The Yugoslav Tribunal at a crossroads: The Dayton peace agreement and beyond

Human Rights Quarterly

Volumn 18, Issue 2, 1996, Pages 259-285

  Akhavan, Payam ^a  

^a Office of the Prosecutor   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

DAYTON PEACE AGREEMENT; INTERNATIONAL CRIMINAL TRIBUNAL; INTERNATIONAL RELATIONS; YUGOSLAV TRIBUNAL;

YUGOSLAVIA;

EID: 0030446709     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1996.0015     Document Type: Review

References (90)

1. An Agenda for Peace, Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, U.N. GAOR, 47th Sess., Preliminary List Item 10, at 16, ¶ 55, U.N. Doc. A/47/277, S/24111 (1992).
2. See Payam Akhavan, Punishing War Crimes in the Former Yugoslavia: A Critical Juncture for the New World Order, 15 HUM. RTS. Q. 262 (1993).
3. For a comprehensive overview of the legislative history and Statute of the Tribunal, see James C. O'Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AM. J. INT'L L. 639 (1993).
4. S.C. Res. 955, U.N. SCOR, 3453d mtg., U.N. Doc. S/RES/955 (1994).
5. S.C. Res. 827, U.N. SCOR, 3217th mtg. at preamble ¶ ¶ 2-4, U.N. Doc. S/RES/827 (1993).
6. Id.
7. See Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 2 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948).
8. Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Dec. 1948, 78 U.N.T.S. 277 (1951) (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).
9. Genocide-Draft Convention and Report of the Economic and Social Council, Union of Soviet Socialist Republics: Amendments to the Draft Convention, U.N. GAOR 6th Comm., 3d Sess., at 3, U.N. Doc. A/C.6/215/Rev.1 (1948).
10. U.N. GAOR 6th Comm., 3d Sess., pt. 1, 101st mtg. at 412-13, U.N. Doc. A/C.6/SR.61-140 (1948) (Statement of Mr. Maktos).
11. Id. at 410 (Statement of Mr. Kaeckenbeeck).
12. U.N. SCOR, 3175th mtg. at 4, U.N. Doc. S/PV.3175 (1995).
13. Id. at 5.
14. U.N. SCOR, 3217th mtg. at 6, U.N. Doc. S/PV.3217 (1993).
15. The report of the Secretary-General on the establishment of the Tribunal recommended Chapter VII action by the Security Council because, inter alia, "the treaty approach incurs the disadvantage of requiring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective." Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, at 7 ¶ 20, U.N. Doc. S/25704 (1993).
16. U.N. Doc. S/PV.3175, supra note 13, at 12-13.
17. Id. at 16.
18. U.N. Doc. S/PV.3217, supra note 15, at 12.
19. See generally YUGOSLAVIA, THE FORMER AND FUTURE: REFLECTIONS BY SCHOLARS FROM THE REGION (Payam Akhavan ed., 1995).
20. U.N. Doc. S/PV.3175, supra note 13, at 19-20.
21. The role of war crimes prosecutions in the process of interethnic reconciliation is particularly apparent in the Federation of Bosnia and Herzegovina where a cease-fire between the Bosnian Government and Bosnian Croat forces has already been in force since the Washington Agreement of 1994. In his report to the United Nations Commission on Human Rights, the former Special Rapporteur for the former Yugoslavia, Mr. Tadeusz Mazowiecki, observed that: "Throughout the region . . . the building of mutual trust is seriously hampered by the sense that war criminals are still at large and appear to enjoy impunity" and by the fact that "in some instances alleged war criminals have been given positions of local civil or military authority." Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of This World with Particular Reference to Colonial and Other Dependant Countries and Territories: Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. ESCOR, Comm'n on Human Rts., 51st Sess., Provisional Agenda Item 12 at 3 ¶ 11 U.N. Doc. E/CN.4/1995/ 10 (1994).
22. U.N. SCOR, 3453d mtg. at 14, U.N. Doc. S/PV.3453 (1994).
23. Id.
24. Id.
25. Id.
26. U.N. SCOR, U.N. Doc. S/25221 (1993).
27. U.N. Doc. S/PV.3217, supra note 15, at 27.
28. Id. at 32.
29. Id.
30. U.N. Doc. S/PV.3175, supra note 13, at 11.
31. Id.
32. Kenneth Anderson, Nuremberg Sensibility: Telford Taylor's Memoir of the Nuremberg Trials: The Anatomy of the Nuremberg Trials, 7 HARV. HUM. RTS. J. 281, 292-93 (1994).
33. See, e.g. Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 HARV. HUM. RTS. J. 229 (1995).
34. Anthony D'Amato, Peace vs. Accountability in Bosnia, 88 AM. J. INT'L L. 500 (1994).
35. David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 CRIM. L. F. 401, 415 (1994) (emphasis omitted).
36. Id. at 416.
37. Id.
38. Id.
39. D'Amato, supra note 35, at 503-04.
40. Id.
41. Id. at 504.
42. To date, these include the president of the Bosnian Serb Entity, Dr. Radovan Karadzić, and the commander of the Bosnian Serb Army, General Ratko Mladić. In an indictment of 25 July 1995, they were charged with genocide, crimes against humanity, and war crimes during the period between 1992 and 1995; for atrocities against the civilian population throughout Bosnia-Herzegovina, including especially mass-killings in detention camps; for the sniping campaign against civilians in Sarajevo; and for the taking of UN peacekeepers as hostages and their use as human shields. International Criminal Tribunal for the Former Yugoslavia, Indictment 7, U.N. Doc. IT/95/5/1 (1995). In a subsequent indictment on 16 November 1995, they were both charged, inter alia, with genocide for the mass-killing of an estimated 6,000 Muslim men following the fall of the Srebrenica "safe haven" to Bosnian Serb armed forces in July 1995. International Criminal Tribunal for the Former Yugoslavia, Indictment 12, U.N. Doc. IT/95/18/1 (1995).
43. To date, these include the president of the Bosnian Serb Entity, Dr. Radovan Karadzić, and the commander of the Bosnian Serb Army, General Ratko Mladić. In an indictment of 25 July 1995, they were charged with genocide, crimes against humanity, and war crimes during the period between 1992 and 1995; for atrocities against the civilian population throughout Bosnia-Herzegovina, including especially mass-killings in detention camps; for the sniping campaign against civilians in Sarajevo; and for the taking of UN peacekeepers as hostages and their use as human shields. International Criminal Tribunal for the Former Yugoslavia, Indictment 7, U.N. Doc. IT/95/5/1 (1995). In a subsequent indictment on 16 November 1995, they were both charged, inter alia, with genocide for the mass-killing of an estimated 6,000 Muslim men following the fall of the Srebrenica "safe haven" to Bosnian Serb armed forces in July 1995. International Criminal Tribunal for the Former Yugoslavia, Indictment 12, U.N. Doc. IT/95/18/1 (1995).
44. To date, these include the Vice-President and Member of the Presidency of the Croatian Community of Herzeg-Bosnia, Mr. Dario Kordić as well as the Chief of Staff of the Croatian Defence Council, General Tihofil Blaskić. In an indictment of 10 November 1995, they were both charged with crimes against humanity and war crimes for the "ethnic cleansing" of Muslims in the Lasva River Valley of Central Bosnia during 1992 and 1993. International Criminal Tribunal for the Former Yugoslavia, Indictment 11, U.N. Doc. IT/95/14/1 (1995).
45. Although they had initially become a permanent feature of international negotiations in Geneva under the Vance-Owen plan, neither Karadzić nor Mladić were present either at the Dayton proximity talks or at the signing ceremony in Paris on 14 December 1995.
46. U.N. SCOR, 3607th mtg. at 19, U.N. Doc. S/PV.3607 (1995).
47. U.N. Doc. S/PV.3217, supra note 15, at 13.
48. Jane Perlez, Karadzić and Mladić No More Swagger for 2 Losers, INT'L HERALD TRIB., 16 Dec. 1995.
49. The Dayton Peace Agreement, U.N. Doc. S/1995/999 (1995) [hereinafter Dayton Agreement].
50. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, U.N. Doc. A/CONF.39/27, 8 I.L.M. 679 (1969).
51. U.N. CHARTER art. 103.
52. S.C. Res. 1031, 3607th mtg., ¶ 2, U.N. Doc. S/RES/1031 (1995).
53. Id. ¶ 1.
54. Dayton Agreement, supra note 49 (General Framework Agreement for Peace in Bosnia and Herzegovina, art. IX).
55. Id. Annex 1-A (Agreement on the Military Aspects of the Peace Settlement, art. I(A)).
56. U.N. Doc. S/RES/1031, supra note 52, ¶ 12.
57. Id. ¶ 13.
58. Id. ¶ 14.
59. Id. ¶ 15.
60. Id. ¶ 4.
61. Id. ¶ 5.
62. U.N. Doc. S/PV.3607, supra note 46, at 20.
63. Id.
64. Id.
65. Id. at 21.
66. Id.
67. Id. at 8.
68. Id. at 14.
69. Id. at 25.
70. S.C. Res. 1034, U.N. SCOR, 3612th mtg., ¶ 9, U.N. Doc. S/RES/1034 (1995).
71. S.C. Res. 1022, U.N. SCOR, 3595th mtg., ¶ 1, U.N. Doc. S/RES/1022 (1992).
72. Id. ¶ 2.
73. U.N. SCOR, 3595th mtg. at 3, U.N. Doc. S/PV.3595 (1995).
74. U.N. Doc. S/RES/1022, supra note 71, ¶ 3.
75. U.N. Doc. S/PV.3595, supra note 73, at 9.
76. Id.
77. U.N. Doc. S/PV.3607, supra note 46, at 7.
78. Id. at 20.
79. Id. at 30.
80. Id.
81. Akhavan, supra note 3, at 281-82.
82. See Report of the International Law Commission on the Work of its Forty-sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994); see also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995).
83. See Report of the International Law Commission on the Work of its Forty-sixth Session, U.N. GAOR, 49th Sess., Supp. No. 10, U.N. Doc. A/49/10 (1994); see also Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Sess., Supp. No. 22, U.N. Doc. A/50/22 (1995).
84. Article 23 of the Draft Statute prepared by the International Law Commission provides that, in addition to states parties which have accepted its jurisdiction, the Court shall have jurisdiction with respect to crimes enumerated in its statute "as a consequence of the referral of a matter to the Court by the Security Council acting under Chapter VII of te Charter of the United Nations." See U.N. Doc. A/49/10, supra note 82.
85. U.N. Doc. S/PV.3607, supra note 46, at 33.
86. See Attorney-General of Israel vs. Adolf Eichmann, 36 INT'L L. REP. 5 (1968).
87. U.N. Doc. S/PV.3595, supra note 73, at 21.
88. IVO ANDRIĆ, THE BRIDGE ON THE DRINA (Lovett F. Edwards trans., 1959) (1945).
89. Id. at 265.
90. Id.