ABSTRACT
In the end of 2007 in her final speech to the United Nations Security Council (UNSC) the outgoing Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY) Carla Del Ponte reiterated her disappointment at not having been able to bring the former political leader Radovan Karadzˇic´ and the former military commander Ratko Mladic´ to justice (Del Ponte 10 December 2007). The ICTY was established in 1993 in order to help ensure accountability for serious violations of international humanitarian law committed during the violent conflict in the territory of the Former Yugoslavia, which was seen as a precondition for establishing sustainable peace in the area. Two years after its establishment Richard Goldstone, who was the Prosecutor of the ICTY at the time, indicted Karadzic and Mladic, accusing them of bearing the main responsibility for some of the worst atrocities committed during the violent conflict in Bosnia-Herzegovina. Despite being on top of the ICTY’s most wanted list, the two men remain at large twelve years after their indictments were announced and they are far from the only indicted war criminals who have managed to stay at large after indictment by the ICTY. Especially in the beginning, this failure to arrest individuals sought for prosecution seriously threatened the tribunal’s prospects for success. Even ten years after the establishment of the ICTY, sixteen men in addition to Mladic and Karadzic were still at large (President of the ICTY 2003). The failure to arrest Karadzic, Mladic and other indicted war criminals has exposed the Achilles’ heel of international criminal tribunals, namely their current dependence on the cooperation of national and international authorities outside their control to carry out vital tasks such as arrests. In contrast to national courts, the ICTY like other international criminal tribunals, does not have its own police force to carry out the arrest warrants that it issues. Instead the initial idea was that national authorities in the states where the indicted war criminals were residing would be responsible for their arrest and transfer to the ICTY. However, it soon became apparent that not all national authorities were eager to provide that kind of assistance. Whereas the national authorities in the Federation of Bosnia and Herzegovina have been fairly cooperative, the national authorities in Republika Srpska, the mainly Serb part of Bosnia-Herzegovina, have refused to carry out any requests for arrests despite strong criticism for their inaction on numerous occasions (President of the
ICTY, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004). Hence, it soon became clear that, unless alternative arrangements were made, the areas in which national authorities refused to cooperate would be safe havens for indicted war criminals. In the case of Bosnia-Herzegovina a possible alternative solution was to request the peace enforcement mission deployed in the country at the time to carry out the arrest warrants. The peace enforcement mission consisted of the UN-led United Nations Mission in Bosnia-Herzegovina (UNMIBH), which was in charge of implementing the civilian parts of the Dayton Peace Agreement (DPA) and the NATO-led Implementation Force (IFOR), which was responsible for assisting the national authorities in implementing the military parts of the DPA. Thus the Prosecutor of the ICTY began to pass on arrest warrants to IFOR, requesting that the peace enforcement soldiers detain the individuals indicted by the ICTY (President of the ICTY 1996). However, although 60,000 IFOR soldiers were deployed all over BosniaHerzegovina, they never managed to detain a single indicted war criminal. IFOR’s successor, the similarly NATO-led Stabilisation Force (SFOR), did eventually manage to detain some indicted war criminals but, throughout SFOR’s mission, others remained at large within SFOR’s area of operation despite the presence of thousands of international soldiers. The lack of detentions led actors such as the Prosecutor of the ICTY and human rights organisations to heavily criticise the peace enforcement missions for not doing enough to detain indicted war criminals on numerous occasions.
