objections of the defense, the International Tribunal has ruled that various witnesses could testify anonymously in order to protect themselves and their families from retribution.(30)
However, this decision has been rightly criticized on the grounds that the right to examine or cross-examine witnesses guaranteed by the International Tribunal's Statute cannot be effective without the right to know the identity of adverse witnesses.(31)
Recommendations:
(18) The International Tribunal should develop a plan for an adequate and effective witness protection program.
(19) The International Tribunal's witness protection program should receive additional funding to support its work.(32)
(20) Given the difficulties involved in securing cooperation from potential witnesses in the Bosnian Serb entity, and because the International Tribunal does not have a police force to compel witnesses to testify, available defense witnesses should be provided safe conduct. Orders for safe conduct should grant witnesses limited immunity from prosecution when appearing in The Hague to give testimony. Although orders for safe conduct are not
specifically provided for in the Statute or the Rules, the Trial Chamber could find authority in Rule 54.(33)
(21) If safe conduct is not feasible, the Trial Chamber should liberally permit defense witnesses to give testimony by means of video-link. The Trial Chamber has recently ruled that defense witnesses can offer testimony via video-conferencing if they cannot or will not travel to The Hague. The video-link could be a live television link between the Trial Chamber and a safe harbor such as an embassy in Bosnia-Herzegovina.
(22) To mitigate the very real threat of reprisals against witnesses who testify, the Trial Chamber should refrain from disclosing witnesses' identities to the public. This elementary form of witness protection is supported by the Statute and the Rules,(34)
each of which contains a provision to guarantee confidentiality.
3. Utilize the Authority of the International Tribunal to Mandate the Apprehension of Indicted War Criminals
Article 29 of the substantive law of The Hague Tribunal mandates the arrest or detention(35)
, as well as the surrender or transfer(36)
, of any accused individual to the International Tribunal. The International Tribunal's enforcement powers are more fully implemented by its rules.(37)
Under Rule 40, the Prosecutor is also permitted in urgent situations to request the provisional arrest of a suspect even before he or she has been formally accused by the International Tribunal.(38)
To further the success of the International Tribunal's mandate, the Prosecutor, in such situations, is also given the power to request "all necessary measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence."(39)
Should a lack of cooperation with the International Tribunal result in either a failure to execute a warrant of arrest or to report this failure to the International Tribunal within a reasonable time, the President of the International Tribunal is empowered to notify its parent body, the United Nations Security Council for further action.(40)
In this event, when a warrant has not been properly executed(41)
, a Judge of the International Tribunal Chamber must issue an international arrest warrant for the accused.(42)
Under generally accepted public international law, the individual then becomes an accused enemy of all mankind (hostis humani generis) and thus, subject to arrest anywhere in the world under universal jurisdiction.
Moreover, since "all states can be held to have a legal interest" in the arrest, detention and surrender of the individual, they are all under an obligation erga omnes(43)
to conform to the authority of the United Nations Security Council and the International Tribunal, as the alleged crimes of the accused concern "the basic rights of the human person."(44)
The International Court of Justice has held that such obligations "have entered into the body of general international law."(45)
These consequences are no less than a "recognition of supremacy of the law of humanity" for protection against any and all violations "of elementary human rights in a manner which may justly be held to shock the conscience of mankind."(46)
Recommendations:
The International Tribunal should more regularly report to the United Nations Security Council those states failing to comply with its orders.
The International Tribunal should more regularly and openly request the extradition of indicted war criminals from specific states.
The International Tribunal should more regularly and openly request that certain states provide it with information regarding indicted or suspected war criminals.
The International Tribunal should request that the contributing states to SFOR actively seek to arrest and transfer to The Hague indicted war criminals living in the theater of operation.
Moreover, the International Tribunal should request apprehension by specific states whose forces patrol zones where indicted war criminals are suspected to reside and/or visit frequently.
4. Provide Adequate Funding for the Work of the International Tribunal
One of the highest priorities for the International Tribunal is to increase its budget for the remainder of 1997. The U.N. Secretariat has frozen the International Tribunal's budget for the first quarter of 1997 at 1996 levels. Although established in 1993, the International Tribunal did not receive any significant allocation of funding from the United Nations until 1994, and even this amount was minimal. The International Tribunal's total budget for 1994-1995 was $32.6 million. Over $22 million, however, was directed at salaries and administrative costs. The two-year budget for investigative expenses was approximately $560,000. The relatively small amount of funding has slowed down the investigative process for the International Tribunal. Without further financial support, the International Tribunal will be at a crossroads, where active investigations may have to stop, and where programs for defense preparation, witness protection and resettlement will be compromised.
Complicating the dire financial situation of the International Tribunal has been the insistence that all member states which seconded personnel to the International Tribunal pay a 13% surcharge to defray costs associated with accepting gratis personnel. Although applied throughout the United Nations system, this charge, and the unwillingness of certain states to pay this surcharge, particularly affects the International Tribunal as its 55 gratis personnel represent 23% of the International its professional staff.
Recommendations:
Governments and non-governmental organizations must actively lobby the Advisory Committee on Administrative and Budgetary Questions and the Fifth Committee (particularly by countries represented in both committees(47)
) to support the necessary increase in financial support for the International Tribunal.
The November 21, 1996 Report on Gratis Personnel should be amended to eliminate the 13% surcharge for program support costs related to gratis personnel provided by governments and other entities to the International Tribunals. The current requirements that all secondees be pre-approved by the relevant International Tribunals and adhere to all International Tribunal regulations are appropriate and will ensure that gratis personnel possess the required expertise and comply to all International Tribunal instructions.
The United Nations Secretary-General should adhere to United Nations Security Council Resolution 827 which unambiguously supports the use of gratis personnel for the International Tribunal.
The United States should urge a non-UN affiliated review of the effectiveness of the International Tribunal and means for improving its operation.
E. Establish Non-Prosecutorial Mechanisms
To augment the work of the International Tribunal a truth commission/vetting mechanism must be established to enhance the application of non-criminal sanctions, and to develop a victim compensation program.
1. Establish a Truth Commission/Vetting Mechanism
Given the vast number of atrocities in Yugoslavia, the truth needs to be told before successful reconciliation can occur. Criminal prosecutions, which by their nature focus on individual liability, are unable to tell the whole story of abuses. Cherif Bassiouni, former Chairman of the Yugoslavia War Crimes Commission, had proposed that his Commission be "folded into the Yugoslavia Tribunal."(48)
While the Yugoslavia War Crimes Commission was instead terminated when the International Tribunal's Office of Prosecutor was established, precedent exists for imbuing a prosecutor with the additional functions of a high-level truth commission in the mandate given to Lawrence Walsh, Independent Prosecutor for the Iran/Contra investigation, pursuant to Section 595(b)(2) of Title 28 of the United States Code.(49)
His three volume report provides a comprehensive "account of the Independent Counsel's investigation, the prosecutions, the basis for decisions not to prosecute, and overall observations and conclusions on the Iran/Contra matters."(50)
The Office of the Prosecutor of the International Tribunal should be given a similar mandate by the Security Council to prepare a comprehensive report based on its investigations.
Moreover, there is an ongoing need to remove from positions of influence those responsible for or reasonably suspected of committing war crimes. In particular, these individuals should be excluded from the military and police forces and should be denied the opportunity to hold public office. Currently the IPTF forces are assisting with the restructuring of the police forces in Sarajevo and Tuzla to exclude individuals suspected of committing atrocities. A broader precedent for such action would include the American vetting and retraining of the Haitian police force and efforts by Germany to exclude from the judiciary former communist party members. As the situation in Bosnia might as of yet not be sufficiently stable to permit the parties to unilaterally vet indicted and suspected war criminals, a joint process should be set up with the participation of the international community.
Recommendations:
The Office of the Prosecutor should be provided with an additional mandate and staff to serve as a high level truth commission responsible for the purpose of creating an accurate and unbiased historical record of the ethnic cleansing and genocide which occurred in Bosnia.
The United Nations, in conjunction with the above recommendation, should authorize the creation of a number of local truth commissions to assemble a historical record of specific atrocities. These commissions should include members of the local community and a staff of psychologists and victims' advocates to address the trauma associated with the presentation of testimony by witnesses.(51)
The existing local Truth Commission should come under supervision of the United Nations to ensure the creation of an unbiased historical record.
The IPTF should continue and expand its efforts to reconstitute the police forces in Bosnia and begin to include forces in the Bosnian Serb entity.
An entity separate from the United Nations should establish a mechanism for the purpose of investigating non-party complicity in ethnic cleansing and genocide, including the Sarajevo siege and the Srebrenica massacre.
The United States should create a U.S. WatchList to deny U.S. entry visas to suspected war criminals. The United States should further instruct government officials to avoid any and all contact with individuals on the list.
2. Create a Victim Compensation Program
The Universal Declaration of Human Rights, the Covenant on Civil and Political Rights, and the Torture Convention all recognize the right of victims of human rights abuses to receive compensation for their injury.(52)
Compensable damages include loss of life, physical or psychological injury, loss of liberty, loss or damage to property, loss of opportunity, and other injuries proximately caused by the abuses.(53)
Compensation for these damages can either be monetary or in the form of non-monetary reparation such as provision of new employment, pension rights, medical and educational services, social security, and housing.(54)
Although the Dayton Accords provide for the creation of a compensation commission, its jurisdiction is limited to property claims.
Without international action, there is little likelihood that victims of atrocities in the former Yugoslavia will obtain compensation from the individual perpetrators or the governments responsible for their suffering. The international community should help in two ways: first, the United Nations could set up a victim compensation fund and urge foreign governments to allocate a certain percent of their aid to the countries of the former Yugoslavia to that fund; second, the Security Council should establish a Compensation Commission modeled after the Commission established in 1991 which created a fund and oversaw the payment of compensation for claims against Iraq "for any direct loss, damage, including environmental damage and the depletion of natural resources, or any injury to foreign Governments' nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait."(55)
Such a mechanism was originally contemplated for the International Tribunal. Although the Statute of the International Tribunal does not give it the power to award victim compensation, a clause was included in Security Council Resolution 827, declaring that the creation of the International Tribunal was without prejudice to the future establishment of a victim compensation program.(56)
Recommendations:
The United Nations Security Council should create a voluntary fund for the provision of financial compensation to the victims of atrocities.
The United Nations Security Council should order that certain assets of the Republic of Serbia, the Bosnian Serb entity, and the Republic of Croatia be frozen and then contributed to this fund.
The United Nations Security Council should order that the individual assets of indicted war criminals be seized and transferred to this fund.
The United States, which maintains its freeze on assets, should divide those assets according to the Brussels negotiations and transfer a certain share of the assets identified as belonging to the Republic of Serbia and the Republic of Croatia to a United States administered compensation fund.
F. Improve the Quality and Effectiveness of Domestic Prosecutions
1. Revamp the Rules of the Road Agreement.
On February 18, 1996 the parties to the Dayton Accords sought to strengthen the peace process by agreeing that persons other than those indicted by the International Tribunal could be arrested and detained for war crimes only pursuant to a previously issued order, warrant or indictment that had been reviewed by the Office of the Prosecutor for the International Tribunal and deemed consistent with international legal standards. This agreement was known as the "Rules of the Road" agreement and became effective immediately.
To date, the Bosnian Government has submitted approximately 350 cases to the International Tribunal for review, however it continues to detain a number of suspects whose files it has not transferred to the International Tribunal. Furthermore, the Croatian Government, which has declared its intentions to prosecute more than 150 persons for war crimes, has not submitted their files to the International Tribunal. Similarly, the Bosnian Serb entity has submitted only a few files to the International Tribunal.
For its part, the Prosecutor's office has failed to martial or commit the resources necessary to review the files promptly which have been presented by the states. As such, only a small fraction of the files have been reviewed, thus effectively blocking national efforts to prosecute war crimes by those states which have complied with the Rules of the Road agreement.
Recommendations:
The International Tribunal should be provided with additional financial and personnel resources to enable the Prosecutor to review the large number of case files expected to fall under the Rules of the Road.
The Prosecutor should establish guidelines and assemble lawyers, prosecutors and translators to begin reviewing files.(57)
The international community should increase pressure on all parties to adhere to the procedures established in the "Rules of the Road," specifically the requirement to seek International Tribunal authorization before arresting or detaining any individual suspected of committing a war crime.
The international community should increase pressure on all parties to release any individual in custody whose case has been reviewed by the International Tribunal and found to lack the adequate evidence necessary for prosecution on war crimes.
The international community should increase pressure on all parties to ensure that all suspects are afforded their due process rights by local authority. These rights include access to counsel; limited detention at police headquarters; informing suspect's family of his/her whereabouts; speedy trial; periodical judicial review; and adequate medical care.
2. Increase the Domestic Capacity for the Prosecution of
War Criminals
There are two competing views regarding the role of national courts in prosecuting war crimes. The first advocates a strong role for the International Tribunal in prosecuting all alleged war criminals. This view is premised on the argument that national courts cannot handle these types of cases because of their complexities and because the courts are struggling to restructure their own legal systems. The second view is that the International Tribunal simply does not have the capacity to prosecute a large number of alleged war criminals; the International Tribunal should focus on the "key players." Thus, there is little choice but to rely on the national courts to prosecute the remaining alleged war criminals.
Although the International Tribunal has primacy over national courts to defer to the competence of the International Tribunal, it still recognized the right of national courts to conduct war crimes trials. In creating the International Tribunal, the UN Security Council made clear its intention to encourage states to prosecute war criminals.
However, the reality of the situation on-ground in Bosnia and Herzegovina is that the legal system has not yet sufficiently matured to undertake a prominent role in prosecuting persons accused of violating international humanitarian law. Problems in the current legal system include: the lack of cooperation between the Federation and the Bosnian Serb entity on judicial matters; the lack of procedural laws to effectively prosecute and defend alleged war criminals; the inability to monitor trials; the lack of qualified defense attorneys; and the inability to subpoena witnesses. In short, the legal system in Bosnia and Herzegovina (both in the Federation and the Bosnian Serb entity) cannot yet guarantee a fair and politically unbiased judicial process.
The international effort in Ethiopia provides Bosnia a model for international community involvement in the reconstruction of domestic capacity to prosecute war crimes. In Ethiopia, the international community recently provided funding, attorneys, and judges to facilitate the prosecution of some 3,000 officials of the fallen Mengistu regime.(58)
Recommendations:
(47) In cooperation with the International Tribunal, a regular trial observance system should be implemented immediately by an international legal NGO.
(a) The trial observers should be experienced lawyers familiar with the civil law system and the jurisdiction of the legal system in Bosnia and Herzegovina. They should also have knowledge of international human rights standards, as pertinent to criminal trials.
(b) If it is not possible to obtain support from an international legal NGO, the two entities in Bosnia and Herzegovina should conduct joint observation teams, with representatives from both entities.
(48) In the short-term, the international community must pressure the Bosnian Serb entity to permit suspects to be represented by the lawyers of their choice. In the medium-term, a joint commission composed of members of the Federation Lawyers Association and the Bosnian Serb entity Lawyers Association must be formed to create a reciprocity agreement that would permit inter-entity representation.
(49) The United States should pressure local government authorities to:
(a) ensure an immediate end to torture and mistreatment of suspects by local police (this is particularly the case in the Una Sana Canton);
(b) void any prosecution where there is evidence of due process violations;
(c) prosecute any law enforcement personnel who violate the due process rights of suspects.
(50) The United States should provide assistance to local government authorities for the purpose of:
(a) increasing the training of local police on the rights of suspected war criminals;
(b) conducting a series of training programs for judges regarding the prosecution of alleged war criminals;
(c) creating an international team of legal experts to assist the national and local courts in preparing for and conducting war crimes trials;
(d) assisting the national governments in drafting domestic legislation and in creating mechanisms which would provide an opportunity for victims to seek civil redress for war crimes.
VI. Conclusion
There can be no lasting peace nor an end to the long national nightmare of Bosnia until all war criminals are arrested and brought to justice. Neither Croatia nor Serbia will be able to join the community of nations with all the rights and privileges that entails until they honor their obligations to the International Tribunal. The North Atlantic Treaty Organization will have undermined its raison d'être--the freedom and security of Europe--if it does not execute fully its authority to arrest indicted war criminals. The International War Crimes Tribunal for the former Yugoslavia will not have accomplished its mission if it does not move more efficiently and effectively in its pursuit and prosecution of those who have committed war crimes in Bosnia and Croatia. And the United States and its allies will have failed a profound test of their moral, ethical, political, and military leadership in the world if they do not act decisively to end the illegitimate freedom of men who have committed and condoned grave and heinous crimes against humanity.
Bringing War Criminals to Justice: Obligations, Options and Recommendations
Composite List of Recommendations
Political and Diplomatic Recommendations
1. The United States and its allies should consider recalling their ambassadors to Belgrade and Zagreb and formally downgrading their diplomatic relations with Serbia and Croatia until those states cooperate fully with the International Tribunal. This cooperation should include:
2. surrender of all suspects on territory under Belgrade's and Zagreb's control;
3. suspension of all political, military, and economic cooperation with their Bosnian client-entities and proxies for as long as those entities and proxies harbor war criminals;
4. full political, financial, and evidentiary support for the International Tribunal and its work.
5. The United States and its allies should consider suspending diplomatic contact with -- and political, military, economic, and any other support for -- the Bosnian Serb entity and entities and institutions under Bosnian Croat control until the Republic and those entities and institutions surrender all suspects on territory under their control; and provide full political, financial, and evidentiary support for the International Tribunal and its work.
6. The United States and its allies should terminate or prevent the acquisition of Partnership for Peace status for countries that harbor war criminals and/or provide less than full support for the International Tribunal and its work.
7. Members of the European Union should terminate or prevent union association with countries that harbor or support war criminals and/or provide less than full support for the International Tribunal and its work. Specifically, the EU should investigate and demand a full accounting by Cyprus of its support for the financial and business activities of indicted war criminal Radovan Karadzic.
Economic Recommendations
8. The United States should lead an effort in the United Nations Security Council to reimpose select sanctions against Serbia, and the Bosnian Serb entity would include:
9. the suspension of all rail, sea, air, and postal links with Serbia/Montenegro;
10. the suspension of the recognition of Serbian/Montenegrin passports;
11. the suspension of high level diplomatic contacts with Serbia/Montenegro and the recall of ambassadors;
(d) an embargo on exports to Serbia/Montenegro and the Bosnian Serb entity;
(e) a prohibition on imports from Serbia/Montenegro and the Bosnian Serb entity;
(f) the freezing of all Serb-government assets;
(g) the impounding of all Serb-owned vessels;
(h) the prohibition of Serb participation in international sporting events.
12. The United States should lead an effort in the United Nations Security Council to require under the Authority of Article 41 of the UN Charter that states freeze the assets of individuals indicted by the International Tribunal.
13. Acting under the International Emergency Economic Powers Act, President Clinton should impose an economic embargo on all United States imports to or exports from Serbia and the Bosnian Serb entity.
14. Acting under the International Emergency Economic Powers Act, President Clinton should order that the personal assets located in the United Sates of all indicted war criminals be seized.
15. The President should immediately suspend all financing by the Export-Import Bank (Ex-Im Bank) and the Overseas Private Investment Corporation (OPIC) of U.S. Businesses working in Croatia, Serbia and the Bosnian Serb entity.
16. The President should suspend all existing or planned U.S. Agency for International Development (AID) assistance in the Bosnian Serb entity.
Recommendations for Apprehension by United States and NATO Military Forces
17. NATO military operations should continue and be directed toward the seizure of high level indictees.
18. President Clinton should instruct the United States forces operating in Bosnia to seek out and apprehend Radovan Karadzic and Ratko Mladic, as well as those responsible for operating concentration camps.
19. The U.S. Military should assist the civilian mechanism in vetting the local police forces of suspected war criminals.
20. The United States and its allies should deliver an unequivocal diplomatic message to Pale that it will be held directly responsible and accountable for any and all violent actions against SFOR, the OSCE, the UN, etc. in response to legal military actions to arrest war criminals, and that failure to prohibit such actions will lead to a firm response by NATO against Bosnian Serb military assets.
Recommendations for Improving the Effectiveness of the International Tribunal
21. The International Tribunal should refocus its scarce resources into investigations of those primarily responsible for orchestrating ethnic cleansing and genocide in Bosnia and Croatia, including heads of state, and notorious paramilitary leaders.
22. Indictments should be issued without regard to perceived political consideration or consequences.
23. The International Tribunal should abandon its perplexing policy of issuing formal letters/certificates to potential indictees stating that they have not been indicted by the International Tribunal.
24. The International Tribunal should develop a plan for an adequate and effective witness protection program.
25. The International Tribunal's witness protection program should receive additional funding to support its work.
26. Given the difficulties involved in securing cooperation from potential witnesses in the Bosnian Serb entity, and because the International Tribunal does not have a police force to compel witnesses to testify, available defense witnesses should be provided safe conduct. Orders for safe conduct should grant witnesses limited immunity from prosecution when appearing in The Hague to give testimony. Although orders for safe conduct are not specifically provided for in the Statute or the Rules, the Trial Chamber could find authority in Rule 54.
27. If safe conduct is not feasible, the Trial Chamber should liberally permit defense witnesses to give testimony by means of video-link. The Trial Chamber has recently ruled that defense witnesses can offer testimony via video-conferencing if they cannot or will not travel to The Hague. The video-link could be a live television link between the Trial Chamber and a safe harbor such as an embassy in Bosnia-Herzegovina.
28. To mitigate the very real threat of reprisals against witnesses who testify, the Trial Chamber should refrain from disclosing witnesses' identity to the public. This elementary form of witness protection is supported by the Statute and the Rules, each of which contains a provision to guarantee confidentiality.
29. The International Tribunal should more regularly report to the United Nations Security Council those states failing to comply with its orders.
30. The International Tribunal should more regularly and openly request the extradition of indicted war criminals from specific states.
31. The International Tribunal should more regularly and openly request that certain states provide information to the International Tribunal regarding indicted or suspected war criminals.
32. The International Tribunal should request that the contributing states to SFOR actively seek to arrest and transfer to The Hague indicted war criminals living in the theater of operation.
33. The International Tribunal should request apprehension by specific states whose forces patrol zones where indicted war criminals are suspected to reside and/or visit frequently.
34. Governments and non-governmental organizations must actively lobby the Advisory Committee on Administrative and Budgetary Questions and the Fifth Committee (particularly by countries represented in both committees) to support the necessary increase in financial support for the International Tribunal.
35. The November 21, 1996 Report on Gratis Personnel should be amended to eliminate the 13% surcharge for program support costs related to gratis personnel provided by governments and other entities to the International Tribunals. The current requirements that all secondees be pre-approved by the relevant International Tribunals and adhere to all International Tribunal regulations are appropriate and will ensure that gratis personnel possess the required expertise and comply to all International Tribunal instructions.
36. The United Nations Secretary-General should adhere to United Nations Security Council Resolution 827 which unambiguously supports the use of gratis personnel for the International Tribunal.
37. The United States should urge a non-UN affiliated review of the effectiveness of the International Tribunal and the means for improving its operation.
Recommendations for Establishing Prosecutorial Mechanisms
38. The Office of the Prosecutor should be provided with an additional mandate and staff to serve as a high level truth commission responsible for the purpose of creating an accurate and unbiased historical record of the ethnic cleansing and genocide which occurred in Bosnia.
39. The United Nations, in conjunction with the above recommendation, should authorize the creation of a number of local truth commissions to assemble a historical record of specific atrocities. These commissions should include members of the local community and a staff of psychologists and victims' advocates to address the trauma associated with the presentation of testimony by witnesses..
40. The existing local Truth Commissions should come under supervision of the United Nations to ensure the creation of an unbiased historical record.
41. The IPTF should continue and expand its efforts to reconstitute the police forces in Bosnia and begin to include forces in the Bosnian Serb entity.
42. An entity separate from the United Nations should establish a mechanism for the purpose of investigating non-party complicity in ethnic cleansing and genocide, including the Sarajevo siege and the Srebrenica massacre.
43. The United States should create a U.S. WatchList to deny U.S. entry visas to suspected war criminals. The United States should further instruct government officials to avoid any and all contact with individuals on the list.
44. The United Nations Security Council should create a voluntary fund for the provision of financial compensation to the victims of atrocities.
45. The United Nations Security Council should order that certain assets of the Republic of Serbia, the Bosnian Serb entity, and the Republic of Croatia be frozen and then contributed to this fund.
46. The United Nations Security Council should order that the individual assets of indicted war criminals be seized and transferred to this fund.
47. The United States, which maintains its freeze on assets, should divide those assets according to the Brussels negotiations and transfer a certain share of the assets identified as belonging to the Republic of Serbia and the Republic of Croatia to a United States administered compensation fund.
Recommendations for Improving the Quality and Effectiveness of Domestic Prosecutions
48. The International Tribunal should be provided with additional financial and personnel resources to enable the Prosecutor to review the large number of case files expected to fall under the Rules of the Road.
49. The Prosecutor should establish guidelines and assemble lawyers, prosecutors and translators to begin reviewing files.
50. The international community should increase pressure on all parties to adhere to the procedures established in the "Rules of the Road," specifically the requirement to seek International Tribunal authorization before arresting or detaining any individual suspected of committing a war crime.
51. The international community should increase pressure on all parties to release any individual in custody whose case has been reviewed by the International Tribunal and found to lack the adequate evidence necessary for prosecution on war crimes.
52. The international community should increase pressure on all parties to ensure that all suspects are afforded their due process rights by local authority. These rights include: access to counsel; limited detention at police headquarters; informing suspect's family of his/her whereabouts; speedy trial; periodical judicial review; and adequate medical care.
53. In cooperation with the International Tribunal, a regular trial observance system should be implemented immediately by an international legal NGO.
54. trial observers should be experienced lawyers familiar with the civil law system and the jurisdiction of the legal system in Bosnia and Herzegovina. They should also have knowledge of international human rights standards, as pertinent to criminal trials;
55. if it is not possible to obtain support from an international legal NGO, the two entities in Bosnia and Herzegovina should conduct joint observation teams, with representatives from both entities.
56. In the short-term, the international community must pressure the Bosnian Serb entity to permit suspects to be represented by the lawyers of their choice. In the medium-term, a joint commission composed of members of the Federation Lawyers Association and the Bosnian Serb entity Lawyers Association must be formed to create a reciprocity agreement that would permit inter-entity representation.
57. The United States should pressure local government authorities to:
58. ensure an immediate end to torture and mistreatment of suspects by local police (this is particularly the case in the Una Sana Canton);
59. void any prosecution where there is evidence of due process violations;
60. prosecute any law enforcement personnel who violate the due process rights of suspects.
61. The United States should provide assistance to local government authorities for the purpose of:
62. increasing the training of local police on the rights of suspected war criminals;
63. conducting a series of training programs for judges regarding the prosecution of alleged war criminals;
64. creating an international team of legal experts to assist the national and local courts in preparing for and conducting war crimes trials;
65. assisting the national governments in drafting domestic legislation and in creating a mechanism which would provide an opportunity for victims to seek civil redress for war crimes.
1. The workshop, which was held at the University of Dayton on March 19-21, 1997, was made possible through a generous grant from the David and Lucile Packard Foundation. Additional support was provided by the University of Dayton's Center for International Programs, School of Law, and Office of Development.
2. We wish to thank the staff of the University of Dayton Center for International Programs, especially Sharon Conway, James Stiles, and Andrew Bosworth for their assistance in this project. Rebecca Hitchner (University of Dayton) assisted in editing the report, Scott Worden (Carnegie Endowment) and Shazia Anwar (American University, Washington College of Law) provided research support. We are grateful to the faculty and administration of the University of Dayton for their support, especially Fran Conte, John Geiger, Patrick Palermo, David Raible and Shelley Outlaw. Others contributed in innumerable ways: David Neer, President of the Dayton Council on World Affairs, the Louise McGinnis family, and Alistair Michelli of the Balkan Institute.
3. A number of government officials also participated in the workshop.
4. Report to the United Nations Security Council. UN Doc. A/49/342, S/1994/1007
5. Priscilla B. Hayner, Fifteen Truth Commissions--1974 to 1994: A Comparative Study, in 1 Transitional Justice 225-262 (1994). "The great virtue of legal proceedings," writes one scholar of nationalism, "is that their evidentiary rules confer legitimacy on otherwise contestable facts." Michael Ignatieff, "Articles of Faith," Index on Censorship, September/October 1996.
6. See Report to the President from Justice Robert H. Jackson, Chief of Counsel for the United States in the Prosecution of Axis War Criminals, June 7, 1945, reprinted in 39 AJIL 178, 184 (Supp. 1945).
7. "Healing Wounded People," a speech by Justice Richard Goldstone at the United States Holocaust Memorial Museum, (January 27, 1997).
8. Hitler's Speech to Chief Commanders and Commanding Generals, Aug. 22, 1939, quoted in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 176 n.96 (1992).
9. Tribunal Press Release, CC/PIO/027-E, November 24, 1995.
10. Preamble to United Nations Security Council Resolution 827 (May 25, 1993).
11. United Nations Security Council Resolution 827. The International Tribunal consists of a Prosecutor and his staff, Chambers, including two Trial Chambers and an Appeals Chamber, and a Registry. See Article 11 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, at 13 (May 25, 1993).
12. Article 2 (6) and 25 of the United Nations Charter establish the respective obligations of non-Member and Member States to comply with Security Council decisions when necessary for the maintenance of international peace and security.
13. Report to the United Nations Security Council. UN Doc. A/49/342, S/1994/1007, p. 31.
14. Chapter VII, Charter of the United Nations.
15. See articles 25 and 103 of the United Nations Charter, and article 46 of the Vienna Convention on the Law of Treaties (article 46 is considered to accurately reflect customary international law).
16. General Framework Agreement, Article IX.
17. Article IX of Annex 4 to the General Framework Agreement.
18. Despite the indictment of General Blaskic for war crimes and crimes against humanity, Croatian President Franjo Tudjman awarded General Blaskic a military medal for his role in retaking the Knin region in 1995. Medal for Indicted Croat, The New York Times, (Dec. 10, 1996). Moreover, as recently as July 21, 1997, the Croatian government indicated that "it would use all legal means available" to avoid turning over documents in the Blaskic case requested by the International Tribunal, see "Bosnian Serb Leader Urges Democracy," International Herald Tribune," (July 22, 1997).
19. Bosnian Serbs Resist U.N. Order, The Washington Post, (Jan. 11, 1997).
20. Zeljko Mejakic, Mladen Radic, Miroslav Kvocka and Nedeljko Timarac hold positions as police officers, while Blagoje Simic and Stevan Todorovic hold influential public positions in Bosanski Samac. Elizabeth Neuffer, "Indicted Serb Town Official 'not uncatchable,'" The Boston Globe, pg. A1 (Nov. 1, 1996).
21. Chris Hedges, "Bosnian Serb Area Destitute and Vulnerable," New York Times (March 11, 1997).
22. Chris Hedges, "Bosnian Serb Chief Fears for Life," International Herald Tribune (July 7, 1997). The current power struggle between Plavsic and Karadzic has caused a split within the ranks of the Bosnian Serbs with Karadzic accusing Plavsic of complicity with NATO in the recent Prejidor operation and Plavsic threatening to arrest Karadzic for corruption.
23. At the heart of this policy was the belief that it was better to avoid apprehending war criminals on account of the risk it posed to NATO forces in Bosnia. However, this concern focused on the short term risks of apprehension rather than the long term moral, legal, and political necessity of arresting individuals charged with grave crimes against humanity. Note in this regard the statement by Klaus Naumann, Chairman of NATO's military command: "Soldiers never make good policemen. If politicians ask us to take action against war criminals, they should realize the operative risks may last a long time. We do not know what the aftermath would be because many people regard these criminals as heroes worth defending." quoted in William Droszdiak, "NATO Rejects Hunting Bosnia Crimes Suspects," International Herald Tribune (June 14,1997). A criminal's so-called status as a hero cannot be used to excuse a failure to bring him to justice. It should only be employed to justify a planned operation for his arrest that takes into account these complexities.
24. New York Times, June 6, 1997.
25. Press Statement by the Prosecutor, Justice Richard Goldstone, in Conjunction with the Announcement of Indictments on 25 July 1995.
26. Statement of the President of the Security Council, S/PRST/1996/13, May 8, 1996. In October 1996, the Security Council adopted Resolution 1074, permanently lifting the sanctions imposed on Serbia and the Bosnian Serb Republic.
27. Press Statement of the Prosecutor, Justice Richard Goldstone, in Conjunction with the Announcements of Indictments on 25 July 1995.
28. Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, U.N. Doc. A/51/789, 6 February 1997 (Annex), at para. 59.
29. Paul Williams and Norman Cigar, War Crimes and Individual Responsibility: A Prima Facie Case for the Indictment of Slobodan Milosevic. (1996).
30. Decision on the Prosecutor's Motion for Protective Measures for Victims and Witnesses, 10 August 1995, IT. Doc. IT-94-I-T.
31. Monroe Leigh, Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, 90 AJIL 235 (1996).
32. For a full discussion of Recommendations 19-22 see Mark Ellis, "Justice before the International War Crimes Tribunal--Needed Changes for Defense Council," Duke Journal of Comparative and International Law, 3.2 (1997).
33. Rule 54 reads of the Tribunal's Rules and Procedures reads "At the request of either part or proprio motu a judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or the preparation or conduct of the trial."
34. Statute of the International Tribunal, art. 204; Rule 69.
35. Art. 29(2)(d)
36. Art. 29(2)(e)
37. M. Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia
789 (1996).
38. Rule 40(I)
39. Rule 40(iii)
40. Rule 59
41. Rule 61(A)
42. Rule 61(D)
43. Case Concerning Barcelona Tradition (Belgium v. Spain) 1970, I.C.J. 3, Par. 33
44. Ibid, par. 34.
45. Id.
46. Robert Jennings and Arthur Watts, Oppenheim's International Law 998 (1992).
47. Members of the ACABQ come from Barbados, Brazil, China, Cuba, France, Germany, India, Italy, Japan, Mali, New Zealand, Romania, Russia, Syria, Tanzania and Tunisia.
48. Iain Guest, On Trial: The United Nations, War Crimes, and the Former Yugoslavia, an unpublished report of the Refugee Policy Group, September, 1995, at 90.
49. 28 U.S.C. Section 595(b)(2) "establishes a stand-by mechanism for the appointment of a temporary special prosecutor when needed." Its purpose is "to preserve and promote the accountability and integrity of public officials and of the institutions of the Federal Government and to invigorate the Constitutional separation of powers between the three branches of Government." See Legislative History of P.L. 95-521, reproduced in 3 Lawrence E. Walsh, Final Report of the Independent Counsel for Iran/Contra Matters 4217 (United States Court of Appeals for the District of Columbia Circuit, August 4, 1993).
50. Lawrence E. Walsh, 1 Final Report of the Independent Counsel for Iran/Contra Matters xvi (United States Court of Appeals for the District of Columbia Circuit, August 4, 1993).
51. See Suzanne Daley, "In Apartheid Inquiry, Many Only Relived the Pain," International Herald Tribune, (July 18, 1997).
52. Diane F. Orentlicher, "Addressing Gross Human Rights Abuses: Punishment and Victim Compensation," in Human Rights: An Agenda for the Next Century (Louis Henkin and John Lawrence Hargrove, eds, 1994), at 448-449; Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, United Nations Commission on Human Rights, Sub Commission on Prevention of Discrimination and Protection of Minorities, Theo van Boven, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1990/10, July 26, 1990, reproduced in 1 Transitional Justice 505, 515 (N. Kritz, ed. 1995).
53. Ellen L. Lutz, "After the Elections: Compensating Victims of Human Rights Abuses," in 1 Transitional Justice 551, 559 (N. Kritz, ed., 1995).
54. Theo van Boven, "Seminar on the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Summary and Conclusions," in 1 Transitional Justice 500 (N. Kritz, ed., 1995).
55. Security Council Resolution 687 (1991), para. 18. The Iraqi Compensation Commission has received over 2,335,000 claims submitted by 78 Governments on behalf of their citizens. Letter Dated 17 January 1994 From the President of the Governing Council of the United Nations Compensation Commission Addressed to the President of the Security Council, U.N. Doc. S/1994/107, 2 February 1994.
56. However, the Security Council later unfroze the assets of Serbia and the Bosnian Serbs (via Resolution 1074), thereby for the time being removing any possibility for such a program for the victims of ethnic cleansing in the Balkans. If the Security Council were to again freeze the assets of indicted Yugoslav War Criminals, those assets could be used for this purpose.
57. The Tribunal needs immediate assistance in reviewing the case files now in their possession. The American Bar Association's Central and East European Law Initiative (CEELI), through its Coalition for International Justice (CIJ) will provide the Tribunal with three U.S. criminal lawyers and three translators. The Prosecutor will ultimately decide the fate of each file. The Rome Agreement requires that the Prosecutor, and not a third party, makes a determination as to the strength of the evidence against persons suspect to investigation, arrest, or detention by local authorities. The CEELI attorneys will conduct the analytical review. The CEELI attorneys will prepare memoranda in which they assess the strength of the evidence in the dossiers against the accused.
58. See Luc Huyse, Justice After Transition: On The Choices Successor Elites Make in Dealing with the Past, in 1 Transitional Justice: How Emerging Democracies Reckon with Former Regimes 335 (N. Kritz, ed. 1995). See also Ethiopia, Report of the Office of the Special Prosecutor (February 1994), reprinted in 3 Transitional Justice: How Emerging Democracies Reckon with Former Regimes 107 (N. Kritz, ed. 1995).
Bringing War Criminals to Justice: Obligations, Options, Recommendations. Copyright © The Center for International Programs 1997. All rights reserved. Printed in the United States of America. For information address Center for International Programs, The University of Dayton, 300 College Park, Dayton, Ohio 45469-1481.
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