It is difficult to imagine the human destruction that occurred from 1991 to 1995 in the former Yugoslavia. The Bosnian town of Srebrencia's fate was perhaps the worst. Srebrencia consisted of approximately 75% Muslims and 25% Serbians.⁽¹⁾ The Bosnian Serbs first attacked Srebrencia in March 1993, killing and injuring civilians, while slowing efforts to deliver aid to the growing number of Muslim refugees.⁽²⁾ After the initial attacks, the United Nations on April 16, 1993 unanimously adopted Resolution 819,⁽³⁾ which designated Srebrencia and the surrounding region a "safe area."⁽⁴⁾ Resolution 819 required the Secretary General increase the number of United Nations peacekeepers there, and demanded the immediate withdrawal of Bosnian Serb forces.⁽⁵⁾

On April 18, 1993, General Ratko Mladic, the Bosnian Serbian Commander, along with the Bosnian Government, agreed to demilitarize Srebrencia.⁽⁶⁾ Then, on June 4, 1993, the Security Council adopted Resolution 836⁽⁷⁾ which authorized United Nations forces to use all means necessary to respond to attacks on Srebrencia and other designated United Nations "safe areas."⁽⁸⁾ However, on July 10, 1995, Srebrencia was seized by Bosnian Serbian forces as a continuing part of their "ethnic cleansing" campaign.⁽⁹⁾ Srebrencia was the last United Nations "safe area" to fall in eastern Bosnia. First, the 7,000 men of military age were separated from the town's population and apparently massacred.⁽¹⁰⁾ Next, 3,000 women, children and elderly town's people were loaded into buses, transported approximately 25 miles away, and forced to walk six miles across the front lines to the Bosnian Serbian Government-controlled town of Kladanj.⁽¹¹⁾ Some of the women of Srebrencia were reportedly abducted by Bosnian Serbian forces and disappeared.⁽¹²⁾ In all, over 40,000 Muslims were to leave Srebrencia in what has been described as an act of genocide.⁽¹³⁾ The former Yugoslavia has many villages, towns, and cities that have known the fate of Srebrencia.⁽¹⁴⁾ The Office of the United Nations High Commissioner for Refugees in Washington estimates that there are now 2.7 million refugees and displaced persons in Bosnia who are dependent on the United Nations for food and shelter.⁽¹⁵⁾ There are the other reports of grave human rights violations--reports that include prisoners forced to injure each other;⁽¹⁶⁾ "sick or injured prisoners piled with corpses into mass graves and buried alive; men forced to play Russian roulette with guns in their mouths; and women gang raped in front of their children."⁽¹⁷⁾ Tadeusz Mazowiecki, former United Nations Special Rapporteur on Human Rights Violations in the former Yugoslavia, has estimated that 80% of human rights violations there are due to the conduct of Bosnian Serbians.⁽¹⁸⁾ James Gannon, Deputy Director of the CIA (Central Intelligence Agency), testified that "[e]thnic Serbs are responsible for the overwhelming majority of the . . . displacement, and loss of life associated with ethnic cleansing in Bosnia."⁽¹⁹⁾

Victims of "ethnic cleansing," both Muslim and others, will want to bring those Bosnian Serbians responsible to justice. Yet, justice requires proof. Throughout the conflict in the former Yugoslavia, an international humanitarian organization called the International Committee of the Red Cross (hereafter "ICRC"), has continually documented the incidences of human rights violations. This information may be critical to victims seeking suit against Bosnian Serbians responsible for their suffering. However, the ICRC has immunity from testifying,⁽²⁰⁾ and the ICRC has a policy against releasing any of the information it gathers. This article focuses on the difficulty for victims to obtain information in ICRC possession.

This article uses principles of international law and policy considerations to analyze the basis for immunity asserted by the ICRC. Part one provides background on the conflict in the former Yugoslavia, and background on the ICRC. Part two discusses how victims of human rights violations in the former Yugoslavia may obtain evidence only in ICRC possession to sue those responsible for compensation. This analysis reveals that ICRC immunity can be successfully thwarted.

II. BACKGROUND ON THE CONFLICT IN THE FORMER YUGOSLAVIA AND BACKGROUND ON THE ICRC

During the 1990 multi-party elections, the 45-year domination of the communist party ended and resulted in ethnic and political conflict.⁽²¹⁾ Nationalist powers began to emerge in the republics,⁽²²⁾ and resulted in four of the six republic declaring independence between June and October, 1991.⁽²³⁾ The invasion of the JNA (Yugoslavian National Army) into Slovenia, and the Serbian desire to have all 8.3 million Serbians live in a "Greater Serbia" led to the present armed conflict.⁽²⁴⁾ Efforts by the European Community Monitor Mission ( hereinafter "ECMM"), the United Nations,⁽²⁵⁾ and various other countries and organizations have failed to bring peace to the region.⁽²⁶⁾ On November 21, 1995, negotiations sponsored by the United States in Dayton, Ohio resulted in a peace agreement that⁽²⁷⁾ established separate Muslim and Serbian territories in the republic of Bosnia.⁽²⁸⁾ Also, NATO (North Atlantic Treaty Organization) troops are to be sent to the former Yugoslavia to maintain the peace.⁽²⁹⁾ Only time will tell if this agreement can establish a lasting peace. Meanwhile, the United Nations has launched an effort to bring to justice those responsible for human atrocities in the former Yugoslavia; the United Nations Security Council adopted Resolutions 808 and 827⁽³⁰⁾ which established an International Tribunal

for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the statute of the International Tribunal . . . .⁽³¹⁾

The International Tribunal will also "work . . . without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law."⁽³²⁾ Paragraph 5 of Security Council Resolution 771,

Call[ed] upon States and, as appropriate, international humanitarian organizations to collate substantiated information in their possession or submitted to them relating to the violations of humanitarian law, including grave breaches of the Geneva Conventions, being committed in the territory of the former Yugoslavia and to make this information available to the Council.⁽³³⁾

Paragraph 7 of this same resolution required, "that all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, shall comply with the provisions of the present resolution."⁽³⁴⁾ The ICRC would be considered as an "international humanitarian organization"⁽³⁵⁾ for purposes of paragraph 4 of Resolution 771 and also as an "other concerned in the former Yugoslavia"⁽³⁶⁾ for the purposes of paragraph 7 of the resolution. Therefore, pursuant to Resolution 771, the ICRC could be requested to provide the Security Council, and the Security Council created International Tribunal, with information concerning violations of humanitarian law committed in the former Yugoslavia.⁽³⁷⁾

B. The International Committee of the Red Cross

The ICRC is the founding component of The International Red Cross and Red Crescent Movements.⁽³⁸⁾ The ICRC's mandate is "to work for the faithful application of international humanitarian law,"⁽³⁹⁾ and to hold "[t]he interests of the victims . . . [as the] paramount consideration."⁽⁴⁰⁾ In order to fulfill this mandate the ICRC was granted a functional international legal personality by the Geneva Conventions.⁽⁴¹⁾

The ICRC believes that without strict adherence to its neutral status, it will no longer be able to fulfill its mandate.⁽⁴²⁾ Both the Statute of the International Red Cross and Red Crescent Movement and ICRC procedures to follow when breaches of international humanitarian law occur, stress ICRC neutrality.

[The International Red Cross and Red Crescent Movement] makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It [The International Red Cross and Red Crescent Movement] endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most urgent cases of distress."⁽⁴³⁾

"[T]o endeavor at all times - as a neutral institution [ICRC] whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife - to ensure the protection of and assistance to military and civilian victims of such events and of their direct results.⁽⁴⁴⁾

The ICRC believes neutrality spawns reliability and credibility, which in turn earns the ICRC confidence of all parties to a given conflict.⁽⁴⁵⁾ It is this confidence that allows the ICRC access to provide several means of protection and assistance to conflict victims and thus, to fulfill its mandate.⁽⁴⁶⁾

C. ICRC Procedures Followed in the Event of Breaches of International Humanitarian Law

The ICRC has developed four main procedures which it follows when breaches of international humanitarian law occur: (1) On the ICRC's own initiative, action may be taken; (2) the ICRC transmits complaints, or discusses the complaints with the parties involved; (3) the ICRC investigates an alleged breach; and, (4) the ICRC documents an alleged breach.⁽⁴⁷⁾ Depending upon the situation and surrounding circumstances, the ICRC can elect to implement one or more of these procedures.⁽⁴⁸⁾

Its specific role as a neutral intermediary between parties to a conflict and its duty to treat all the victims of armed conflict without discrimination require the ICRC, when faced with actual or alleged violations of international humanitarian law, to react only after having carefully weighed all the consequences that its reaction may entail for the victims.⁽⁴⁹⁾

Usually, all ICRC procedures and the information its gathers are confidential, and are thus considered immune from disclosure.⁽⁵⁰⁾ This confidentiality and immunity are meant to assure all parties to a given conflict that the ICRC is in fact a neutral body. Yet, in "special circumstances" the ICRC may waive its confidentiality and/or its immunity in accordance with its own Rules of Procedure.⁽⁵¹⁾ However, the ICRC has self-consciously refrained from developing the "special circumstances" exception.⁽⁵²⁾

The writings of ICRC commentators provide some light to what "special circumstances" may include.⁽⁵³⁾ It can be inferred from these writings that "special circumstances" include events that are already common knowledge, or exceptional situations,⁽⁵⁴⁾ such as grave, repeated violations, especially when the authorities responsible have been informed of the violations and do not take remedial action.⁽⁵⁵⁾ Under such "special circumstances" the ICRC may waive its immunity and participate in legal proceedings if, (1) such proceedings concern an infringement of the Geneva Conventions, (2) the ICRC is required to participate under a treaty or ad hoc agreement among all the parties concerned, and (3) a full guarantee of impartiality and absolute confidentiality are provided.⁽⁵⁶⁾

D. ICRC Efforts in the Former Yugoslavia

On July 2, 1991 the ICRC reminded all sides of the conflict in the former Yugoslavia via public appeals⁽⁵⁷⁾ of the fundamental rules of humanitarian law applicable to both internal and international armed conflicts.⁽⁵⁸⁾ Also, the ICRC has and continues to deploy its staff and resources to the former Yugoslavia.⁽⁵⁹⁾ In addition, the ICRC has had a number of meetings with the representatives of the six new republics.⁽⁶⁰⁾ In many instances, these meetings have resulted in various agreements in which the parties agree to act in accordance with the Geneva Conventions, and other related international humanitarian legal norms.⁽⁶¹⁾ The ICRC admits that many of these agreements have been broken since prisoners have continued to be tortured; women have continued to be raped; civilians have continued to suffer harassment and displacement; and areas have become inaccessible to ICRC aid shipments.⁽⁶²⁾ On May 18, 1992, the ICRC was apparently deliberately attacked, resulting in the death of an ICRC delegate.⁽⁶³⁾ The ICRC may be able to do more to aid victims by providing the International Tribunal with information the ICRC has gathered on breaches of international humanitarian law in the former Yugoslavia.

III. POTENTIAL AVENUES FOR VICTIMS OF HUMAN RIGHTS VIOLATIONS TO OBTAIN INFORMATION GATHERED BY THE ICRC

A. The ICRC's Immunity

The Geneva Conventions and the 1977 Additional Protocols, (hereafter "Geneva Conventions"), are considered the fundamental instruments of international humanitarian law.⁽⁶⁴⁾ The ICRC was granted by the Geneva Conventions a functional international legal personality.⁽⁶⁵⁾ Article 126 of the Third Geneva Convention states:

Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war, they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter.

Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exception and temporary measure.

The Detaining Power and the Power of which the said prisoners of war depend may agree, if necessary that compatriots of these prisoners of war be permitted to participate in the visits.

The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited. [Emphasis added].⁽⁶⁶⁾

While establishing a critical role for the ICRC, the Geneva Conventions do not specifically grant the ICRC immunity. ICRC commentators have stated, "[i]t must be assumed that in adopting the Conventions of 1949 and their Additional Protocols of 1977, States intended to provide the ICRC with the means and the prerogatives needed to perform the functions assigned to it under these instruments."⁽⁶⁷⁾ The ICRC thus takes the position that States have implicitly granted the ICRC immunity as a means needed to perform its function under international humanitarian law instruments.

To bolster this position ICRC commentators emphasize that the ICRC's functional international legal personality was confirmed by the United Nations on October 16, 1990 when the ICRC was granted observer status.⁽⁶⁸⁾ This United Nations grant, they argue, constituted a confirmation of the ICRC's legal immunity since

[

i]mmunity of jurisdiction is an essential prerogative of this status in that it guarantees the ICRC the requisite independence for fulfilling its mandate. In the situations addressed by the Conventions, such immunity should cover exemption from the giving of evidence concerning action by the ICRC or its delegates or facts that have come to their knowledge in the performance of their duties . . . Delegates and other ICRC staff may therefore not be compelled either to furnish information on matters deemed confidential or to give evidence. This applies to all situations covered by the international humanitarian law treaties, whether international or non-international armed conflicts. ⁽⁶⁹⁾

The ICRC's United Nations observer status, however, does not expressly grant the ICRC any immunity, and observer status generally is not interpreted as implying immunity beyond that necessary to attend United Nations meetings.⁽⁷⁰⁾

The ICRC points to further instances in which the international community has conveyed and confirmed the ICRC's immunity. Since 1994, authorities in 49 countries have concluded headquarters agreements with the ICRC that include granting the ICRC immunity.⁽⁷¹⁾ Also, authorities in other countries have tacitly granted the ICRC legal immunity.⁽⁷²⁾ The June 15, 1994 headquarters agreement between the ICRC and the Federal Republic of Yugoslavia, also known as Serbia-Montenegro is of particular relevance.⁽⁷³⁾ This headquarters agreement states in Article 10, Status of Members of the Delegation, that delegation members "shall enjoy immunity . . . in respect of words spoken or written and all acts done by them in the discharge of their official duties, immunity from legal process of any kind, even after they have left the service of the delegation. They shall not be called as witnesses."⁽⁷⁴⁾ Similar agreements have been concluded with Bosnia, Croatia, and Slovenia.⁽⁷⁵⁾ Since these agreements expressly grant the ICRC immunity from legal process, they constitute the best evidence that the ICRC does in fact possess immunity from testifying or producing evidence of human atrocities committed in the republics.⁽⁷⁶⁾

If victims of "ethnic cleansing" bring suit for violations of international humanitarian law in the former Yugoslavia against one or more Bosnian Serbians, they are likely to request the ICRC to provide any relevant information.⁽⁷⁷⁾ ICRC commentators appear to agree that victims should be compensated. Two ICRC commentators, Maria Theresa Dulti and Christina Pellandini, have written, "[i]ndeed, it is not enough to punish those responsible for such acts [breaches of international humanitarian law]; victims should also be effectively compensated for the injuries suffered."⁽⁷⁸⁾ Yet, the ICRC almost certainly would deny requests for information possessed only by the ICRC. The ICRC would state that the relevant headquarters agreement, the Geneva Conventions, and its United Nations observer status, grant the ICRC immunity from having to comply with such requests, and its policy of neutrality dictates that it not disclose such information.

B. The United Nations International Tribunal

The new republics, especially Bosnia-Herzegovina,⁽⁷⁹⁾ are heavily populated by individuals that require compensation for breaches under international humanitarian law. Victims could petition the International Tribunal directly, or victims could petition their government and request their government to petition the International Tribunal to require the ICRC to provide information.⁽⁸⁰⁾ The International Tribunal can request that the ICRC release information concerning breaches of international law in the former Yugoslavia.⁽⁸¹⁾

The purpose of the International Tribunal is to criminally prosecute violators of international humanitarian law.⁽⁸²⁾ However, it is important to note that the International Tribunal's statutes and rules recognize a clear relationship between its judgments and civil suits by victims for compensation. The Statutes of the International Tribunal, Article 24, paragraph 3 states, "[i]n addition to imprisonment the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners."⁽⁸³⁾ Also, Rule 74 allows for victims to present compensation issues to the Trial Chamber or the Appeals Court via an amicus curiae brief or appearance.⁽⁸⁴⁾ Further, Rule 106 states

(B) Pursuant to the relevant national legislation, a victim or persons claiming through him may bring an action in a national court or other competent body to obtain compensation. (C) For the purposes of a claim made under Sub-rule (B) the judgment of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.⁽⁸⁵⁾

One option for victims suggested by experts is to obtain compensation in their national judicial system armed with a judgment from the International Tribunal.⁽⁸⁶⁾ Victims could file claims in any national judicial system where the claim could be processed pursuant to national or international law.⁽⁸⁷⁾

C. The United Nations International Tribunal Requests Information From The ICRC

Pursuant to Resolution 771 the ICRC is an "international humanitarian organization," and also an "other concerned in the former Yugoslavia."⁽⁸⁸⁾ Therefore, the ICRC is "called upon . . . as appropriate . . . to collate substantiated information . . . relating to the violations of humanitarian law, including grave breaches of the Geneva Conventions, being committed in the territory of the former Yugoslavia and to make this information available to the [Security] Council."⁽⁸⁹⁾ The ICRC might argue that the agreement between itself and the Federal Republic of Yugoslavia, the Geneva Conventions, its United Nations observer status, and all other express or implied headquarters agreements grant the ICRC immunity. However, there are several reasons why these arguments should be rejected. First, United Nations observer status as discussed above does not expressly grant the ICRC such immunity.⁽⁹⁰⁾ Second, even ICRC delegates disagree whether observer status grants the ICRC immunity.⁽⁹¹⁾ Third, while the republics of the former Yugoslavia are signatories to headquarters agreements with the ICRC, these republics are also members of the United Nations. As such, they must comply with the United Nations Charter (hereafter "Charter").

Article 103 of the Charter states, "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."⁽⁹²⁾ Thus, any agreements, expressed or implied, between the ICRC and the republics granting the ICRC immunity are subservient to the Charter. The case law of the World Court supports the Charter as the "super treaty."⁽⁹³⁾ In 1984 and again in 1992 the International Court of Justice affirmed that Article 103 of the Charter trumps all other treaties to which United Nations members are signatories.⁽⁹⁴⁾ Even the ICRC acknowledges that the Geneva Conventions are subservient to the Charter. "[I]n situations of serious violations of the Convention or of this Protocol [Additional Protocol I], the High Contracting Parties [i.e. the ICRC] undertake to act, jointly or individually, in cooperation with the United Nations and in conformity with the United Nations Charter."⁽⁹⁵⁾

At present, pursuant to Resolution 771 paragraph 5,⁽⁹⁶⁾ the republics are not signatories to the Geneva Conventions. However, it is very likely that the new republics will become signatories to the Geneva Conventions given the Conventions universal affirmation by many states.⁽⁹⁷⁾ Meanwhile, there exists a widely recognized position by the Committee of Legal Advisors for the Council of Europe⁽⁹⁸⁾ that new states are bound to the human rights treaties entered into by the former state. Thus, if the new republics are new states, the republics are bound to the human rights treaties entered into by the Socialist Federal Republic of Yugoslavia. In fact, "Croatia and Slovenia declared themselves to be successor states to the former Yugoslavia in regard to human rights treaties which had been in force for Yugoslavia."⁽⁹⁹⁾ Given, the ICRC's mandate, it is unlikely that the ICRC will forward any argument that a state is not bound by the Geneva Conventions. Since the republics have become new United Nations members, it is clear that the international community considers the republics to be new states.

Thus far, the republics of Slovenia, Croatia, Bosnia-Herzegovina, and Macedonia have applied and received new membership in the United Nations.⁽¹⁰⁰⁾ Currently, Serbia-Montenegro is not a United Nations member.⁽¹⁰¹⁾ On September 19, 1992, the Security Council adopted Resolution 777.⁽¹⁰²⁾ This resolution,

[c]onsiders that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore [the Security Council] recommends to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.⁽¹⁰³⁾

Thus, the international community considers all the republics to be new states. Therefore, victims that have suffered breaches of the Geneva Conventions were also subject to violations of Resolution 771. Further, those republics who are United Nations members must adhere to the United Nations Charter. Thus, these republics cannot comply with any headquarters agreements granting the ICRC immunity that subvert the United Nations Charter.

D. Time Gaps Between ICRC Headquarters Agreements And United Nations Membership

The ICRC might argue that it has always possessed either expressed or implied headquarters agreements granting the ICRC immunity with all of the republics. Further, that most atrocities were committed when the republics were not United Nations members. Indeed, four of the six republics declared their independence between June and October 1991.⁽¹⁰⁴⁾ However, the earliest any of the republics became United Nations members was May 22, 1992.⁽¹⁰⁵⁾ The ICRC might argue that once the republics declared their independence, they no longer possessed United Nations membership. Therefore, the Charter cannot trump these headquarters agreements granting ICRC immunity for those times when the republics were not United Nations members. However, a strong counter argument can be made by applying the United States position on treaty succession.

According to this position new states are presumptively bound by the treaty obligations of the former state unless a result which is inconsistent with the object and purpose of the treaty occurs.⁽¹⁰⁶⁾ Therefore, to be consistent with the humanitarian objective and the purpose of the United Nations Charter, all the republics must have been bound to the United Nations membership of the Socialist Federal Republic of Yugoslavia until the republics obtained new membership.⁽¹⁰⁷⁾ Thus, no time existed when the republics were not bound to the United Nations Charter. Therefore, one or all of the republics were continuing the United Nations membership of the Socialist Federal Republic of Yugoslavia until the republics became new United Nations members. Further, Serbia-Montenegro has consistently held that it is the successor to the United Nations membership of the Federal Socialist Republic of Yugoslavia.⁽¹⁰⁸⁾ It is consistent that Serbia-Montengro is a new state, thus bound to the Geneva Conventions, yet also is continuing the United Nations membership of the Socialist Federal Republic of Yugoslavia. The Committee of Legal Advisors for the Council of Europe stated that "in cases such as human rights . . . every successor should be bound by the treaty obligations of the predecessor."⁽¹⁰⁹⁾ The ICRC might address this argument by showing that "it has long been recognized that the issue of succession to international organization membership is different from that of succession to treaty rights and obligations, even though such membership is often derived from the terms of a multilateral agreement."⁽¹¹⁰⁾ Also, the ICRC might argue that not all of the republics could continue the one United Nations membership of the Federal Socialist Republic of Yugoslavia.⁽¹¹¹⁾ In the alternative, the ICRC might argue two theories of treaty succession, the Vienna Convention and the Restatement position on succession of treaties.

Pursuant to the Vienna Convention on the Succession of States in Respect of Treaties of 1978, new states are not bound by the treaty obligations entered into by the former state.⁽¹¹²⁾ Treaty obligations of a new state are dependent upon the new state's classification as either a "newly independent state" or a "break-away state."⁽¹¹³⁾ If the new state is classified as a "newly independent state," then the new state is not bound by the treaty obligations of the former state.⁽¹¹⁴⁾ Conversely, if the new state is classified as a "break-away state," then the new state is bound by the treaty obligations of the former state.⁽¹¹⁵⁾ The ICRC might argue that Serbia-Montenegro is a newly independent state, not break-away state from the Socialist Federal Republic of Yugoslavia. The ICRC might further argue that the international community's viewpoint is that Serbia-Montenegro is a newly independent state since this republic is required to apply for new membership in the United Nations, instead of continuing the membership of the Socialist Federal Republic of Yugoslavia. Thus, until Serbia-Montenegro becomes a United Nations member, it is not bound to the Charter. The ICRC might also argue the Restatement position.

Under the Restatement Third of Foreign Relations Law of the United States (hereafter "Restatement") no such categories exist.⁽¹¹⁶⁾ The Restatement provides that all new states are not bound by the treaty obligations of the former state.⁽¹¹⁷⁾ Therefore, if the republics are considered new states, they are not bound to the treaty obligations of Yugoslavia, the former state. However, the Restatement is not widely followed.⁽¹¹⁸⁾

In sum, if the ICRC is called upon to provide the International Tribunal with information, the ICRC should do so regardless of any agreements providing immunity given the ICRC's mandate and statement expressing cooperation with the United Nations and conformity with the United Nations Charter.⁽¹¹⁹⁾ Also, the spirit of International Tribunal resolutions and current United Nations membership require that the republics not honor any headquarters agreements with the ICRC providing immunity. Without any headquarters agreements, the ICRC possesses no immunity. If the republics did not honor these headquarters agreements, the ICRC might sue the republics for specific performance.

E. Compromise

Finally, the ICRC might argue that pursuant to Resolution 771, paragraph 5, it is "inappropriate" for it to be called upon to provide information given its required confidentiality and immunity. The ICRC might further argue that the Security Council anticipated international humanitarian organizations such as the ICRC by including the words, "as appropriate" in Resolution 771. However, it is doubtful that the ICRC would argue that it is not "a party or other concerned in the former Yugoslavia." The ICRC's required confidentiality and immunity may not be an issue since The Rules of Procedure of the Yugoslavia Tribunal in Rule 70, Matters not Subject to Disclosure, states,

If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the persons or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused.⁽¹²⁰⁾

It is unfair that if the ICRC is required to provide evidentiary material to the Tribunal the Prosecutor could only use this material to generate new evidence (which may be extremely difficult and even impossible to find), and not be able to use ICRC's materials directly. However, this suits the previously discussed ICRC requirements to participate in a legal proceeding.⁽¹²¹⁾ Since this compromise addresses all the parties' concerns it appears to be the best means for victims to obtain information possessed only by the ICRC.

F. The ICRC Is Not Requested To Provide The International Tribunal With Information

If the International Tribunal takes the position that it is beyond its mandate to order the ICRC to provide victims with information concerning violations of humanitarian law, Resolutions 771 and 827 still call upon the ICRC to provide such information to the Security Council.⁽¹²²⁾ Both Resolutions 771 and 827 contain language that request organizations such as the ICRC to provide information concerning violations of humanitarian law.⁽¹²³⁾ Resolution 827 in paragraph 5, "[u]rges . . . non-governmental organizations to contribute . . . services to the International Tribunal, including the offer of expert personnel."⁽¹²⁴⁾ Further, since the ICRC's purpose is to promote humanitarian law, and since the ICRC is not affiliated with any government, as illustrated by its neutrality, the ICRC is a non-governmental organization.⁽¹²⁵⁾ Also, it is arguable that the Security Council request for services and expert personnel inherently include the giving of information. Thus far, the Security Council has not passed any resolutions contrary to Resolutions 771 and 827. Therefore, it appears that these resolutions still reflect the will of the Security Council. Finally, the ICRC own writings call for providing information. The ICRC has stated its cooperation with the United Nations and ICRC conformity with the United Nations Charter. However, the ICRC may provide two counter arguments.

First, the ICRC might argue that Resolution 771 states that "as appropriate" international humanitarian organizations are called upon to provide the Security Council with information concerning violations of humanitarian law occurring in the former Yugoslavia.⁽¹²⁶⁾ The ICRC might argue that given how the ICRC has chosen to fulfill its mandate, by remaining neutral through assuring all relevant parties' confidentiality, it is inappropriate for the Security Council to request information from the ICRC.⁽¹²⁷⁾ The ICRC might argue that by requesting information from the ICRC the Security Council would be undermining the entire structure from which the ICRC has long operated. The ICRC might further argue that the Security Council anticipated such international humanitarian organizations as the ICRC by including the words, "as appropriate" in Resolution 771. Also, the ICRC might argue that Resolution 827 does not state that non-governmental organizations must, but are urged to provide services and expert personnel.⁽¹²⁸⁾ Again, the ICRC might argue that the Security Council anticipated international humanitarian organizations such as the ICRC. Second, the ICRC might argue that it is not obligated to comply with United Nations resolutions. Although the ICRC possesses United Nations observer status, the granting of this status is not conditional upon the ICRC complying with United Nations resolutions.⁽¹²⁹⁾

IV. CONCLUSION

Victims of human atrocities in the former Yugoslavia demand justice. The legal system can provide that justice in the form of compensation. The ICRC can provide the means to that compensation by providing information documenting human atrocities that only the ICRC possesses. The ICRC's mandate holds "[t]he interests of the victims . . . [as the] paramount consideration."⁽¹³⁰⁾ To be true to this mandate the ICRC must not abandon in the courtroom the victims it aids on the battlefield.

END NOTES

1. Chris Hedges, Conflict in the Balkans: The Overview; Serbs Start Moving Muslims Out of Captured Territory, N.Y.T., July 12, 1995, at A1.

2. Id.

3. U.N. SCOR, session #, 3199th mtg., at 1, U.N. Doc. S/RES/819 (1993).

4. Id.

5. Hedges, supra note 1 (discussing, on May 6, 1993, the Security Council adopted Resolution 824 which designated Sarajevo, Tuzla, Zepa, Gorazde, and Bihac as "safe areas.").

6. Hedges, supra note 1.

7. U.N. SCOR, session #, 3228th mtg., at 1, U.N. Doc. S/RES/836 (1993).

8. Hedges, supra note 1.

9. Hedges, supra note 1. John Omicinski, Serbs Responsible for Most Ethnic Cleansing in Bosnia, CIA says, GANNETT NEWS SERVICE, August 9, 1995, available in LEXIS, NEWS Library, CURNWS File (discussing, the term "ethnic cleansing" coined by the Bosnian Serbians to describe their policy to create an ethnically pure Greater Serbia. Deputy CIA (Central Intelligence Agency) Director James Gannon and Cherif Bassiouni, a

DePaul University Law School professor and former chief investigator for a United Nations commission of experts that investigated war crimes, and who complied a six volume report on Serbian war crimes. Both testified at a joint session of the Senate Foreign Relations and Intelligence committees. Gannon described "ethnic cleansing" as including killing, rape, torture, displacement, and destruction. Bassiouni explained that Serbian policies were designed to "cause a complete disintegration of society by shaming, embarrassing and humiliating women."). Amy Lou King, Note, Bosnia-Herzegovina-Vance Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA.. J. INT'L & COMP. L. 347, n. 4 (1993) (citing World News Tonight With Peter Jennings (ABC television broadcast, Oct. 22, 1992) (report by Diane Sawyer)) (discussing, Mohamed Sacirbey, Bosnian Ambassador to the United Nations who has stated "one needs to realize that what we see happening here [in the former Yugoslavia] is no different than what we saw 50 years ago when Jews and others were massacred.").

10. Hedges, supra note 1. Chris Simon, Bosnian Serbs Claim Zepa Has Fallen, UNITED PRESS INTERNATIONAL, July 19, 1995, at International (discussing, Bosnian Serbian forces who claimed this allowed these men to be questioned for war crimes against Serbians). Tom Stoddart, Words and Pictures Tom Stoddart, THE INDEPENDENT, August 13, 1995, at 4. Jeane Kirkpatrick, A Matter of Principle at the U.N., THE WASHINGTON POST, August 18, 1995, at A25 (discussing, that it appears the actual fate of the men of military age, totaling 7,000, was immediate massacre).

11. Hedges, supra note 1.

12. Chris Simon, Bosnian Serbs Claim Zepa Has Fallen, UNITED PRESS INTERNATIONAL, July 19, 1995, at International.

13. Chris Simon, Frightened Zepa Waits for Attack, UNITED PRESS INTERNATIONAL, July 17, 1995, at International. Ian Traynor, Third Time Unlucky for Unsafe Area; Ian Traynor Traces the Tortuous Antecedents to the Defiant Serbian Conquest of Srebrencia, THE GUARDIAN, July 13, 1995, at 11.

14. Michael Montgomery, Belgrade Rounds On Its Former Serb Allies, THE DAILY TELEGRAPH, August 20, 1994, at 13 (discussing, five other places "ethnically cleansed" and controlled by Bosnian Serbian forces. First, Gorazde (Spring, 1994)); Ian Traynor, Julian Borger, & John Palmer, All Safe Havens Under Attack, THE GUARDIAN, July 20, 1995, at 10 (discussing, second, Bihac (July, 1995)); Wednesday Highlights, FEDERAL NEWS SERVICE, July 18, 1995, at United Nations Package (discussing, third, Potocari (July, 1995)); Ian Traynor, Julian Borger, & John Palmer, All Safe Havens Under Attack, THE GUARDIAN, July 20, 1995, at 10 (discussing, forth, Tuzla (July, 1995)); Chris Simon, Bosnian Serbs Claim Zepa Has Fallen, UNITED PRESS INTERNATIONAL, July 19, 1995, at International (and discussing, fifth, Zepa (July, 1995)). U.N. SCOR, session #, __th mtg. at 1, U.N. Doc. S/RES/824 (1993) (stating, Resolution 824 passed by the United Nations Security Council on May 6, 1993 declared Sarajevo, Srebrencia, Tuzla, Zepa, Gorazde, and Bihac as "safe areas").

15. Michael E. Ruane, Bosnian Crisis Weighing on U.S. Conscience, THE TIMES-PICAYUNE, July 30, 1995, at A4.

16. Greg Beaubien, Witnesses to War; Testimony of Bosnian Victims Rattles Observers from Chicago, CHICAGO TRIBUNE, March 22, 1995, at 1.

17. Id.

18. Jeane Kirkpatrick, A Matter of Principle at the U.N., THE WASHINGTON POST, August 18, 1995, at A25.

19. John Omicinski, Serbs Responsible for Most Ethnic Cleansing in Bosnia, CIA says, GANNETT NEWS SERVICE, August 9, 1995, available in LEXIS, NEWS Library, CURNWS File.

20. See infra notes 65-67, 69, 70-74 and accompanying text.

21. Amy Lou King, Bosnia-Herzegovina-Vance-Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA. J. INT'L & COMP. L. 347, n. 8 (1993) (citing Jelana Pejic, Yugoslavia: Time is Running Out, Inter Press Service, June 25, 1991, available in LEXIS, Nexis Library, Curnt File).

22. Id.

23. Amy Lou King, Bosnia-Herzegovina-Vance-Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA. J. INT'L & COMP. L. 347, n. 7 (1993) (citing 1991 U.N.Y.B. 314, U.N. Sales No. E.92I.1) (discussing, on June 25, 1991 Slovenia, by referendum declared its independence. On June 26, 1991 Croatia, by referendum, declared its independence. On September 8, 1991 Macedonia, by referendum, declared its independence. Finally, on October 15, 1991, Bosnia-Herzegovina, by assembly vote, declared its independence).

24. Amy Lou King, Bosnia-Herzegovina-Vance-Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA. J. INT'L & COMP. L. 347, n. 7 (1993) (citing 1991 U.N.Y.B. 314, U.N. Sales No. E.92I.1).

25. See generally United Nations efforts in the Former Yugoslavia.

26. E.g., former United States President Jimmy Carter's attempts to negotiate peace.

27. WBZ-TV 4, Evening News (Boston, CBS television broadcast, Nov. 21, 1995).

28. Id.

29. Id.

30. E.g., Security Council Resolutions 808 and 827 are United Nations Charter, Chapter VII resolutions, and therefore under Article 41 of the Charter are binding upon members.

31. U.N. SCOR, session #, 3217th mtg., at 1, U.N. Doc. S/RES/827 (1993). Barry E. Carter and Phillip R. Trimble, INTERNATIONAL LAW §8.B.1 (1991) (discussing, international humanitarian law or international human rights law "consists of the body of international rules, procedures, and institutions developed to implement [the] concept and to promote respect for human rights in all countries on a world wide basis." The international human rights concept is that "every nation has an obligation to respect the human rights of its citizens, and that other nations and the international community have a right, and responsibility, to protest if this obligation is not lived up to."). COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 xxvii (Yves Sandos et al eds., Martinus Nijhoff 1987). Action By The International Committee Of The Red Cross In The Event Of Breaches Of International Humanitarian Law, INTERNATIONAL REVIEW OF THE RED CROSS 1, (March-April, 1981) (discussing, the ICRC's definition of international humanitarian law which is similar:

international rules, established by treaties or customs, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or may be, affected by conflict. The expression "international humanitarian law applicable in armed conflict" is often abbreviated to "international humanitarian law" or "humanitarian law.").

32. U.N. SCOR, session #, 3217th mtg., at 1, U.N. Doc S/RES/827 (1993).

33. U.N. SCOR, session #, 3106th mtg., at 1, U.N. Doc. S/RES/771 (1992).

34. Id.

35. Id.

36. Id.

37. Id.

38. E.g., this article will only consider the ICRC. Numerous other organizations that aid conflict victims and/or investigate breaches in humanitarian law are not discussed. These organizations, to name only a few, include Amnesty International, CARE (formerly Cooperative for American Remittances Everywhere, Cooperative for American Remittances to Europe), Child Watch, Doctors Without Borders, Human Rights Advocates International (HRAI), Human Rights Information and Documentation Systems International (HURIDOCS), International League for Human Rights (ILHR), and United Nations Center for Human Rights (UNCHR). Andre Pasquier, Assistance et protection: La philosophie de la Croix-Rouge, in Assisting the Victims of Armed Conflict and Other Disasters 37, 38 (Frits Kalshoven 1st ed., 1989) (discussing, The International Red Cross founded by Henry Durant on June 24, 1959). COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 xxviii (Yves Sandos et al eds., Martinus Nijhoff 1987) (discussing, on November 8, 1986, The International Red Cross changed its name to the International Red Cross and Red Crescent Movement). STATUTES AND RULES OF PROCEDURE OF THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT, §1, art. 1, P1, and §II, art. 6, P1 (October 1986) (discussing, other components of The International Red Cross and Red Crescent Movement which include the National Red Cross and Red Crescent Societies, and The League of the Red Cross and Red Crescent Societies (consisting of the international Federation of the National Red Cross and Red Crescent Societies). COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 xxviii (Yves Sandos et al eds., Martinus Nijhoff 1987) (discussing, The League of the Red Cross and Red Crescent Societies was formerly known as the League of Red Cross Societies). Maria Teresa Dutli & Christina Pellandini, The International Committee of the Red Cross and the Implementation of a System to Repress Breaches of International Humanitarian Law, 300 INTERNATIONAL REVIEW OF THE RED CROSS 240, 246-247 (1994) (discussing, that these components assist armed forces care for the wounded and for war victims, as well as provide other humanitarian services). See also United Nations Security Council, Some Preliminary Remarks By The International Committee Of The Red Cross On The

Setting-Up Of An International Tribunal For The Prosecution Of Persons Responsible For Serious Violations Of International Humanitarian Law Committed On Territory Of The Former Yugoslavia, U.N. SCOR, session #, __ mtg., at 1, U.N. Doc. DDM/JUR/422b (1993).

39. STATUTES AND RULES OF PROCEDURE OF THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT, §II, art. 5, P2(c) (October, 1986).

40. Maria Teresa Dutli & Christina Pellandini, The International Committee of the Red Cross and the Implementation of a System to Repress Breaches of International Humanitarian Law, 300 INTERNATIONAL REVIEW OF THE RED CROSS 240, 247 (1994).

41. United Nations Security Council, Some Preliminary Remarks By The International Committee Of The Red Cross On The Setting-Up Of An International Tribunal For The Prosecution Of Persons Responsible For Serious Violations Of International Humanitarian Law Committed On Territory Of The Former Yugoslavia, U.N. SCOR, session #, __ mtg., at 1, U.N. Doc. DDM/JUR/422b (1993). See infra note 97.

42. United Nations Security Council, Some Preliminary Remarks By The International Committee Of The Red Cross On The Setting-Up Of An International Tribunal For The Prosecution Of Persons Responsible For Serious Violations Of International Humanitarian Law Committed On Territory Of The Former Yugoslavia, U.N. SCOR, session #, __ mtg., at 1, U.N. Doc. DDM/JUR/422b (1993).

43. STATUTES AND RULES OF PROCEDURE OF THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT, preamble.

44. STATUTES AND RULES OF PROCEDURE OF THE INTERNATIONAL RED CROSS AND RED CRESCENT MOVEMENT, section II, art. 5, P2(d). Jean-Luc Blondel, Assistance to Protected Persons, 260 INTERNATIONAL REVIEW OF THE RED CROSS , 451, 453-454 (1987).

impartiality (the absence of any discrimination in the distribution of aid, which goes to the victims of both camps), independence (of those who bring the aid) and neutrality (the aid goes only to the victims and cannot therefore affect the balance of power), voluntary

service (there is no selfish motive for the assistance).

45. United Nations Security Council, supra note 42.

46. Id. Jean-Luc Blondel, Assistance to Protected Persons, 260 INTERNATIONAL REVIEW OF THE RED CROSS, 447, 461(1987) (discussing, during international and non-international armed conflicts, the ICRC operates to allow conflict victims to lead a certain quality and dignity of life, and prevent physical or psychological attacks on conflict victims).

47. Action By The International Committee Of The Red Cross In The Event Of Breaches Of International Humanitarian Law, INTERNATIONAL REVIEW OF THE RED CROSS 1, 6-8 (March-April 1981).

48. Id. at 1-8. See, for a detailed discussion of these four procedures.

49. Supra note 47, at 2.

50. Supra note 47, at 1-8. Dutli & Pellandini, supra note 40, at 246.

51. Supra note 47, at 1-8. Dutli & Pellandini, supra note 40, at 246.

52. Action By The International Committee Of The Red Cross In The Event Of Breaches Of International Humanitarian Law, INTERNATIONAL REVIEW OF THE RED CROSS 1, 3 (March-April 1981) (discussing, that to make public statements, the ICRC requires three conditions occur: (1) the violations must be major breaches of international humanitarian law, (2) the public statements must be in the best interests of the actual or potential victims, (3) ICRC delegates must have first hand knowledge of the violations or the violations must be common knowledge).

53. Dutli & Pellandini, supra note 40, at 246.

54. Supra note 47, at 7.

55. Dutli & Pellandini, supra note 40, at 246.

56. Supra note 47, at 8.

57. Yves Sandos, COMITE INTERNATIONAL DE LA CROIX-ROUGE, A Consideration of the Implementation of International Humanitarian Law and the Role of the International Committee of the Red Cross in the Former Yugoslavia, (1993) at 3 (Geneva, September 28, 1993) (discussing, these public appeals which include three press releases: number 1673 made on July 2, 1991, number 1676 made on July 17, 1991, and number 1682 made on October 4, 1991).

58. Yves Sandos, COMITE INTERNATIONAL DE LA CROIX-ROUGE, A Consideration of the Implementation of International Humanitarian Law and the Role of the International Committee of the Red Cross in the Former Yugoslavia, at 3, (Geneva, September 28, 1993).

59. Id. at 17-18. Hedges, supra note 1.

60. Sandos, supra note 58, at 4-11.

61. Sandos, supra note 58, at 4-11 (discussing, ten agreements. The Commitment Made on November 5, 1991, The Agreement of November 6, 1991, The Memorandum of Understanding of November 27, 1991, The Addendum of May 23, 1992 to the Memorandum of November 27, 1991, The Agreement of August 7, 1992, The Agreement of May 22, 1992, The Agreement of May 23, 1992, The Agreement of June 6, 1992, and The Agreement of October 1, 1992. These various agreements included a reaffirmation by the Presidents of the six republics to respect international humanitarian law, especially the Geneva Conventions and the 1977 Additional Protocols; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons; freedom for the Red Cross, and particularly the ICRC, to operate in the republics; and creating a commission to trace missing persons and delineate protective zones).

62. Amy Lou King, Bosnia-Herzegovina-Vance Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA.. J. INT'L & COMP. L. 347, n. 4 (1993) (citing World News Tonight With Peter Jennings (ABC television broadcast, Oct. 22, 1992) (report by Diane Sawyer)).

63. Sandos, supra note 58, at 15.

64. Dutli & Pellandini, supra note 40, at 240. Committee On Foreign Affairs, Human Rights Documents, Compilation of Documents Pertaining to Human Rights, vii-viii, (September 1983) [and] International Committee of the Red Cross, Final Declaration of the Conference-Report On The Protection Of War Victims, 377, 396 (September-October 1993) (listing, other important international humanitarian law instruments including The Convention on the Non-Applicability of Statutory Limitations to War Crimes, The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, of 10 October 1980, The Hague Conventions of 1899 and 1907 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, The United Nations Human Rights Instruments, as well as other regional human rights instruments).

65. Convention (II) For The Amelioration Of The Condition Of Wounded, Sick And Shipwrecked Members Of Armed Forces At Sea-Signed At Geneva, 12 August 1949, art. 126, 6 U.S.T. 3114, (photo. reprinted in Committee On Foreign Affairs, Human Rights Documents, Compilation of Documents Pertaining to Human Rights, vii-viii, (September 1983) [and] International Committee of the Red Cross, Final Declaration of the Conference-Report On The Protection Of War Victims, 377, 396 (September-October 1993)). See infra note 97.

66. Id.

67. Dutli & Pellandini, supra note 40, at 251. Telephone Interview with Bruno Zimmerman, Deputy Head of the ICRC Delegation to the United Nations, ICRC (April 20, 1995) (discussing, conversation with Mr. Bruno Zimmerman, Deputy Head of the ICRC Delegation to the United Nations, who stated that ICRC immunity is derived from "implied privileges," or other agreements (express or implied) between the parties concerned. But, if deemed necessary the ICRC may operate without any type of expressed or implied agreement granting immunity).

68. Dutli & Pellandini, supra note 40, at 251.

69. Dutli & Pellandini, supra note 40, at 252.

70. U.N. GAOR, session #, 31st plen. mtg., at 1, U.N. Doc. A/RES/45/6 (1990). Telephone interview with Bruno Zimmerman, Deputy Head of the ICRC Delegation to the United Nations, ICRC (April 20, 1995) (discussing, confirmation by Mr. Bruno Zimmerman, Deputy head of the ICRC Delegation to the United Nations that United Nations observer status does not expressly grant the ICRC any immunity).

71. Dutli & Pellandini, supra note 40, at 252.

72. Dutli & Pellandini, supra note 40, at 252.

73. Agreement Between the ICRC and the Federal Republic of Yugoslavia, STATUTES OF MEMBERS OF THE DELEGATION, art. 10, (fax from Michael Chavanne, Member of Legal Division of the International Committee of the Red Cross, April 25, 1995). Agreement Between the ICRC and the Federal Republic of Yugoslavia (fax from Jacques Grossrieder, Member of Legal Division of the International Committee of the Red Cross, October 27, 1995) (discussing, that the ICRC has also entered into a similar headquarters agreement with Croatia on April 20, 1992). Telephone interview with Jacques Grossrieder, Member of the Legal Division, ICRC (October

24, 1995) (discussing, that the ICRC operates pursuant to an exchange of letters, oral headquarters agreements, or tacit headquarters agreements in the other republics. The terms of ICRC immunity in these headquarters agreements is the same as under the written headquarters agreements. However, due to confidentiality the ICRC has not provided details of these headquarters agreements).

74. Agreement Between the ICRC and the Federal Republic of Yugoslavia, STATUTES OF MEMBERS OF THE DELEGATION, art. 10, (fax from Michael Chavanne, Member of Legal Division of the International Committee of the Red Cross, April 25, 1995).

75. Telephone Interview with Bruno Zimmerman, Deputy Head of the ICRC Delegation to the United Nations, ICRC (April 20, 1995).

76. Due to ICRC confidentiality this article must presume that all ICRC headquarters agreements are binding upon all parties concerned. Strangely enough despite all the instruments the ICRC list as conveying it immunity, the ICRC provides no clear definition of its immunity.

77. This article will analyze only situation where victims of "ethnic cleansing" bring suit in the former Yugoslavia, and only the ICRC possess relevant information relevant to victim claims.

78. Dutli & Pellandini, supra note 40, at 243.

79. Amy Lou King, Bosnia-Herzegovina-Vance-Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA. J. INT'L & COMP. L. 347, n. 11 (1993) (citing Marc Weller, International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 A.J.I.L. 569 (1992)) (discussing, Bosnia-Herzegovina with a population of 4.1 million, contains the largest concentration of Muslims (40%) of the former Yugoslavia). Amy Lou King, Note, Bosnia-Herzegovina-Vance Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA.. J. INT'L & COMP. L. 347, n. 4 (1993) (citing World News Tonight With Peter Jennings (ABC television broadcast, Oct. 22, 1992) (report by Diane Sawyer)) (discussing, reports that estimate in excess of 20,000 Muslim women have been raped, as well as Muslims beaten in detention camps, and intentionally starved and tortured).

80. Ton J.M. Zuijdwijk, PETITIONING THE UNITED NATIONS A STUDY IN HUMAN RIGHTS (St. Martin's Press New York, 1982) (discussing, that it is unlikely individuals could petition the United Nations directly since their respective governments would protest such a bypass).

81. See infra notes 88-119 and accompanying text..

82. U.N. SCOR, session #, 3217th mtg., at 1, U.N. Doc. S/RES/827 (1993). Virginia Morris & Michael P. Scharf, 1 AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, 167, 269, 286, 288-289 (1st ed. 1995).

83. U.N. SCOR, session #, #th mtg., at 45, U.N. Doc. S/25704 (1995) Statutes of the International Tribunal, art. 24, P3 (photo. reprint January 31, 1995).

84. AMENDED RULES OF PROCEDURE OF THE YUGOSLAVIA TRIBUNAL, Part Six, §1, Rule 74 (photo. reprint February 1, 1995). See also Virginia Morris & Michael P. Scharf, 1 AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, 167, 269-270 (1st ed. 1995).

85. AMENDED RULES OF PROCEDURE OF THE YUGOSLAVIA TRIBUNAL, Part Six, §4, Rule 106 (B), (C) (photo. reprint February 1, 1995).

86. Virginia Morris & Michael P. Scharf, 1 AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, 288-289 (1st ed. 1995).

87. Id.

88. Supra note 33, at P4-5.

89. Supra note 33, at P5.

90. See infra notes 68-70 and accompanying text.

91. See infra note 70 and accompanying text.

92. United Nations Charter, 1945, ENCYCLOPEDIA OF THE UNITED NATIONS AND INTERNATIONAL AGREEMENTS, §U, at 950 (2d ed. 1990).

93. Case Concerning Military and Paramilitary Activities In And Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. P107 (Nov. 26) [and] Case Concerning Questions Of Interpretation And Application Of The 1971 Montreal Convention Arising From The Aerial Incident At Lockerbie (Libyan Arab Jamahiriya v. U.S.), 1992 I.C.J. 16 (Apr. 14).

94. Id.

95. COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 1031-1035 (Yves Sandos et al eds., Martinus Nijhoff 1987).

96. Supra note 33, at P5.

97. Convention (I) For The Amelioration Of The Condition Of The Wounded And Sick In The Armed Forces In The Field, August 12, 1949, T.S. 377 [and] Convention (II) For The Amelioration Of The Condition Of Wounded, Sick And Shipwrecked Members Of Armed Forces At Sea, August 12, 1949, T.S. 3363 [and] Convention (III) Relative To The Treatment Of Prisoners Of War, August 12, 1949, T.S. 3364 [and] Convention (IV) Relative To The Protection Of Civilian Persons In Time Of War, August 12, 1949, T.S. 3365 [and] Protocol Additional To The Geneva Conventions Of 12 August 1949, And Relating To The Protection Of Victims Of International Armed Conflicts, Dec. 12, 1977, T.S. 377A [and] Protocol Additional To The Geneva

Conventions Of 12 August 1949, And Relating To The Protection Of Victims Of Non-International Armed Conflicts, Dec. 12, 1977, T.S. 377A (discussing, The Socialist Federal Republic of Yugoslavia was a signatory of the 1949 Geneva Conventions and the 1977 Additional Protocols).

98. Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?, DENV. J. INT'L L & POL'Y, 1 at 17 (Fall 1994).

99. Oscar Schachter, State Succession: The Once And Future Law, 33 VA. J. INT'L L, 253 at 259 (1993).

100. Telephone Interview with United Nations Inquiry Staff Member, United Nations (April 21, 1995) (discussing, that Slovenia, Croatia, and Bosnia-Heregovina became United Nations members on May 22, 1992. Macedonia became a United Nations member on April 8, 1993). CHRONOLOGY AND FACTBOOK OF THE UNITED NATIONS 1941-1991, 232 (Kumiko Matsura et al. eds., 1992). Yugoslavia became a United Nations member on October 24, 1945.

101. Telephone Interview with United Nations Inquiry Staff Member, United Nations (April 21, 1995).

102. U.N. SCOR, session #, 3116th mtg., at 1, U.N. Doc. S/RES/777 (1992).

103. Id. at P1.

104. Amy Lou King, Bosnia-Herzegovina-Vance-Owen Agenda for a Peaceful Settlement: Did the U.N. Do Too Little, Too Late, To Support This Endeavor?, 23 GA. J. INT'L & COMP. L. 347, n. 7 (1993) (citing 1991 U.N.Y.B. 314, U.N. Sales No. E.92I.1) (discussing, that on June 25, 1991 Slovenia, by referendum declared its independence. On June 26, 1991 Croatia, by referendum, declared its independence. On September 8, 1991 Macedonia, by referendum, declared its independence. Finally, on October 15, 1991, Bosnia-Herzegovina, by assembly vote, declared its independence).

105. Supra note 100.

106. Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?, DENV. J. INT'L L & POL'Y, 1 at 22 (Fall 1994) [and] Williamson & Osborn, A U.S. Perspective On Treaty Succession And Related Issues In The Wake Of The Breakup Of The USSR and Yugoslavia, 33 VA. J. INT'L L., 261 at 270-273 (1993).

107. Supra note 92.

108. Supra note 102.

109. Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?, DENV. J. INT'L L & POL'Y, 1 at 17-18 (Fall 1994) (citing Committee of Legal Advisors on Public International Law for the Council of Europe, Extraordinary Meeting (Jan. 16, 1992)).

110. Williamson & Osborn, A U.S. Perspective On Treaty Succession And Related Issues In The Wake Of The Breakup Of The USSR and Yugoslavia, 33 VA. J. INT'L L., 261 at 267 (1993).

111. Oscar Schachter, The Development Of International Law Through The Legal Opinions Of The United Nations Secretariat, 25 BRIT. INT'L L. 91, 105 (1948).

112. Paul R. Williams, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?, DENV. J. INT'L L & POL'Y, 1 at n. 3 (Fall 1994) (citing Vienna Convention on State Succession in Respect to Treaties, contained in the Report of the International Law Commission to the General Assembly on the Work of its 20th Session, U.N. GAOR, 29th Sess., Supp. No. 10, at 4, U.N. Doc. A/9610/Rev.1 (1974), art. 2(d), at 1490).

113. Id.

114. Id.

115. Id.

116. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987).

117. Id.

118. Discussion with Professor Michael P. Scharf (at The New England School of Law, April 5, 1995).

119. Supra note 39-40, 95 and accompanying text.

120. Supra note 85, at Part Five, §3, Rule 70 (B).

121. Supra note 56 and accompanying text.

122. Supra note 33, at P5. Supra note 32, at P5.

123. Supra note 33, at P5.

124. Supra note 32, at P5.

125. Supra notes 42-46 and accompanying text.

126. Supra note 32, at P5.

127. Supra notes 42-46, 49-50 and accompanying text.

128. Supra note 32, at P5.

129. Supra note 32, at P5.

130. Supra note 40 at 247.

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