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The International Criminal Tribunal for the Former YugoslaviaAn Exercise in Law
Politics
and Diplomacy$

Rachel Kerr

Print publication date: 2004

Print ISBN-13: 9780199263059

Published to Oxford Scholarship Online: August 2004

DOI: 10.1093/0199263051.001.0001

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Cooperation and Judicial Assistance: The Tribunal's ‘Artificial Limbs’

Cooperation and Judicial Assistance: The Tribunal's ‘Artificial Limbs’

Chapter:
(p.115) 6 Cooperation and Judicial Assistance: The Tribunal's ‘Artificial Limbs’
Source:
The International Criminal Tribunal for the Former Yugoslavia
Author(s):

Rachel Kerr (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0199263051.003.0006

Abstract and Keywords

This chapter examines the balancing of diplomatic, political, and judicial roles in the operation of the International Criminal Tribunal for the Former Yugoslavia. It presents the legal framework for international cooperation and judicial assistance, and discusses the various levels at which cooperation occurs in practice. It argues that nature and extent of cooperation depends on political will. In its early years, the Tribunal had difficulty obtaining political, diplomatic, and logistic support from the very governments that voted for its establishment. The situation has improved over time, notably following the completion of a peace agreement for Bosnia.

Keywords:   International Criminal Tribunal for the Former Yugoslavia, international law, cooperation, judicial assistance

The particular status of the Tribunal as an ad hoc mechanism meant that it had to interact with the political context in which it operated in order to be able to function internally. Judge Cassese lamented in 1995 that the Tribunal is ‘like a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the state authorities; without their help the Tribunal cannot operate’.1 Unlike at Nuremberg, the Tribunal did not find its accused already in custody, nor did it have control over the territory in which the crimes were committed. Although it had an investigative and a prosecutorial arm to carry out investigations and litigation, it was lacking a police force to carry out arrests, and had to ask for outside assistance to provide security and logistical support for investigators, as well as provide access to evidence and witnesses. Financial, political, diplomatic, logistic, and military support was, therefore, a requirement for the Tribunal to be able to deliver justice; not only from the States in the region, but also from other States and international governmental and non‐governmental organizations.

Not only did the artificial limbs have to be put in place; they also needed to be operated. The need for State cooperation imposed an additional burden on the Prosecutor and President of the Tribunal to play a diplomatic and political role, as well as a judicial one.2 First, there was a concerted effort to enhance the public profile of the Tribunal, and to ensure that its voice was heard. This was crucial in the early years, evinced by a high level of activity during the tenure of Goldstone and Cassese, particularly at the time of the signing of the Dayton Accords, and early stages of implementation in 1995–6.3 Second, diplomatic relations were conducted by (p.116) the president with the UN and directly with governments in order to make administrative arrangements for the financing of the Tribunal, logistic support, such as the relocation of witnesses under the witness protection programme,4 and arrangements for enforcement of sentences,5 and, crucially, to report non‐compliance with orders of the Tribunal to the Security Council. Third, diplomatic activity was conducted behind the scenes between the Office of the Prosecutor (OTP) and governments and international organizations on a routine basis in order to secure cooperation. As the Tribunal began to function more effectively as a criminal court, toward the end of the Goldstone/Cassese era and during the tenure of Justice Arbour as Prosecutor, this area of activity was enhanced. Mechanisms for cooperation on this basis were agreed early on between States and international organizations and the Tribunal on matters such as the location of potential witnesses, the handover of material, and obtaining custody of accused.

This chapter examines the balancing of diplomatic, political, and judicial roles inherent in operation of the Tribunal's artificial limbs. A major aspect of this was obtaining custody of accused, which is examined in the following chapter; and the role and function of the prosecutor, which is the subject of Chapter 8. The present chapter sets out the legal framework for international cooperation and judicial assistance and examines the various levels at which cooperation occurs in practice: from public expressions of (p.117) support for the work of the Tribunal, and pressure exerted on the parties to the conflict to cooperate, to financial, logistic, and military support. The legal framework is important, but, in the end, as Lauterpacht argues, enforcement, ‘whether desirable, expedient and practical is a problem of politics rather than of law’.6

INTERNATIONAL LAW OBLIGATIONS: THE UN CHARTER AND ARTICLE 29

The obligation on States to cooperate with the Tribunal derived from the UN Charter. The powers and responsibilities of the Security Council were discussed in Chapter 2. It is worth reiterating the main points here, in as far as they relate to cooperation and judicial assistance. Article 25 of the UN Charter specifies that all Member and Non‐Member States are legally bound to carry out decisions of the Security Council under Chapter VII. This means that all States were obliged to cooperate with the Tribunal as a Chapter VII mechanism for the restoration and maintenance of international peace and security. Paragraph 4 of Resolution 827, creating the Tribunal: ‘Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present Resolution and the Statute of the International Tribunal […]‘.7

The Secretary‐General reiterated this obligation in the May 1993 report: ‘an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations’.8 The obligation was further reinforced in Article 29 of the Statute of the Tribunal, which provided that ‘States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber […].’9 In practice, the establishment of the tribunal on the basis of a Chapter VII decision meant that States were under a binding obligation to cooperate and assist with all stages of the proceedings: both to comply with requests for assistance with the gathering of evidence and locating and interviewing witnesses, suspects, and experts, and the service of documents; and to give effect to orders issued by the Trial Chambers, (p.118) such as warrants of arrest, search warrants, warrants for surrender or transfer of persons, and any other orders necessary for the conduct of the trial. Additional legal obligations are set out in relation to grave breaches of the 1949 Geneva Conventions and genocide. The Geneva Conventions impose a legal obligation on States Party to the Conventions to ‘enact any legislation necessary to provide effective penal sanction for persons committing or ordering to be committed, any of the grave breaches of the present Convention … search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, … hand such persons over for trial to another High Contracting Party’.10 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide provides in Article 1: ‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’

Resolution 827 set out the obligation on States to enact implementing legislation, if necessary, in order to facilitate cooperation with the Tribunal. The President of the Tribunal issued Tentative Guidelines for National Implementing Legislation of United Nations Security Council Resolution 827, of 25 May 1993 to UN Member States on 15 February 1994.11 A number of States have signed bilateral agreements with the Tribunal on various aspects of cooperation, including agreements to take on responsibility for imprisonment of convicted criminals, namely: Finland, Italy, the Netherlands, Norway, Spain, Sweden, Denmark, France, the Republic of Bosnia and Hercegovina, Iceland, Germany, Australia, New Zealand, Austria, Belgium, the Republic of Croatia, Hungary, Switzerland, the United Kingdom, the United States, Greece, Ireland, and Romania. The Netherlands, as host country, signed an agreement with the United Nations detailing the framework and practical arrangements for the seat of the Tribunal in The Hague. In contrast to normal interstate mechanisms for cooperation and judicial assistance, however, Article 29 did not create bilateral relations between the Tribunal and States. Nor did it rely on a consensual framework; it was coercive. The failure to enact implementing legislation was not a justifiable impediment to cooperation. In legal terms, the obligation set out in Article 29 of the Statute superseded any domestic provisions.

(p.119) The establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) imposed on States a derogation of sovereignty, in the same way as with other Chapter VII mechanisms such as the imposition of sanctions or the use of military force. The legal framework for this was the UN Charter. As discussed in Chapter 4, Security Council enforcement action under Chapter VII effectively ‘trumps’ sovereignty.12 The Trial Chamber in the Tadić case recognized this to be the express intention of the Security Council in creating the Tribunal as a Chapter VII enforcement measure.13 The Appeals Chamber ruling in the Blaskić case in connection with the challenge made by Croatia to its obligations to enforce orders of the Tribunal is also important in this regard.14 The judges distinguished the normal horizontal relationship represented by conventional mutual legal assistance arrangements that exist among sovereign states from the vertical relationship between the Tribunal and States.15 The obligation to cooperate was not reciprocal and was universally binding.

The legal framework for cooperation for all former Yugoslav Republics, and for the entities involved in the implementation of the Peace Agreement, was reinforced in the General Framework Agreement for Peace in Bosnia and Herzegovina (GFA), initialled at the Wright–Patterson Air Force base near Dayton, Ohio, on 21 November 1995, and signed in Paris on 15 December 1995.16 This was repeated at the London Peace Implementation Conference on 8–9 December 1995, and further reinforced in Security Council Resolution 1022, which provided for the reintroduction of sanctions against the Federal Republic of Yugoslavia (FRY) in the event of non‐compliance with the peace settlement.17 The Dayton Agreement also provided for the creation of a Human Rights Commission and an International Police Task Force (IPTF). Both of these bodies were required to furnish information to the Tribunal's investigators.

Following the signing of the GFA in Paris on 14 December 1995, the UN Security Council adopted Resolution 1031, on 15 December 1995, which (p.120) reaffirmed previous Resolutions concerning compliance with the Tribunal and restated the obligation on all states to cooperate fully. According to US Secretary of State Madeleine Albright: ‘The UN Security Council has made it clear that cooperation with the Tribunal will be considered an “essential” [sic.] part of implementing the agreement for purposes of deciding whether economic sanctions should be re‐imposed.’18 Resolution 1031 also authorized the establishment of the Implementation Force (IFOR) in order to fulfil the role specified in the Peace Agreement.19

Notwithstanding the legal obligations set out above, for the most part the ‘voluntary compliance’ model of enforcement of international law best describes the system of cooperation and judicial assistance operated by the ICTY. The prosecutor's submission in the subpoena hearing in the Blaškić case made the point that: ‘As a matter of policy and in order to foster good relations with States, … co‐operative processes should wherever possible be used, … resort to mandatory compliance powers expressly given by Article 29(2) should be reserved for cases in which they are really necessary.’20 The incentive for cooperation with the Tribunal was at least as much politically motivated as legally required. Even if the legal framework was one of coercion, the onus for dealing with day‐to‐day requests for assistance devolved to State authorities in practice and was carried out on the basis of voluntary compliance. It was only in the event that this model of voluntary compliance failed to yield any results that the matter was referred to the Security Council as a means of coercion.21

POLITICAL AND DIPLOMATIC SUPPORT

Two important elements of cooperation were public statements of support for the tribunal and the use of diplomatic and economic leverage to bring pressure to bear on recalcitrant governments in the former Yugoslavia to cooperate. These were deployed selectively, however; and (p.121) no concrete action was taken to enforce obligations in cases of non‐compliance, beyond verbal condemnation, until 1999, as discussed below.

As discussed in Chapter 3, until at least the end of 1994, following the appointment of Goldstone as Chief Prosecutor in August 1994 and the first indictment in November 1994, the Tribunal was in its initial process of establishment. Support in this phase was given, for the most part, in the form of financial contributions and donations of staff and equipment, the bulk of it from the United States, though not all. A number of other States contributed money, staff, and equipment, as discussed in the following. Diplomatic and political support was weak, which contributed to a lack of credibility for the Tribunal. The perception of ambivalence in the early days was exacerbated by the squabbling in the Security Council over the appointment of a prosecutor in 1993–4.22

More damaging still was the fact that far from being viewed as an instrument of peace, the Tribunal was viewed in some quarters as an obstacle to the peace process once it had issued indictments against Radovan Karadžić and Ratko Mladić in July 1995. There was some debate about the possibility of sacrificing the Tribunal in favour of a peace agreement; but this was not done. Holbrooke, in his memoirs, recalled that it was made clear to Milošević in the talks leading up to Dayton that there would be no compromise on the question of war criminals, particularly in relation to Karadzić and Mladić.23 Holbrooke demanded that John Shattuck, US Assistant Secretary of State for Democracy, Human Rights, and Labor, be granted access to visit alleged war crimes sites in the Bosnian Serb entity. Although not direct support to the Tribunal, this was intended as ‘a constant public reminder that even as we sought peace, we were not abandoning justice’.24

In the immediate phase of implementation, civilian aspects of the peace agreement were put on the back burner, and the Tribunal with them.25 The German Foreign Minister was one of the few politicians to express public support for the Tribunal. His visit to the Tribunal, at the end of October 1996, was the first visit by a minister for foreign affairs. He took the opportunity to issue a personal appeal to Presidents Milošević, Tudjman, and Krajišnik to hand over suspects, and backed calls for a more robust interpretation of Implementation Force's (IFOR's) mandate.26 The Tribunal (p.122) was excluded from full participation in the London Conference of the Peace Implementation Council in December 1996, although it was invited to send an observer.27 This was in stark contrast to the meeting of the PIC in Florence six months previously, on 13–14 June 1996, where the ICTY was invited as a full participant. In the event, largely due to the fact that it was the then prosecutor, Louise Arbour, who attended as the ICTY observer, the issue of war criminals was put on the agenda and Arbour was invited to address the conference. She did so in strong terms, stating that the question of cooperation was ‘not a matter of debate. This is the law!’28

Following the Conference, the British Foreign Secretary, Malcolm Rifkind, issued a telling statement warning indicted persons that they would be targeted.29 This statement was the beginning of a change in the fortunes of the Tribunal, and in the attitude of the international community. Evidence of this shift occurred dramatically in Summer 1997, when concrete enforcement action was taken to obtain custody of accused, as discussed in Chapter 7. In addition to concrete action, increased diplomatic pressure was exerted on the issue of war criminals. For example, on 6 June 1996, the President of the Tribunal Antonio Cassese called for the reimposition of sanctions against the Bosnian Serbs for their failure to hand Karadžić and Mladić over to the Tribunal. The High Representative, Carl Bildt, and the United States were opposed to this course of action.30

At its meeting in Sintra in May 1997, the Steering Board noted the proposal of the High Representative that people cooperating with or condoning the rule of indicted persons should be denied visas to travel abroad, and supported the High Representative's recommendation that the Security Council should deny new economic assistance to those municipalities which continue to tolerate indicted persons working in a public capacity in violation of the Dayton agreement.31 Hans van den Broek, EU External Relations Commissioner, told the international donors conference, held in July 1997, that ‘Humanitarian assistance will be continued, but the overall political and economic influence and power held by people indicted for war crimes is such that it would be irresponsible to continue spending public funds for reconstruction purposes.’ The (p.123) Bosnian Serbs were warned that vital funds for redevelopment would be withheld until indicted accused were transferred to The Hague.32

On assuming the Presidency of the EU on 1 July 1997, Luxembourg made cooperation with the Tribunal a basic condition for progress in the development of bilateral relations.33 This was important to Croatia, but it made very little impact on the FRY. Croatia had already been warned in May 1996 that in order to join the Council of Europe not only must it clean up its record on democracy and human rights, but also it must cooperate with the Tribunal.34 It was no coincidence that the first Bosnian Croat indictee to surrender voluntarily to the Tribunal, General Tihomir Blaškić, did so shortly afterwards, on 1 April 1996.35 A year later, Zlatko Aleksovski, who had been arrested in Croatia in June 1996, was handed over after the United States threatened to block international loans at the end of April 1997. In May 1997, Albright met with Croatia's Foreign Minister, Mate Granić, and asked for the surrender of a list of indicted accused.36 One of the men on the list, Dario Kordić, had been a leading figure in the Croat mob uprising in Jajce in August 1997. Holbrooke recalls how he told Tudjman in August 1997 that he must send Kordić to The Hague if he wanted to improve relations with the US government.37 Eight weeks later, on 6 October 1997, Kordić was one of the ten Bosnian Croats to ‘voluntarily’ surrender to The Hague.

By 1999 the situation had improved dramatically, and the international community gave considerable diplomatic and practical support to the Tribunal with regard to its investigations in Kosovo. This coincided with NATO's campaign of air strikes against the FRY, in March–June 1999, which led to allegations that the Tribunal was being manipulated by NATO to justify the bombing campaign, and was politicized as a result.38 Assistance was forthcoming on a number of fronts, including the provision of evidence, public statements of support, assistance with investigations, and a guarantee to Arbour that ICTY investigators would enter Kosovo alongside KFOR. The intention to deliver evidence to the Tribunal was announced in advance, leaving the OTP ‘tantalised and unsure if it would actually transpire’. Blewitt complained that ‘It is only helpful if they're prepared to back it up with the evidence they say they've got.’39 (p.124) Further evidence of the increased importance of the Tribunal in UK policy came with the appointment, in April 1999, of David Gowan to the newly created post of Kosovo War Crimes Coordinator.40

Even though the provision of evidence to the Tribunal by the United Kingdom and the United States in particular was a major contributing factor to the timing of the indictment of Milošević, in May 1999, the indictment was issued on the basis of the evidence, not as a result of political pressure exerted on the prosecutor. In any case, as discussed in Chapter 8, when it was issued, there was some ambivalence toward the indictment among NATO Member States. During and after the bombing campaign, conflicting signals were sent out by the international community. On the one hand, there was some speculation that US officials were making a deal with Milošević in order to facilitate his exit to a safe haven in Russia or Greece.41 On the other hand, the official UK line was that they remained committed to the goal of sending him to The Hague.42 This was also the policy stance taken by the European Union, and the UN Special Envoy, Jiri Dienstbier, who stated that the real question was whether ‘we are more interested in Milošević … or the future of ten million Serbs and probably the Balkans.’43 Sanctions were kept in place as long as Milošević remained in power and a visa ban was extended to pro‐Milošević officials, business partners, and cronies; but it fell short of making the arrest and transfer to The Hague of Milošević and his co‐accused a condition.44

In the immediate aftermath of Milošević's downfall in October 2000, Western leaders took a conciliatory tone, choosing not to force the issue in (p.125) such a fragile political environment, but there were some dissenters to this view. The Prosecutor, Carla Del Ponte, travelled to Belgrade to press the issue in January 2001; and momentum gradually built, which resulted in the transfer of Milošević to The Hague on 28 June 2001. Although the oil embargo and flight ban were lifted in October 2000, the United States and the United Kingdom were determined to retain key sanctions until Milošević was handed over. This policy was not shared by the whole of the European Union, however; Italy and Germany were alleged to be keen to lift sanctions, and even to grant immunity to Milošević.45 In February, the United States made the provision of an aid package worth $100 million conditional on concrete signs of cooperation and imposed a deadline of 31 March 2001. On 9 March 2001, the United States specified exact conditions, one of which was the arrest of Milošević, but they did not go as far as to make his transfer to The Hague a condition.46 Instead, aid was conditional on the transfer of an accused, it was not specified which one, to The Hague. Blagjoe Simic, a Bosnian Serb resident in Belgrade, duly voluntarily surrendered on 13 March 2001.47 In the end, the combination of withholding financial assistance and international ostracization, coupled with domestic political manoeuverings in the FRY and Serbia, led to Milošević's detention and transfer to The Hague. The day after Milošević was transferred, $1.3 billion worth of aid was pledged to the FRY.48

FINANCIAL CONTRIBUTIONS AND DONATIONS IN KIND

A number of States made contributions to the voluntary fund over and above normal UN contributions that they were obliged to pay (Table 6.1). The voluntary fund covered specific expenses, including the Rules of the Road project and the Outreach Programme. The European Union contributed £1.3 million to the voluntary fund in December 2000 for the Outreach Programme, the Library, and the Defence Counsel Training Programme.49 The United States pledged $500,000 to the Outreach (p.126)

Table 6.1 Contributions to the Voluntary Fund (in US$)

Austria

108,574

Belgium

74,892

Belgium

74,892

Cambodia

5,000

Canada

1,457,151

Chile

5,000

Cyprus

4,000

Denmark

263,715

EU/Carnegie Foundation

542,204

Finland

178,795

Germany

250,000

Hungary

2,000

Ireland

121,768

Israel

7,500

Italy

2,080,049

Liechtenstein

4,985

Luxembourg

194,163

Macarthur Foundation

200,000

Malaysia

2,500,000

Malta

1,500

Namibia

500

Netherlands

2,727,523

New Zealand

14,660

Norway

977,410

Pakistan

1,000,000

Portugal

10,000

Saudi Arabia

300,000

Slovenia

10,000

Spain

13,725

Sweden

461,626

Switzerland

674,516

UK

3,193,223

University of Utrecht

2,196

US

12,755,047

Source: Report of the International Tribunal, A/55/150 (2000), 7 August 2000.

Programme in April 1999, Norway contributed $32,000 in January 2001, the Netherlands, the United Kingdom, Finland, and Denmark also contributed, as did the John D. and Catherine T. Macarthur Foundation.50 The exhumations programme is also largely funded through voluntary (p.127) contributions from Austria, Canada, Malaysia, the Netherlands, Sweden, Switzerland, and the United States.51 In July 1997, the United Kingdom donated £330,000 for a new courtroom.52 A third courtroom was built thanks to donations from the Netherlands ($1.65 million), the United States ($1 million), and Canada ($200,000 Canadian).53

Donations in kind were also made with the provision of seconded personnel and equipment.54 For example, the United States and the United Kingdom donated thousands of dollars worth of computer equipment, and France donated courtroom video delay equipment. Initially, gratis personnel formed the backbone of Office of the Prosecutor (OTP) staff. In 1998, sixty‐four gratis personnel were assigned by Canada, Denmark, Finland, Italy, the Netherlands, Norway, Sweden, Switzerland, the United Kingdom, and the United States, and by the International Commission of Jurists and the Open Society Institute.55 The provision of gratis personnel was phased out in 1997, except that gratis personnel were allowed to be provided on an exceptional basis and, for six‐month periods, for the Kosovo investigations.56 Personnel were seconded to the Tribunal for this purpose by Iceland, Austria, France, Sweden, Canada, the United Kingdom, Switzerland, Denmark, and Belgium.57

(p.128) COOPERATION AND JUDICIAL ASSISTANCE WITH INVESTIGATIONS AND AT TRIAL

The OTP carried out most of the functions associated with a national police force: investigation and preparation of cases for trial. However, the Tribunal had no inherent power to compel compliance with subpoenas, to protect witnesses, or to execute arrest warrants. It had to rely on national police and other authorities to fulfil these roles. The Office also had to request help from national authorities to locate potential witnesses residing outside the former Yugoslavia as refugees.

Early on, the OTP set about building relationships with the relevant state authorities and establishing mechanisms for cooperation. On 11 April 1994, the Deputy Prosecutor, Graham Blewitt, wrote to all Member States requesting assistance with the identification and appointment of suitable candidates for investigative positions in the OTP, and requesting any evidence relating to the commission of war crimes.58 The Senior Legal Adviser to the prosecutor in the Secretariat, Gavin Ruxton, was responsible for establishing mechanisms for cooperation and judicial assistance with States and other international organizations. This was achieved through visits, making personal contacts, and ‘a great deal of trial and error’.59

Although there existed a binding obligation to comply with all requests originating from the Tribunal, as discussed above, in practice cooperation worked on the basis of voluntary compliance and was best achieved if it was tailored to the particular requirements of the State concerned. The procedures by which requests for assistance were issued, therefore, varied considerably from State to State, from the formal and bureaucratic to the very informal, relying on individual contacts. In some cases, all requests were directed to one central authority, such as the Ministry of Justice (Finland, France, Germany, Italy, Netherlands, Spain, Switzerland, and Turkey), the Attorney General's office (Norway), or the Ministry of Foreign Affairs (Sri Lanka, Sweden, and UK). In other cases, requests were directed via the Embassy in The Hague (US) or direct to the appropriate national authority.60

(p.129) For example, all requests to the United Kingdom for assistance were directed via the War Crimes Desk in the FCO, and passed from there to the appropriate authority.61 This procedure facilitated the identification of potential witnesses among UK military personnel and a number testified in cases before the Tribunal. This was not restricted to the military: in March 1998, the former Liberal Democrat leader Paddy Ashdown testified in the Blaškić case. Ashdown was the first Western politician to appear as a witness. His testimony concerned the infamous conversation he had had with Tudjman during a state supper at London's Guildhall on 16 May 1995, when Tudjman, in response to Ashdown's asking him what he thought the territory of the former Yugoslavia would look like in ten years’ time, drew a map which sliced Bosnia in two, divided between Serbia and Croatia. The map was admitted into evidence.62 The possibility of other senior government officials testifying in relation to the ongoing investigation against Tudjman was also discussed, but the initiative was rendered redundant by Tudjman's death in February 2000.

In contrast, serious problems were encountered with regard to some States. The French government, for example, was less than fully cooperative, both in terms of providing evidence and facilitating interviews with potential witnesses, and in terms of obtaining custody of accused. In December 1997, the French Minister of Defence, Alain Richard, criticized the Tribunal as providing ‘show justice’, and said that no French officials or military officers would testify. The French government insists that even willing witnesses can only be consulted through formal court proceedings. This procedure was not only costly, but also extremely time‐consuming.63

For the most part, however, the building of institutional relationships made cooperation a routine matter, so that instead of having to submit a request via the Secretariat, investigators initiated requests for assistance themselves.64 The experience of the ICTY, and the institutional relationships it built, will be a major contribution to future efforts to enforce international humanitarian law, in ad hoc tribunals or in the ICC, since the establishment of these relationships and a level of confidence at the (p.130) institutional level will facilitate future attempts to do the same. As time went by investigations became more sophisticated, and resembled more closely what one would expect to find in a national system. The execution of search warrants, in particular, provided access to documentation that the OTP did not expect to see, let alone obtain.65

Personal contacts were established early on with representatives of Croatia and the FRY and the authorities in the entities of Bosnia and Hercegovina. Meetings between the Prosecutor and Deputy Prosecutor and the Croatian Deputy Minister of Foreign Affairs, Ivan Simonivic, and Muhamed Sacirbey, formerly representative of Bosnia and Hercegovina to the United Nations and then Minister for Foreign Affairs, during their visit to the region in October 1994.66 Following talks between the Prosecutor and the Bosnian government on 5 and 6 October 1994, on 3 December 1994 a Memorandum of Understanding was signed between Ifran Ljubijankic, Minister of Foreign Affairs of the Republic of Bosnia and Hercegovina, and the prosecutor, which acknowledged the Bosnian government's commitment to cooperate fully with the Tribunal, and in particular to comply with requests from the prosecutor. The agreement provided specifically for the setting up of a field office in Sarajevo, the facilitation of on‐site investigations and seizure of evidence, assistance in locating and identifying potential witnesses, sending of Tribunal observers to trials being held in Bosnia, and the exchange of information of all kinds. Cooperation with the FRY, Croatia, and the Bosnian Serb and Bosnian Croat entities in Bosnia and Hercegovina was extremely difficult to achieve. The specific problems encountered in enforcing compliance with the Tribunal's orders are examined below.

A major obstacle to the willingness of States to provide information to the Tribunal was that, particularly with intelligence information, States have legitimate concerns about national security. Rule 70 was designed with exactly this dilemma in mind. As discussed in Chapter 5, Rule 70 provides for the submission of information to the Tribunal by States in confidence. The information can be used as a lead or pointer by the prosecutor, but is not to be disclosed in court. Notwithstanding this guarantee, the intelligence community and the military were extremely reluctant to hand over evidence to prosecutors in their own domestic legal system, so it was even more difficult for an international tribunal with international staff to convince them that it will not compromise national security.67 Essentially, the provision of information was on the basis of trust. During (p.131) the tenure of Louise Arbour, the OTP built a strong relationship of trust with agencies in the United Kingdom and the United States, because her guarantees of confidentiality were relied upon. The situation changed under the new prosecutor, because guarantees were no longer regarded as ironclad.68

Although the Tribunal had no inherent enforcement power, it had the power to issue binding orders to States for the production of documents or to call witnesses. There is a distinction between these and subpoena, which was set out by the Appeals Chamber in the Blaškić case. The prosecutor obtained a subpoena from Judge McDonald in January 1997 against the Government of Croatia and the Croatian Defence Minister, Gojko Sušak, for the production of information. At the same time, subpoenas were issued at the request of the Prosecutor to the Government of Bosnia and Hercegovina and its Defence Minister; and the Defence requested a subpoena compelling the Government of Bosnia and Hercegovina for the production of documents it believed to be exculpatory. The Government of Croatia challenged the legal authority of the Tribunal to issue subpoenas in general, and in particular to a State.69 The Appeals Chamber finding was that subpoenas cannot be issued to States, because the Tribunal possessed no inherent enforcement power, so the penalty attached to subpoenas would not be enforceable; and subpoenas could not be issued to state officials acting in their official capacity, because they enjoy ‘functional immunity’.70

It was unclear whether international organizations were to be treated in the same way as States for the purposes of cooperation. The ruling of the Appeals Chamber in the Blaškić case was that subpoenas could not be issued by the Tribunal because it had no inherent enforcement power, and that the sanctions attached were, therefore, meaningless. This should apply to all cases, since it was the nature of subpoenas, not the relationship of the Tribunal to States that was the obstacle. In denying subsequent requests for subpoenas, however, the judges have followed different reasoning, looking instead at the respective status of States versus international organizations, or the utility of the evidence sought. In a decision handed down on 1 July 1998, the Trial Chamber in the Kovačević case denied a Defence request for a subpoena to be issued to the UN Secretariat, and, in stating that the Defence should apply for a binding order should the material not be made available, implied that the UN (p.132) Secretariat should be treated in the same way as a State.71 In an earlier decision in the same case, however, the Trial chamber considered that the Tribunal had no authority to issue such subpoena to the OSCE, ‘it being an international organisation and not a State’.72 A Defence request for the issuing of subpoena was denied on the basis that it was not necessary, since information essentially the same as, or similar to, that sought … is already in the public domain and has been submitted to the International Tribunal in other matters.73 Similarly, the Trial Chamber denied a request for a subpoena filed by Delalić in the Čelebici case: ‘The Trial Chamber does not, and should not, do anything in vain … This application is made too late to be meaningful.’74

The Trial Chamber had the power under Rule 98 to order either party to produce additional evidence, or to summon proprio motu (on its own volition) witnesses and order their attendance. The Trial Chamber exercised this power in the Blaškić case by ordering the appearance of several witnesses, which it deemed ‘absolutely necessary’, ‘in order to ascertain the truth in respect to the crimes’.75 Protective measures were requested by the French government for General Morillon ‘in order to protect his own safety, and the safety of other French civilian and military personnel in the former Yugoslavia, and the essential security interests of France’. The Trial Chamber granted the request, but held that it was not obliged to do so, since only the judges may set limits to the obligations on States set down in Article 29, nor did the conditions laid down by the UN Secretary‐General in his authorization for the witness to testify.76 In addition, the judges held that neither Morillon nor the French or UN authorities could invoke Rule 70, since it was only applicable to information provided to the prosecutor, not to the judges. Morillon was allowed to testify in closed session and specify the topics that to be covered, and questions were (p.133) restricted to the content of Morillon's formal statement. Representatives of the French government and the UN Secretary‐General were allowed to be present, and to present any reasoned request necessary ‘for the protection of the higher interests they have been assigned to protect’.77

The 1997 Appeals Chamber ruling in the Blaškić case also found that a State could invoke a national security justification for withholding documents, but that there was no right to do so. The Appeals Chamber pointed out that the consequence of this finding was that implementing legislation passed by Australia and New Zealand, which authorizes national authorities to decline to comply with requests of the Tribunal if such requests prejudice the ‘sovereignty, security or national interests’ of the State, are not in keeping with the Statute.78 A high threshold was set by the court, that against the interests of international justice any competing interests must be of considerable weight, such as national security or the ability of peacekeepers, humanitarian agency workers, medical personnel, or diplomats to do their job. For humanitarian relief organizations there was an inherent conflict of interest between cooperation with the Tribunal in terms of providing information relating to violations and whereabouts of victims, witnesses, and accused, and the fulfilment of their own mandate. The provision of humanitarian assistance traditionally relies upon the consent of the State in which these activities are carried out and the establishment and building of trust and confidence. The dilemma was that cooperation with ICTY might compromise the work they were doing on the ground by jeopardizing this trust, and implicitly becoming a party by cooperating with the Tribunal, thereby exposing their personnel to reprisal attacks.

The Tribunal faced a unique dilemma in respect of the International Committee of the Red Cross (ICRC), because that body's strict neutrality and confidentiality is essential to its mission. According to Jean Pictet, ‘One cannot be at one and the same time the champion of justice and of charity. One must choose, and the ICRC has long since chosen to be a defender of charity.’79 The argument put forward by the ICRC was that involvement in war crimes prosecutions would interfere with its ability to carry out its mission, because it would compromise trust. In the Bosanski Šamać case, the Trial Chamber denied a motion to order a former ICRC (p.134) former employee to testify. In its decision of 27 July 1999, the Trial Chamber considered that the issue was not whether the ICTY has jurisdiction over the ICRC, and whether it has the power to compel the production of documents or witnesses, but whether the ICRC had a genuine confidentiality interest such that the testimony of a witness should not be admitted. It confirmed that the ICRC has a right under the Geneva Conventions and the Additional Protocols to insist upon non‐disclosure in judicial proceedings of information relating to the work of the ICRC in the possession of an ICRC employee considered that the ICRC also has a right under customary international law to non‐disclosure of certain information.80

The Defence challenged this ruling on the basis that is ‘illogical to hold a position that while states, even warring states, may be compelled to furnish evidence to this Tribunal, the ICRC may not be so compelled.’ In its decision of 7 June 2000, the Trial Chamber denied the motion, determining that it was no more than a ‘fishing expedition’.81 In this context then, the interests of the ICRC, and only the ICRC, are placed above those of national security, since the right to claim national security in order not to have to supply documents is subject to the discretion of the judges, according to the ruling in Blaškić, whereas the immunity accorded to the ICRC is absolute.82

SECURITY AND LOGISTICAL SUPPORT

Assistance with war crimes prosecution, in the form of logistical support, provision of security to investigators and exhumations sites, and obtaining custody of accused, were novel and additional tasks imposed on the military in the context of peacekeeping or peace enforcement missions. The last, obtaining custody, is examined in Chapter 6. This section sets out the legal framework for cooperation for international forces engaged in peacekeeping and peace enforcement missions under the auspices of the United Nations and NATO and highlights the inherent dilemmas and compatibilities that arose from the requirement to be at the same time the champions of peace and of justice.

(p.135) There was a degree of resistance to cooperation with the Tribunal on the basis that with respect to peacekeeping it compromised impartiality, and with respect to peace enforcement it compromised core military tasks, such as separation of forces and disarmament. An article in the New York Times on 25 April 1995 suggested that the United Nations was ‘torn between its blue helmets and its black robes’.83 On the other hand, it could be argued that assistance with war crimes investigations was a vital element of peace enforcement, since the mandate of the Tribunal was the same as that of the military in the context of the former Yugoslavia: the restoration and maintenance of international peace and security. Conceptually, the enforcement of international humanitarian law is the impartial application of the mandate, if it is applied to all sides equally. If peacekeepers assist with the prosecution and punishment of war crimes, it must be recognized as legitimate involvement. Greenwood points out that there is no reason why peacekeepers might not be given the mandate to assist in the prosecution and punishment of war crimes, but that, in the absence of such a mandate, while there exists a right to undertake such activities, there is no obligation.84

Ultimately, the interpretation of the mandate on the ground depended on the policy of an individual State, and the determination of the individual commander of whether it would compromise security and be a good use of limited resources. William Fenrick, Senior Legal Adviser in the OTP, recalled significantly different approaches taken by different force commanders operating under the same mandate in the former Yugoslavia during his term as a member of the UN Commission between 1992 and 1994.85 In the period prior to the establishment of the ICTY, the UN Protection Force (UNPROFOR) engaged in some recording, reporting, and protesting, and allegedly some inter‐positioning, but lacked a clear and consistent approach. For example, investigations were carried out by UNPROFOR into the incursion by Croatian forces into the Croatian Serb controlled Medak pocket in September 1993, and into an attack by Bosnian Croat forces on the village of Stupni Do on 23 October 1993, but no further investigations were mounted. Fenrick suggested that this might be because UNPROFOR were flooded with information and requests from all of the warring parties, and due to concern about the need to maintain strict impartiality.86

(p.136) After a peace agreement was concluded, it was possible to conduct on‐site investigations and exhumations, for which the OTP relied on the provision of security and assistance by NATO forces. The legal framework for NATO's cooperation with the Tribunal is contained in the General Framework Agreement (GFA) and Security Council Resolution 1031. Annex 1‐A of the GFA refers to the military aspects of the Agreement. While there is a clear obligation for Implementation Force (IFOR) to cooperate with the Tribunal, there is no specific guidance in the Peace Agreement or in Resolution 1031 of the ways in which this should be achieved. Under the terms of the Annex, the IFOR Commander had the authority to interpret the agreement on military implementation;87 and IFOR was reluctant to step outside a clearly specified military role. There was widespread concern among the military, particularly in the United States, that taking on any other ‘non‐military’ tasks, such as providing security for investigators and guarding exhumation sites, would both antagonize Bosnian Serbs and lead IFOR down a ‘slippery slope’, which would prolong military engagement.88

In January 1996, NATO stated that they simply did not have enough forces to provide security for exhumation sites. The focus was on key military tasks in the early phase of deployment to ensure freedom of movement.89 These key tasks included the cessation of hostilities, the withdrawal of forces and redeployment of heavy weapons, the establishment of a four kilometre wide zone of separation, and enforcing restrictions on placing new minefields and obstacles. Even where IFOR was willing and able to provide support, the main obstacle to establishing a working relationship was that it was not simply a case of asking for support for specific tasks to be carried out by investigators. The methods of working of the OTP and the military were vastly different, and the military were exasperated by the vagueness of the requests for assistance. According to an IFOR commander, ‘They were very difficult to work with, because they were not well coordinated in their efforts. They did not know exactly where they wanted to go, they wanted to kind of explore. […] [W]e don't operate on an ad hoc basis, … we needed about 24 hours to brief our soldiers and make a reconnaissance, organize the security, and … coordinate with the local police authorities.’90

(p.137) In spite of all this, and in spite of vehement public criticism levelled at NATO by the Prosecutor and President of the Tribunal, a working relationship was established. In January 1996, the Prosecutor, the Deputy Prosecutor, and President met with Admiral Leighton Smith to discuss the provision of security for investigation teams working in Bosnia, other logistic support such as clearing mines from exhumation sites, and the detention and transfer of indictees. In May 1996 a Memorandum of Understanding was agreed between the Prosecutor of the Tribunal and the NATO Supreme Allied Commander for Europe (SACEUR), which set out arrangements to provide local area security and logistical support to the prosecutor's staff.

However, IFOR refused to clear land mines on the exhumation sites in Srebrenica in April 1996 and in Cerska in July 1996. Instead, it was done with the assistance of a private humanitarian minesweeping organization and sniffer dogs from Norwegian People's Aid. When IFOR eventually agreed to provide security for sites, it was only during the daytime, while investigators were on‐site. In August 1996, UNTAES swept the grave at Ovcara for mines, but in the process destroyed the gravesite with the use of heavy equipment.91 Communications improved as time went on and mutual trust and confidence was built through constant interaction on the ground. The increase in credibility of the Tribunal by 1996–97 impacted on NATO's conception of its dealings with OTP. Investigators, in turn, got used to dealing with different layers of military from SHAPE HQ to the local commander on ground. Eventually, the OTP established formal channels of communication with NATO and an SFOR liaison officer.92

The introduction of SFOR coincided with an increase in the level of support given to the ICTY; the reasons for this are examined in detail in Chapter 7. This was not only with regard to the detention of indictees, but also involved the provision of security and logistical support to investigative teams and surveillance and ground patrolling of alleged mass grave sites. SFOR also provided assistance with the execution of search warrants in Bosnia.93 In Kosovo, cooperation with United Nations Mission in Kosovo (UNMIK) was ‘unprecedented’. The formal basis for cooperation was Security Council Resolution 1244 of 10 June 1999, which specifically demands full cooperation by all concerned, including UNMIK.94

(p.138) THE FAILURE OF COOPERATION AND ENFORCEMENT MECHANISMS

Although ‘voluntary compliance’ works to some extent with the willing, as seen already, it can be circumscribed by various considerations. What of the unwilling? There was a need to innovate new means of effecting ‘involuntary compliance’ where cooperation is not forthcoming. Ultimately, the Tribunal did not have the power or capability to enforce compliance. It could not, therefore, act on non‐compliance by States with their obligations under public international law to comply with orders of the Tribunal. The only available course of action was to refer non‐compliance back to the Security Council.

The Rules of Procedure and Evidence (RPE) specify how the obligation derived from Resolution 827 and set out in the Statute is to be carried out in practice. Rule 7bis sets out the conditions and mechanism for referral of cases of non‐compliance to the Security Council. There are two ways in which this could be done. Either a Trial Chamber or a judge could advise the president of non‐compliance with binding orders or with an international arrest warrant; or the prosecutor could refer cases of non‐compliance with requests for assistance to the president, who would duly report the matter to the Security Council. In the latter case, there is no need for a binding order, merely the fact of non‐compliance with a request issued by the prosecutor. This was confirmed in the Blaškić case:

The conjoint effect of Rule 7bis(B) and Rule 8 is to make reportable to the Security Council a failure by a State to comply with a request by the Prosecutor for certain information. This is so, even though the request would only have been made pursuant to the general requirement to cooperate (sic) imposed by Article 29(1) of the Statute and was unsupported by a judicial order made under Article 29(2).95

Because the Tribunal was established as a measure for the restoration and maintenance of international peace and security, refusal to cooperate constituted a threat to the peace. Legally, therefore, the Security Council had the authority to act under Chapter VII and take any measure under Article 41, short of the use of force, or Article 42, involving the use of force against a recalcitrant State. Another route to the imposition of sanctions was Resolution 1022, which envisaged the reintroduction of economic sanctions in case of non‐compliance with obligations under the GFA, as discussed earlier. In practice, it has not taken such measures. Beyond (p.139) condemnation, nothing concrete has been done by the Security Council to punish non‐compliance. What has been done has been outside the Security Council.

The decision by States whether to provide assistance to the Tribunal is not only a question of accepting some degree of derogation of sovereignty, but is also dependent on local political aspects.96 At the time of the establishment of the Tribunal, in May 1993, the war in Bosnia was ongoing. Fighting had also broken out between Bosnian Croats, who sought to carve out a ‘Croatian Community of Herceg‐Bosna’ and took over the town of Mostar in October 1992, and Muslims. A peace settlement was finally brokered in Washington in March 1994 between Bosnian Croats and the Bosnian government, which established the framework for a Muslim–Croat Federation. Following the failure of the Vance–Owen peace plan in May 1993, the war in Bosnia lasted another two and a half years, until a peace agreement was finally brokered at Dayton in November 1995. Even after peace had broken out, the situation on the ground meant that it was extremely difficult for the Tribunal to conduct investigations, let alone obtain custody of accused. The FRY consistently refused to cooperate, while Croatia cooperated on some things and stalled on others. In Bosnia, the attitudes of the authorities of the different entities reflected those of their ‘parent’ Republics.

The FRY was in breach of its obligation to enforce Republika Šrpska obligations under the terms of the Dayton Accords, and consistently refused to comply with its own obligations. On the surface, Belgrade initially adopted a conciliatory tone, and some progress was made shortly after the Dayton agreement was signed; in January 1996, President Cassese obtained the agreement of the Belgrade authorities for the prosecutor to open a field office there. In addition, the Belgrade authorities suggested that they might be willing to arrest and transfer non‐nationals to the Tribunal, although they maintained that transfer of nationals was precluded by extradition laws.97 This contention was wrong from a legal point of view, since the transfer of accused to the custody of the Tribunal should not have been understood as extradition, but as surrender.98 Notwithstanding this, as Cassese pointed out, the position of Belgrade was in breach of international law: ‘a State cannot adduce … its own Constitution with a view to evading obligations incumbent upon it under international law’.99

(p.140) The failure to arrest Karadžić and Mladić when they visited Belgrade to attend Djukic's funeral on 21 May 1996, and again on 28 May to attend talks with Milošević, was the real evidence of the attitude of the FRY authorities toward the Tribunal.100 In an interview with Der Speigel in July 1996, Milošević stated: ‘A funeral is a holy day. Everybody can come and go freely.’101 From this point forward, the Government of the FRY consistently and publicly refused any form of cooperation with the ICTY. On announcing the first indictment alleging crimes committed against Bosnian Serbs at the Celebici camp in Bosnia in 1994, Goldstone stated that the investigation had been difficult and time‐consuming, mainly because of the detrimental impact of the lack of cooperation of the Belgrade and RS authorities.102 Following a request from the prosecutor for the transmission to the Security Council of the urgent need to impress upon the FRY its obligations, on 8 September 1998 the President of the Tribunal sent a three page letter to the Security Council, which stated that: ‘The persistent and continuing rejection of orders to arrest Mile Mrkšić, Miroslav Radić, and Veselin Šljivancčanin is but the most blatant example of the refusal of the FRY to cooperate with the International Tribunal.’103 Such intransigence formed a consistent pattern until 2000–2001.

In 1998 and 1999, the FRY put an effective halt to investigations being carried out in Kosovo.104 The justification given by the FRY was that the Tribunal did not have jurisdiction to carry out investigations and would not, therefore, be allowed to do so, and further that such investigations represented a violation of the FRY's sovereignty.105 This was a direct violation not only of Article 29, but also of Security Council Resolutions 1160, 31 March 1998, and 1199, 23 September 1998.106 In October 1998, on hearing that the US envoy Richard Holbrooke had failed to obtain any concessions from Milošević, the prosecutor responded unequivocally: ‘The jurisdiction of this Tribunal is not conditional upon President Milošević's consent, nor is it dependent on the outcome of any negotiations between (p.141) him and anyone else.’107 The conclusion of the Holbrooke agreement, in October 1998, led to speculation that the Tribunal had been sacrificed for agreement on OSCE monitors. This was clearly not the case, since the obligation to cooperate reiterated in Resolution 1203, endorsing the Holbrooke agreement,108 and full cooperation with the Tribunal was clearly set out by the Contact Group as one of the six conditions for compliance with Resolution 1199.109

In November 1998, the prosecutor was informed that she, along with the deputy prosecutor, two other members of OTP staff, and two security officers, would be granted seven‐day entry visas for the FRY to attend a conference in Belgrade and meet with government officials, instead of visas for herself and ten investigators to enter the FRY to conduct investigations in Kosovo. The Ambassador of the FRY in The Hague stated: ‘As you have already been informed, the Federal Republic of Yugoslavia does not accept any investigation of ICTY in Kosovo and Metohija generally, nor during your stay in the FRY.’110 The consistent pattern on non‐compliance by the FRY was referred to the Security Council by President McDonald in November 1998.111 In response, the Security Council adopted Resolution 1207, on 17 November 1998, which ‘deplored the continued failure of the FRY to co‐operate fully with the Tribunal [and] called upon the authorities of the FRY and the leaders of the Kosovo Albanian community to co‐operate fully with the prosecutor’.112 Non‐compliance with Resolution 1207 was reported to Security Council by the President of the Tribunal on 8 December 1998.113 Following the Račak massacre in January 1999, the President of the Security Council issued a statement ‘deplor[ing] the decision by the Federal Republic of Yugoslavia to refuse access to the Prosecutor of the International Tribunal and call[ing] upon the Federal Republic of Yugoslavia to co‐operate fully with the International Tribunal’.114

No further concrete action was taken, which prompted the President of the Tribunal to question whether it was ‘worse to condemn behaviour and (p.142) then tolerate it than not to condemn it at all?‘ Not only was this an exercise in hypocrisy, but she feared that the result would be to render the Tribunal nothing more than a ‘paper tiger’.115 During and after the Kosovo campaign and the indictment of Milošević along with senior members of his government, there was no relationship between the FRY and the Tribunal. The Yugoslav Justice Minister, Petar Jojić, called Del Ponte a ‘prostitute for the US’ in a twenty‐five page open letter which was ‘laced with obscenities’. He said that the Tribunal was using tricks to obtain custody of accused, and that Del Ponte was ‘running [a] dungeon which, like the worst whore, you have sold out to the Amercians and to which you bring innocent Serbs by force, by kidnapping and murder’.116

There were high hopes in October 2000 that Milošević would be delivered to The Hague, but Kostunica pledged that he would not pursue Milošević or his family.117 He adopted a more conciliatory tone a few days later, saying that although Belgrade will cooperate, because ‘this is an obligation’, it is not the number one priority.118 The visit made by Del Ponte in January 2001 was a disaster.119 However, as discussed above, the momentum of internal and external pressure culminated in the transfer of Milošević to The Hague on 28 June 2001. In this context the voluntary surrender of Blagjoe Simic on 13 March 2001 was a highly symbolic act.120 The prosecutor cautiously welcomed the move as a ‘first encouraging sign’.121

Croatia, too was ‘less than fully co‐operative’.122 In early 1996, the President of the Tribunal issued a press release stating that, although the Croatian authorities in Zagreb had allowed the OTP to set up a field office in Zagreb and to carry out investigations unhindered, the Croatian government had not at that point passed implementing legislation to give effect to the Statute of the Tribunal, nor had they executed arrest warrants.123 In 1996, one accused was arrested and another surrendered (p.143) voluntarily through the mediation of the Croat authorities.124 Following this, international pressure was exerted which forced the Croatian government to enter into negotiations resulting in the surrender of ten Bosnian Croats to the custody of the Tribunal on 6 October 1997.125 In spite of these developments, the Croatian government was almost as intransigent as the FRY in its dealings with the ICTY. The difference was that it professed a desire to cooperate and blamed any lack of cooperation on legal obstacles; whereas the FRY and RS refused point blank on political as well as legal grounds.

In July 1999, the prosecutor visited Zagreb to discuss the poor level of cooperation, in the light of reports that the Croatian Committee for Co‐operation was actively devising a strategy to delay or defeat certain key investigations.126 Three sets of issues were discussed: first, the failure of Croatia to respond to numerous requests (119 in total) for evidence and information; second, the refusal of Croatia to accept the jurisdiction of the Tribunal over crimes committed during Operations Storm and Flash; and third, the failure of Croatia to surrender and transfer two individuals indicted by the Tribunal. At a meeting on 19 July, Minister of Justice Šeparović told the prosecutor that she could not expect an answer to a consolidated list of requests presented on 22 June 1999 for several months; and even then some answers would not be provided because ‘They relate to Operation Storm, or involve matters of national security, or would be offensive to the dignity of the Croatian people, or would require turning over all of Croatia's military archives.’127 The government of Croatia argued that Operation Storm did not fall under the jurisdiction of the Tribunal as it was not an armed conflict, which was the same argument used by the FRY over Kosovo. The prosecutor refuted both: ‘In my view, there is no legal merit in either argument. In any event, the issue is one for the Judges of the Tribunal. It cannot simply be asserted unilaterally by Croatia’.128 As regards the transfer of the two accused, the Croatian government said it would not do so until individuals had served their sentences in Croatia.

The prosecutor filed a request with the president of the Tribunal asking her to report non‐compliance to the Security Council on 28 July 1999.129 On the first issue, the president declined to grant the request because a number of orders directed at Croatia were being challenged before the Tribunal. On (p.144) the second, she declined to review the appropriateness of the investigation, since it was not within her powers under Rule 7bis.130 She stated, however, that it is not legitimate for a State to thwart investigations on the basis that it does not consider that the Tribunal has jurisdiction; it is a matter for the Trial Chamber. On the third issue, she found non‐compliance in respect of Naletilić, but by the time she considered the request the other accused, Vinko Martinović, was transferred to the ICTY on 9 August 1999.131 Croatia's non‐compliance was reported to the Security Council on 25 August 1999, but no enforcement action was taken. At a meeting between the president and Šeparović on 15 September 1999, Šeparović stated that the Croatian government was ‘fully committed’ to transferring Naletilić but that under Croatian law there may be additional judicial proceedings required so that they were unable to give a specific date. The president informed the Security Council of this development and pointed out that until such time as the transfer takes place, Croatia continued to be in non‐compliance.132 Naletilić remained in custody in Croatia until March 2000, when he was transferred to The Hague.

In December 1999, SFOR reported that Bosnian Croats had been attempting to carry out surveillance of ICTY staff operating in Bosnia. ‘This activity demonstrates the lengths to which political and government leaders throughout the former Yugoslavia are prepared to go to avoid investigations.’133 In addition, Croatia was accused of actively encouraging anti‐Tribunal propaganda. In February 1999, the Croatian parliament adopted a Resolution in which it warned that the Tribunal ‘has become the place where precisely defined political aims are implemented’ and stated that ‘the excesses of the Tribunal bring serious imbalance and instability’.134 It was not only the Serbs who complained of bias. The Croatian Foreign Minister justified the failure of the Croat government to cooperate on the basis that the three Serbs accused over Vukovar had not yet been arrested and tried.135

The situation improved following the death of Tudjman in December 2000. The new president, Stipe Mesić, had already given evidence before the Tribunal, in 1998. In February 2000, he said in an interview with the Serbian opposition TV station, Studio B, that he was ready to testify against Milošević.136 The Prime Minister, Ivica Racan, also pledged cooperation. (p.145) This was indicative of a ‘new approach’ taken to cooperation with the Tribunal.137 In November 2000, Del Ponte acknowledged that there had been an improvement in relations ‘when compared with the previous policy of obstruction and delay adopted by the former government’; but that ‘where Croatia perceives cooperation to be against its political or narrow security interests, a real difficulty still exists’.138 The Croatian government has to balance the legal and political imperative to cooperate with the possible reaction of Croatian extremists. In April 2000, right‐wing factions staged a rally in protest at the arrival of investigators in Gospić, the scene of the alleged execution of hundreds of Serb civilians in June 1991.139

Milošević's transfer to The Hague was a watershed, not only in the attitude of the FRY to the Tribunal, but also that of the Bosnian Serb entity and the Croatian government. Both made highly visible demonstrations of cooperation in the days following Milošević's transfer. In Croatia, two members of the Cabinet resigned in protest at the decision to hand over two Croatian Army officers indicted by the Tribunal.140 Meanwhile, the Bosnian Serb administration pledged that it would make every effort to detain and transfer accused, including making an amendment to the constitution in order to allow for it.141

CONCLUSION

The obligation to cooperate and assist the Tribunal stemmed directly from the UN Charter, as discussed below. The legal framework was important, but the nature and extent of cooperation was a product of political will. The Tribunal faced significant practical and political obstacles in its early years. First, investigations had to be conducted in the middle of an ongoing armed conflict or in its immediate aftermath. Second, many of the crimes were committed at the behest, or at least with the tacit approval, of the same state authorities to whom the Tribunal must address requests for cooperation. Third, the Tribunal encountered significant difficulties in (p.146) obtaining concrete political, diplomatic, and logistic support from the very governments that had voted for its establishment. According to Harris, writing in 1997, ‘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.’142 However, it should be noted that certain actions, whilst not necessarily directly linked to support for the Tribunal, were far from contradictory to its purposes. Operation Allied Force, in August–September 1995, was expressly aimed at making a forceful response to the violations in international humanitarian law taking place in Bosnia in the summer of 1995.

The situation improved dramatically over time, notably following the conclusion of a peace agreement for Bosnia and the presence of IFOR and then SFOR. The provision of military and logistic support to investigators, coupled with strong support from certain members of the international community, in particular the United Kingdom and the United States, from 1997 onwards was both a result of, and a catalyst for, the increased credibility of the Tribunal. However, the intransigence of the Bosnian Croat and Bosnian Serb entities and their ‘parent’ States, Croatia and Serbia, continued to hamper the ability of the Tribunal to carry out its mandate even after changes of government in Croatia and the FRY.

Where there was a reciprocal interest, cooperation worked very well. Equally, a reciprocal interest was established through cooperation, because it meant that agencies had a stake in the success or failure of the Tribunal. The United Kingdom set up a War Crimes Desk in the FCO, not only to facilitate cooperation, but to ensure that they had a channel of communication back to the Tribunal to make their voice heard.143 When it serves the same purpose, States cannot do more. As stated in the 1999 Annual Report, ‘an unprecedented level of support has been given to the Tribunal by Member States’ in Kosovo.144 Ultimately, the interests of justice and the interests of States in the restoration and maintenance of international peace and security coincide. The key for the Tribunal was to persuade them of this. This was most clearly demonstrated with regard to obtaining custody of accused, which is the subject of Chapter 7.

Notes:

(1) Address of Antonio Cassese, President of the ICTY to the General Assembly of the United Nations, 7 November 1995.

(2) See Chapter 4.

(3) Meetings took place between the president and foreign ministers and ministers of justice of Bosnia and Hercegovina, Croatia, and the FRY in January and May–June 1996; with the Secretary‐General of NATO, Javier Solana, the SACEUR, General Joulwan, and the Commander of IFOR, Admiral Leighton Smith; with the President of the OSCE and the Head of the OSCE Mission in Sarajevo, Ambassador Frowick, and the High Representative, Carl Bildt; with the Foreign Ministers and Justice Ministers of France, the United Kingdom, Russia, and Germany, and with the US Under‐Secretary of State; and with representative of the European Union—the then President of the European Council, Mrs Agnelli, as well as Jacques Santer, President of the European Commission. Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S/1996/665, 16 August 1996, at 173–7.

(4) In November 1997, the United Kingdom was the first State to agree to provide assistance to witness protection efforts, and this support has continued, although details are confidential. Other states providing assistance include Canada, the Netherlands, and Denmark. CC/PIO/258‐E, 7 November 1997.

(5) Draft Agreement Between the United Nations and the Government of Y on the Enforcement of Sentences of the International Criminal Tribunal for the Former Yugoslavia. By July 2001, only seven States had signed a formal agreement with the Tribunal in order that convicted persons may serve their sentences in their prisons. They are Italy, Finland, Norway, Sweden, Austria, France, and Spain. JL/PIS/482‐E, 28 March 2000. Germany, while it has not signed a formal agreement, has an ad hoc arrangement so that Tadić was transferred to serve his sentence in Germany in October 2000. JL/PIS/538‐E, 31 October 2000. Aleksovski and Furundšija were transferred to serve their sentences in Finland on 25 September 2000. JL/PIS/530‐E, 25 September 2000.

(6) Cited in Morris, V., and Scharf, M. P., An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia. A Documentary History and Analysis, vol. I (New York: Transnational Publishers, 1996), 336.

(7) S/RES/827 (1993), 25 May 1993.

(8) Report of the Secretary‐General pursuant to para. 2 of Security Council Resolution 808, S/25704 (1993), 3 May 1993, at 126.

(9) Statute of the International Tribunal, Article 29.

(10) Article 49, Geneva Convention I; Article 50, Geneva Convention II; Article 129, Geneva Convention III; Article 146, Geneva Convention IV.

(11) Amnesty International, The International Criminal Court: Making the Right Choices. Part III: Ensuring Effective State Co‐operation, IOR 40/13/97, November 1997, 18.

(12) Article 2(7) of the UN Charter states that the principle of non‐intervention in the domestic jurisdiction of any State ‘shall not prejudice the application of enforcement measures under Chapter VII’.

(13) Decision on the Defence Motion on Jurisdiction, Prosecutor v. Tadić, IT‐94‐1‐T, 10 August 1995, at 37. See Chapter 4.

(14) See Chapter 5.

(15) See Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, IT‐95‐14/1, at 26.

(16) General Framework Agreement for Peace in Bosnia and Herzegovina (GFA), Annex 1a, Article X: ‘The Parties shall co‐operate fully with all entities involved in implementation of this peace settlement, as described in the General Framework Agreement, or which are otherwise authorised by the United Nations Security Council, including the International Criminal Tribunal for the former Yugoslavia.’ http://www.nato.int/ifor/gfa/gfa-frm.htm [02/09/1998].

(17) S/RES/1022 (1995), 22 November 1995.

(18) Statement by Ambassador Madeleine K. Albright, US Representative to the United Nations Bosnia Peace Implementation Conference, London, 9 December 1995.

(19) See further and Chapter 7.

(20) Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, IT‐95‐14, 29 October 1997, at 31.

(21) If a legal system works well, then disputes are in large part avoided. Violation of international law carries penalties apart from the normal sanctions associated with criminal conduct in the domestic setting, such as withholding membership of the ‘club’ or other material benefits of membership in international society. Higgins, R., Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), 1.

(22) See Chapter 3.

(23) Holbrooke, R., To End a War (New York: Random House, 1998), 107, 147.

(24) Ibid., 189, 261.

(25) Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S/1998/737, 10 August 1998, at 213.

(26) ‘The German Foreign Minister calls for arrests’, Tribunal Update, No. 1, 28 October to 1 November 1996.

(27) ‘Judges protest the “degradation” of the ICTY’, Tribunal Update, No. 6, 2–4 December 1996.

(28) Ibid.

(29) Press Conference: The Secretary of State for Foreign and Commonwealth Affairs, the Rt. Hon. Malcolm Rifkind QC, MP, and the High Representative, Mr Carl Bildt, London, 5 December 1996. http://www.ohr.int:81/press/p961205a.htm [24/05/01]. See Chapter 7.

(30) International Affairs and Defence Section, House of Commons Library, The Dayton Agreement: Progress in Implementation, Research Paper 96/80, 9 July 1996, 23.

(31) International Affairs and Defence Section, House of Commons Library, Bosnia: The Dayton Agreement—Two Years On, Research Paper 97/110, 31 October 1997, 22.

(32) Ibid., 33.

(33) CC/PIO/223‐E, The Hague, 3 July 1997.

(34) ‘Croatia gets cold shoulder for human rights abuses’, Independent, 30 May 1996.

(35) Bass, G. J., Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000), 256.

(36) Bass, Stay the Hand of Vengeance, 264.

(37) Holbrooke, To End a War, 351.

(38) Fatić, A., Reconciliation Via the War Crimes Tribunal (Aldershot: Ashgate, 2000). See Chapter 8.

(39) James Graff, ‘The Prosecution's Case’, Time, 19 April 1999, 38.

(40) See David Gowan, ‘Kosovo: the British Government and the ICTY’, Leiden Journal of International Law, 13 (2000), 913–29. David Gowan was appointed on 13 April 1999. The post was transformed to a more general one, but is still a high‐level appointment.

(41) ‘Informal talks reported on exit terms for Milošević’, New York Times, 19 June 2000. http://www.nytimes.com/library/world/europe/061900/serbia-prague.html [20/06/00]. ‘US seeks foreign haven for Milošević if he quits’, Guardian, 20 June 2000.

(42) ‘There will … be no question of any deal that spares Milošević from standing trial on these charges.’ Statement by the Foreign Secretary, Robin Cook, London, 27 May 1999. http://www.fco.gov.uk/news/newstext.asp?2482 [27/5/99]. ‘Milošević trial must go ahead says Cook’, Guardian, 5 June 1999.

(43) He was rebuked by the Secretary‐General for these remarks. ‘Fury as UN envoy suggests war crimes amnesty for Milošević’, Guardian, 5 October 2000.

(44) ‘Sanctions to remain until Milošević goes, EU says’, Guardian, 25 March 2000. The ban was lifted in respect of over 100 people, mainly Yugoslav military personnel, at the request of the new government, in November 2000. ‘EU lifts travel ban on Milošević allies’, Guardian, 16 November 2000.

(45) ‘West split on new push to get Milošević’, Guardian, 9 October 2000.

(46) ‘US makes arrest of Milošević a condition of aid to Belgrade’, New York Times, 10 March 2001.

(47) ‘Serbian mayor's surrender gives ray of hope to Hague tribunal’, Guardian, 13 March 2001.

(48) ‘Huge aid promise prompted handover’, Guardian, 29 June 2001. Opinion in Serbia was also more favourable toward the handover following revelations of mass graves full of Kosovar Albanians, whose bodies had been transported from Kosovo in order to escape the attention of investigators. ‘End of the line for the Butcher of Belgrade’, Observer, 24 June 2001.

(49) LM/PIS/547‐E, 7 December 2000.

(50) JL/PIU/397‐E, 19 April 1999; LM/PIS/551‐E, 2 January 2001.

(51) Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, A/53/737, 25 August 1999, at 119.

(52) CC/PIO/228‐E, 17 July 1997. Although this was welcomed as a sign of support from the new Labour government, the groundwork had been put in place by the previous government, in negotiations with the President following a meeting between Cassese and the UK Foreign Minister, Malcolm Rifkind, in April 1996. CC/PIO/068‐E, 24 April 1996.

(53) CC/PIU/322‐E, 8 June 1998.

(54) In July 1994, the United States seconded twenty‐one personnel, which formed the basis of OTP staff. Other States to have seconded personnel include: UK (5), the Netherlands (3), Denmark (2), Norway (2), and Sweden (2). Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S/1995/728, 25 August 1995, at 146. France seconded five magistrates to the OTP to help with the Rules of the Road project in February 1996 and forensic experts to assist with exhumations. At the same time, they made vehicles available for OTP investigators in Bosnia and donated audio‐visual equipment for the courtroom. CC/PIO/036‐E, 23 February 1996. In March 1996, Italy seconded four prosecutors for a period of six months to the OTP. CC/PIO/043‐E, 14 March 1996.

(55) Report of the International Tribunal, A/53/219, 10 August 1998, at 260.

(56) General Assembly Resolution 51/243, adopted 15 September 1997, provided for the phasing out of type II gratis personnel.

(57) CC/PIS/430‐E, 13 August 1999; JL/PIS/421‐E, 23 July 1999; CC/PIS/499‐E, 15 May 1999; CC/JL/PIS/497‐E, 28 April 2000; CC/JL/PIS/490‐E, 18 April 2000; CC/PIS/412‐E, 15 June 1999; JL/PIS/522‐E, 4 August 2000; JL/PIS/527‐E, 12 September 2000.

(58) Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S/1994/1007, 29 August 1994, at 161.

(59) Interview with Gavin Ruxton, 27 March 2000.

(60) Ibid. See Report of the International Tribunal, 29 August 1994, at 175.

(61) The United Kingdom provided a great degree of support and assistance, in particular since 1997. Even before this, the United Kingdom assisted with evidence gathering: the MOD Defence Debriefing Team interviewed around 4,500 men and women. This evidence was collated and submitted to the Tribunal. The MOD also facilitates access by Tribunal investigators to potential witnesses who have served with the British contingent of UNPROFOR. Confidential Interview.

(62) ‘Blaškić trial’, Tribunal Update, No. 68, 16–21 March 1998.

(63) Goldstone, R., For Humanity: Reflections of a War Crimes Investigator (New Haven: Yale University Press, 2000), 93.

(64) Interview with Gavin Ruxton, 27 March 2000.

(65) Interview with John Ralston, 27 November 2000.

(66) Goldstone, For Humanity, 98–9.

(67) Ibid., 90.

(68) See Chapter 8.

(69) Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, IT‐95‐14/1, 29 October 1997, at 1.

(70) Ibid., at 38.

(71) Decision on Defence Motion to Issue Subpoena to the UN Secretariat, Prosecutor v. Kovačević, IT‐97‐24, 1 July 1998.

(72) Decision Refusing Defence Motion for Subpoena, Prosecutor v. Kovačević, IT‐97‐24, 23 June 1998.

(73) Ibid.

(74) Decision on the alternative Request for Renewed Consideration of Delealić's Motion of ran Adjournment until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina, Prosecutor v. Delalić and others, IT‐96‐21, 22 June 1998.

(75) The Chamber ordered the appearance of the following witnesses: General Philippe Morillon; Mr Jean‐Pierre Thébault; Colonel Robert Stewart; General Enver Hadšihasonović; General Milivoj Petković; and the successive commanders of the Seventh Muslim Brigade, Colonels šerif Parković, Amir Kubara, and Asim Koričić. CC/PUI/393‐E, 6 April 1999.

(76) Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, Prosecutor v. Blaškić, IT‐95‐14/1, 12 May 1999. See Judicial Supplement, No. 5 (May 1999), 2.

(77) Decision of Trial Chamber I on Protective Measures for General Philippe Morillon, Witness of the Trial Chamber, Prosecutor v. Blaškić, IT‐95‐14/1, 12 May 1999.

(78) Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, IT‐95‐14/1, 29 October 1997, at 66.

(79) Beigbeder, Y., Judging War Criminals: The Politics of International Justice (London: Macmillan, 1999), 8.

(80) Judicial Supplement, No. 16 (June 2000), 3.

(81) Decision Denying Request for Assistance in Securing Documents and Witnesses from the International Committee of the Red Cross, Prosecutor v. Todorović, IT‐95‐9, 7 June 2000.

(82) Trial Chamber III rules that ICRC need not testify before the Tribunal, JL/PIS/439‐E, 8 October 1999.

(83) Report of the International Tribunal, 23 August 1995, at 182.

(84) Christopher Greenwood, ‘International Humanitarian Law and United Nations Military Operations’, Yearbook of International Humanitarian Law, 1 (1998), 32–3.

(85) W. J. Fenrick, ‘The Enforcement of International Humanitarian Law by Members of Peacekeeping Forces’ [draft] given to this author.

(86) Ibid.

(87) GFA, Article XI: ‘In accordance with Article I, the IFOR Commander is the final authority in theatre regarding interpretation of this agreement on the military aspects of the peace settlement, of which the Appendices constitute an integral part.’

(88) See Holbrooke, To End a War, 338. See Chapter 8.

(89) Conclusions of the Peace Implementation Conference held at Lancaster House, London, on 8–9 December 1995, FCO, London, 9 December 1995.

(90) Bass, Stay the Hand of Vengeance, 254.

(91) Ibid.

(92) Interview with Gavin Ruxton, 27 March 2000.

(93) Report of the International Tribunal, S/1998/846, 25 August 1999, at 133.

(94) Report of the International Tribunal, S/1998/846, 25 August 1999, at 137.

(95) Separate Opinion of Judge Shahabuddeen, Order to the Republic of Croatia for the Production of Documents, Prosecutor v. Blaškić, IT‐95‐14/1, 21 July 1998.

(96) Goldstone, ‘Prosecuting International Crimes’, 5.

(97) CC/PIO/030‐E, 6 February 1996.

(98) See Chapter 7.

(99) CC/PIO/030‐E, 6 February 1996.

(100) ‘Belgrade unwilling to arrest war criminals’, Transition, 12 July 1996, 35.

(101) Ibid., 36.

(102) International Tribunal issues first indictment dealing with Bosnian‐Serb victims, CC/PIO/048‐E, 22 March 1996.

(103) CC/PIU/344‐E, 9 September 1998.

(104) See Chapter 8.

(105) CC/PIU/351‐E, 7 October 1998.

(106) Resolution 1160 ‘urges the Office of the Prosecutor of the International Tribunal … to begin gathering information related to the violence in Kosovo that may fall within its jurisdiction, and notes that the authorities of the FRY have an obligation to co‐operate with the Tribunal’. S/RES/1160 (1998), 31 March 1998. Resolution 1199 ‘Calls upon the authorities of the FRY, the leaders of the Kosovo Albanian community and all others concerned to co‐operate fully with the Prosecutor’. S/RES/1199 (1998), 23 September 1998.

(107) CC/PIU/353‐E, 15 October 1998.

(108) Resolution 1203 calls for ‘full co‐operation with the International Tribunal … including compliance with its orders, requests for information and investigations.’ S/RES/1203 (1998), 24 October 1998. See Press Conference by the Foreign Secretary, Robin Cook, NATO HQ, Brussels, 13 October 1998. http://www.fco.gov.uk/news/newstext.asp?1600 [14/10/98].

(109) Contact Group Discussions on Kosovo, Thursday 8 October 1998. http://www.mod.uk/news/kosovo/archive/fco081098.htm [10/13/98].

(110) CC/PIU/360‐E, 5 November 1998.

(111) JL/PIU/359‐E, 5 November 1998. See also Address to the United Nations General Assembly by Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the Former Yugoslavia, 19 November 1998. http://www.un.org/icty/pressreal/speechP.htm [12/2/98].

(112) S/RES/1207 (1999), 17 November 1998.

(113) JL/PIU/371‐E, 8 December 1998.

(114) Report of the International Tribunal, 25 August 1999, at 97.

(115) Address to the United Nations General Assembly, Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the former Yugoslavia, 19 November 1998.

(116) ‘Yugoslav rails against UN prosecutor’, Boston Globe, 25 May 2000.

(117) ‘West split on new push to get Milošević’, Guardian, 9 October 2000.

(118) ‘Serb leader to co‐operate in war trial’, Observer, 15 October 2000.

(119) ‘Kostunica snubs UN call to seize Milošević’, Guardian, 24 January 2001; ‘Snub to Hague prosecutor’, Guardian, 26 January 2001.

(120) ‘Serbian mayor's surrender gives ray of hope to Hague tribunal’, Guardian, 13 March 2001.

(121) ‘Bosnian Serb surrenders to Hague Tribunal’, New York Times, 13 March 2001.

(122) Harris, M. F., Hitchner, R. B., and Williams, P. R., Bringing War Criminals to Justice, 9.

(123) CC/PIO/030‐E, 6 February 1996.

(124) See Chapter 7.

(125) Ibid.

(126) TH/PIS/420‐E, 20 July 1999.

(127) Ibid.

(128) Ibid.

(129) Request by the prosecutor under Rule 7bis (B) that the president notify the Security Council of the failure of the Republic of Croatia to comply with its obligations under Article 29, 28 July 1999.

(130) Letter from President Gabrielle Kirk McDonald to Justice Louise Arbour, 25 August 1999.

(131) CC/PIS/427‐E, 9 August 1999.

(132) JL/PIS/438‐E, 27 September 1999.

(133) PR/PIS/455‐E, 17 December 1999.

(134) Report of the International Tribunal, 25 August 1999, at 101.

(135) Ibid., at 103.

(136) ‘Croat president invites Serb return’, BBC News Online, 10 February 2000. http://news.bbc.co.uk/hi/english/world/europe/newsid_637000/637652.stm [10/02/00].

(137) JL/PIS/501‐E, The Hague, 17 May 2000. Croatia refused to hand over documents for use as evidence in the Kordić case and material relating to ‘Operation Storm’.

(138) JL/PIS/542‐E, The Hague, 24 November 2000.

(139) ‘Right‐wing fury at Hague Cooperation’, BCR, No. 136, 2 May 2000.

(140) Rahim Ademi surrendered to the custody of the Tribunal on 25 July 2001. His co‐accused, Ante Gotovina, a retired Croatian Army General, fled into hiding. GB/PIS/606‐e, 26 July 2001.

(141) ‘Bosnian Serbs near to handing over fugitives’, Guardian, 5 July 2001; ‘Croats accused of war crimes’, Observer, 8 July 2001.

(142) Harris, M. F., Hitchner, R. B., and Williams, P. R., Bringing War Criminals to Justice: Obligations, Options, Recommendations (Dayton, OH: Center for International Programs, 1997), 10.

(143) Confidential interview.

(144) Report of the International Tribunal, 25 August 1999, at 126.