Bosnia War Crimes: The International Criminal Tribunal for the Former Yugoslavia and U.S. Policy

Bosnia War Crimes: The International Criminal Tribunal for the Former Yugoslavia and U.S. Policy

96-404 F
CRS Report for Congress
Received through the CRS Web
Bosnia War Crimes: The International Criminal
Tribunal for the Former Yugoslavia and U.S.
Policy
Updated April 23, 1998
(name redacted)
Legislative Attorney
American Law Division
Raphael Perl
Specialist in International Affairs
(name redacted)
Specialist in European Affairs
Foreign Affairs and National Defense Division
Congressional Research Service ˜ The Library of Congress

ABSTRACT
This report provides background and analysis on the International Criminal Tribunal for the
Former Yugoslavia (ICTY). It describes the origins of the Tribunal; its authority and
powers; its financing; and its recent activities and problems. The report discusses U.S.
policy on the ICTY; the relationship between the Tribunal and the NATO-led Stabilization
Force (SFOR) in Bosnia; and Congressional action on the issue. The report also deals with
the impact of the Tribunal's work on the Bosnian peace process as a whole. A final section
touches briefly on questions and implications raised by the Tribunal's activities for the
powers of the United Nations, the principles of international law, and the U.S. role in
enforcing international law. Appendices include a chart describing the current status of those
publicly indicted by the Tribunal; historical precedent for the Tribunal; proposals for a
permanent international criminal court, and ICTY rules of evidence and procedure. This
report will be updated as events warrant.

Bosnia War Crimes: The International Criminal Tribunal for
the Former Yugoslavia and U.S. Policy
Summary
War crimes were an integral part of the 1992-1995 Bosnian war. Bosnian Serb
militias drove hundreds of thousands of non-Serb civilians from their homes,
committing tens of thousands of acts of murder, rape and torture, in a systematic
policy of "ethnic cleansing." Most observers believe most war crimes committed by
the Bosnian Serbs from 1992 until the end of the war in 1995 were a vital part of the
political and military strategy of Bosnian Serb leaders. Although Serbs are seen by
many observers as the main culprits, Croats and Muslims also committed substantial
numbers of war crimes during the conflict.

Reports of war crimes in Bosnia have had an important impact on U.S. and Western
policy toward the conflict. Pictures in Western media of Serb detention camps where
inmates were routinely starved, tortured and raped, as well as carnage caused by the
shelling of Sarajevo, provoked international outrage and calls for (usually
unspecified) action. U.S. and European policymakers felt a need to respond to the
emotional issue of war crimes, but did not want to be drawn into the Bosnian war as
combatants or policemen. The U.N. Security Council established The International
Criminal Tribunal for the Former Yugoslavia on May 25, 1993 (Resolution 808). It
is the first international tribunal for prosecution of war crimes since the Nuremberg
and Tokyo trials fifty years ago. The Tribunal initially got off to a slow start in part
due to difficulties in finding judges and prosecutors, and inadequate funding. As of
April 1998, however, 74 suspects are known to be currently under indictment for
genocide, war crimes and crimes against humanity. Fifty-six of the suspects are
Serbs, 15 are Croats, and 3 are Muslims. 26 of the 74 suspects are in custody at
present. One suspect was killed while resisting arrest, a second released pending
trial. The first war crimes trial began on May 7, 1996. The suspect, Dusan Tadic,
was found guilty on May 7, 1997. A second suspect pleaded guilty and was
sentenced in November 1996. There are currently four trials underway.
U.S. policymakers are faced with the issue of how to combine support for the
Tribunal with progress on implementing the Bosnian peace accords. Some observers
believe that vigorous pursuit of war criminals may hurt the peace process. They
feared that the Bosnian Serbs could stop implementing the peace accord or engage
in acts of violence against peacekeepers. This concern appears to be one reason why
IFOR and, for at least the first six months of its tenure, SFOR, appeared reluctant
to seize war crimes suspects. However, more recently, a consensus appears to have
emerged in the international community that the fact that war criminals remained at
large undermined the implementation of critical civilian aspects of the peace
agreement. In the longer term, some observers believe that a lasting peace is
impossible in Bosnia unless justice is done with respect to war crimes. They believe
that the recrimination can only give way to reconciliation if the desire to assign
collective guilt to another ethnic group and exact revenge is replaced by the desire
to bring to justice the individuals of all ethnic groups who committed the crimes.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The International Criminal Tribunal for the Former Yugoslavia . . . . . . . . . . . . . 5
Authority and Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Authority for the Establishment of the Tribunal . . . . . . . . . . . . . . . . . . 5
General Principles and Powers Under the Statute . . . . . . . . . . . . . . . . . 6
Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Office of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Recent Activities and Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
U.S. Policy on the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Financial Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Intelligence Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IFOR, SFOR and the Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Detention of Suspected War Criminals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Security for War Crimes Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Impact of the Tribunal on the Peace Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Questions and Implications for the Future . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Appendix 1: International Criminal Court For The Former Yugoslavia Public
Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Appendix 2: Historical Precedent for a War Crimes Tribunal . . . . . . . . . . . . . . 42
Appendix 3: Proposals for a Permanent International Criminal Tribunal . . . . . . 44
Appendix 4: Tribunal Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . 46

Bosnia War Crimes: The International Criminal
Tribunal for the Former Yugoslavia and U.S.
Policy
Introduction
War crimes were an integral part of the 1992-1995 Bosnian war, and were
committed by all sides in the conflict.1 Shortly before recognition of Bosnia by the
European Community and the United States in April 1992, Bosnian Serb militiamen
and the Yugoslav Army (part of which was later converted into the Bosnian Serb
army) launched attacks throughout the republic against unarmed or poorly armed
civilians. Most observers believe that most war crimes committed by the Bosnian
Serbs from 1992 until the end of the war in 1995 were not unplanned, scattered
excesses by a few soldiers, but a key aspect of the political and military strategy of
Bosnian Serb leaders. They besieged the Bosnian capital of Sarajevo, killing
civilians by indiscriminate shelling and sniper attacks. Bosnian Serb militias forced
hundreds of thousands of non-Serb civilians from their homes, committing tens of
thousands of acts of murder, rape and torture, in a systematic policy of "ethnic
cleansing." This policy was aimed at creating a territorially compact, ethnically
"pure" Serb state, (comprising about two-thirds of the republic's territory) which
would then be united with Serbia and Montenegro and an ethnically-cleansed region
carved out of Croatia by similar means in 1991.2
Although Serbs are seen by many observers as the main culprits, Croats also
committed substantial numbers of war crimes. Croat extremists in Hercegovina and
central Bosnia carried out a brutal ethnic cleansing campaign against Muslims during
their 1993-1994 war in a drive to create an ethnically pure Croat state that could be
united with Croatia. There are also numerous reports of war crimes committed by
Muslims, albeit fewer than those committed by the other two groups, according to
observers.
Reports of war crimes in Bosnia have had an important impact on U.S. and
Western policy toward the conflict. Pictures in Western media of Serb detention
camps where inmates were routinely starved, tortured and raped, as well as carnage
caused by the shelling of Sarajevo, provoked international outrage and calls for
(usually unspecified) action. U.S. and European policymakers felt a need to deal
with the emotional issue of war crimes, but did not want to be drawn into the
1This section was prepared by Raphael Perl, Specialist in International Affairs and (name
redacted), Specialist in European Affairs.
2Final Report of the United Nations Commission of Experts: Annex Summaries and
Conclusions, U.N. Security Council Document, S/1994/672/Add2 (Volume I) 28 December
1994.

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Bosnian war as combatants or police. Policymakers were also trying to establish a
legal precedent for action, in order deter future war crimes elsewhere.
A first step was the establishment of a war crimes commission to collect
evidence of atrocities in the former Yugoslavia. The Commission of Experts on the
Former Yugoslavia was established by U.N. Security Council Resolution 780 in
October 1992. The final report of the commission, more than 3,000 pages, was
submitted to the U.N. Secretary-General in May 1994.
While the Commission of Experts was gathering material on war crimes, the
members of the U.N. Security Council reached agreement on the establishment of a
war crimes tribunal. The International Criminal Tribunal for the Former Yugoslavia
was established by U.N. Security Council Resolution 808 on May 25, 1993. It is the
first international tribunal for prosecution of war crimes since the Nuremberg and
Tokyo trials of fifty years ago. As of April 1998, however, 74 suspects are known
to be currently under indictment for genocide, war crimes and crimes against
humanity. Fifty-six of the suspects are Serbs, 15 are Croats, and 3 are Muslims. 26
of the 74 suspects are in custody at present. One suspect was killed while resisting
arrest. A second has been released provisionally due to ill-health. (He must return
to the Hague two weeks before the trial is to begin.) Those indicted include former
Bosnian Serb leader Radovan Karadzic and former army chief Ratko Mladic. The
Tribunal initially got off to a slow start in part due to difficulties in finding judges
and prosecutors, and inadequate funding.
War crimes played a significant role in bringing the war to an end. After the
Bosnian Serbs overran the U.N.-declared "safe areas" of Srebrenica and Zepa in July
1995, reports soon emerged that the Bosnian Serbs executed an estimated 6,000 to
8,000 civilians and dumped their bodies into mass graves. International outrage over
the atrocities caused the United Nations and NATO to agree, in response to strong
U.S. pressure, to more extensive use of air strikes in response to attacks on safe
areas. Massive NATO air strikes were launched in August 1995 in response to
Bosnian Serb shelling of Sarajevo (for which Bosnian Serb leaders have been
indicted by the Tribunal.) These strikes, combined with Muslim and Croat
battlefield successes at around the same time, led the Bosnian Serbs and their patrons
in Serbia-Montenegro to agree to U.S.-sponsored peace talks in Dayton, Ohio in
November. The Dayton peace accords, initialed in November 1995, were signed in
Paris a month later.
The Bosnian peace agreement includes many provisions requiring the parties
to cooperate with the ICTY. The General Framework Agreement commits all parties
to "cooperate in the investigation and prosecution of war crimes and other violations
of international humanitarian law. (Article IX)" Article X of Annex I-A to the peace
agreement provides that the parties "shall cooperate fully with all entities involved
in implementation of this peace settlement...including the International [War Crimes]
Tribunal for the Former Yugoslavia..." The Bosnian constitution (Annex 4 of the
peace agreement) requires the entities to cooperate fully with the Tribunal (Article
II, Section 8) and bars persons indicted by the Tribunal from public office (Article
IX, Section 1). Annex 6 of the peace agreement requires local authorities to
cooperate with the ICTY (Chapter 3, Article VIII, Section 4). Article VI of Annex
11 provides that U.N.-sponsored International Police Task Force (IPTF) personnel

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shall provide information on human rights violations to the war crimes tribunal and
that the parties "shall cooperate with investigations of law enforcement forces and
officials".
A conference, held in Rome in February 1996 on implementation of the Dayton
Accords produced further agreement on war crimes cooperation. The parties
recognized "their obligation to cooperate fully in the investigation and prosecution
of war crimes". They specifically agreed to provide unrestricted access to war
crimes suspects and investigation sites. The NATO Implementation Force [IFOR],
it was noted, "will work to provide a secure working environment for the completion
of these tasks." The parties also agreed to what were dubbed the "rules of the road:"
if the parties wanted to arrest or indict a suspect, an order must be reviewed by the
Tribunal and deemed consistent with international legal standards.3
A June 1996 international peace accord review conference called for the
removal of indicted war criminal Radovan Karadzic from power. Tribunal President
Antonio Cassese called for the arrest and extradition of indicted war criminals as a
precondition for Bosnian elections that were held in September 1996. Cassese
repeated an earlier recommendation that economic sanctions be applied to enforce
compliance with the tribunal. The conference demanded the removal of Karadzic but
stopped short of calling for a re-imposition of sanctions against violators, but rather
referred to sanctions as a measure of last resort. Karadzic was removed in July 1996,
after a meeting between U.S. envoy Richard Holbrooke and Serbian leader Slobodan
Milosevic. An international conference in London in December 1996 to assess the
implementation of the peace accord warned the parties to the agreement that
economic reconstruction assistance is closely linked to their cooperation with the
Tribunal. Because of their failure to implement provisions of the peace accord,
including cooperation with the Tribunal, the Republika Srpska received only about
2% of international reconstruction aid for Bosnia in 1996.
NATO policy on IFOR assistance to the International Tribunal provided that
IFOR personnel would detain and transfer indicted persons to the tribunal when they
come into contact with such persons in the course of carrying out their duty.4 In
December 1996, IFOR was formally replaced by a Stabilization Force (SFOR), an
approximately 31,000-person NATO-led force with essentially the same mandate as
IFOR. This force, which will be reduced as conditions improve in Bosnia, will stay
in Bosnia until a self-sustaining peace takes hold.

An ongoing issue of central concern to the Administration and Congress is the
impact of the Tribunal's activities on the peace process and on the safety of U.S.
forces in Bosnia. The relationship of the Tribunal to the peace process in Bosnia is
a difficult and delicate issue. Some observers have raised concerns that that
vigorous pursuit of war criminals may hurt the peace process. Unlike the Nuremberg
Trials, where the victors dispensed justice to a vanquished enemy, the Bosnian peace
agreement was the product of negotiations among factions which counted suspected
3Rome Implementation Agreement of 18 February 1995, Article 5, Cooperation on War
Crimes and Respect for Human Rights.
4NATO Press Release (96)26, IFOR Assistance to the International Tribunal, 14 February
1996.

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war criminals within their leadership (at least as far as the Bosnian Serbs and Croats
are concerned). If these persons are arrested, their supporters could stop
implementing the peace accord or engage in acts of violence against peacekeepers.
This concern may be one reason why IFOR and its successor, SFOR, have appeared
reluctant to seize suspects or guard war crimes sites. Other observers strongly
believe that a lasting peace is impossible for Bosnia unless there is justice. They
believe that the recriminations caused by war crimes can only give way to
reconciliation if the desire to assign collective guilt to another ethnic group and exact
revenge is replaced by the desire to bring to justice the individuals of all ethnic
groups who committed the crimes. An additional concern, which appears to have
emerged as a consensus view in the past year among U.S. and other Western leaders,
is that if suspected war criminals remain at large, the implementation of the peace
agreement could be undermined their direct efforts, by their ability to discredit the
international community by defying it, or by keeping alive the extreme nationalist
ideology that caused the war and would prevent efforts to re-integrate Bosnia.
Other related issues center around the Tribunal, its future, its ability to
implement and enforce decisions. Should the Tribunal come to be seen as a success,
those urging the creation of a permanent international criminal court will be
encouraged. Finally, the issue of U.S. support for the International Criminal Court
for the Former Yugoslavia or any subsequently established U.N. international
criminal tribunal may have policy implications that go well beyond the current
situation in Bosnia. Broader issues could include U.S. world leadership roles and the
potential for U.S. participation in policing what could be remote areas of the world
as well as what may be seen as surrender of national sovereignty to an international
body.
The first part of this paper describes the principles underlying the establishment
of the Tribunal, its procedural rules, organizational structure, financing mechanism
and current operational problems. The next section details U.S. policy toward the
Tribunal, including U.S. political, financial and intelligence support for the
Tribunal's efforts. The third section addresses the relationship of IFOR and its
successor, SFOR, to the Tribunal, especially on the issues of the detention of
suspected war criminals and on security for mass grave sites and Tribunal
investigators. The fourth section of the paper discusses congressional action on the
Tribunal. The following section deals with the impact of the Tribunal on the Bosnian
peace process, while the final section lays out broader questions and implications for
the future raised by the establishment of the Tribunal. Appendixes list the persons
indicted by the Tribunal, provide background on the historical precedent for a war
crimes tribunal, discuss proposals for a permanent international criminal tribunal,
and provide details on the Tribunal's rules of procedure and evidence.

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The International Criminal Tribunal for the Former
Yugoslavia
Although some consensus on a definition of war crimes exists and observers
have noted that war crimes have been committed in the course of many armed
conflicts over the last half-century, the Tribunal for the former Yugoslavia is the first
war crimes tribunal convened since the Nuremberg and Tokyo Tribunals following
the end of World War II. 5
Authority and Powers
Authority for the Establishment of the Tribunal. The Security Council has
passed a series of resolutions6 culminating in the establishment of the Tribunal for
the former Yugoslavia under Chapter VII of the Charter of the United Nations, which
authorizes the Security Council to take measures necessary to maintain or restore
international peace and security.7 The Report of the Secretary-General on the
creation of the Tribunal8 says that the ideal method of establishing it would have
been by a treaty ratified by all parties involved. Such a treaty or convention could
have established a permanent international criminal tribunal, which then could have
handled the war crimes cases from the former Yugoslavia. However, the Report also
notes that the interest in expeditious justice and the difficulties and length of time
necessary to achieve an effective treaty dictated an alternative method of establishing
the Tribunal. Given the volatile, uncertain situation in the former Yugoslavia, the
consensus was that immediate action had to be taken. Therefore, the Security
Council exercised its powers under Chapter VII of the Charter of the United Nations
to establish the ad hoc Tribunal immediately, without the necessity of a convention.
5This section was prepared by (name redacted), Legislative Attorney, American Law
Division.
6S.C. Res. 771, U.N. SCOR, 3106th mtg., U.N. Doc. S/RES/771 (1992) (calling on all states
to collate and report information on war crimes and requesting the Secretary-General to
collate and report such information); S.C. Res. 780, U.N. SCOR, 3119th mtg., U.N. Doc.
S/RES/780 (1992) (establishing the Commission of Experts to investigate and report on
evidence of war crimes in the former Yugoslavia); S.C. Res. 808, U.N. SCOR, 3175th mtg.,
U.N. Doc. S/RES/808 (1993) (deciding to establish the Tribunal and requesting a report from
the Secretary-General on proposals for establishing the Tribunal); S.C. Res. 827, U.N.
SCOR, 3217th mtg., U.N. Doc. S/RES/827 (1993) (establishing the Tribunal, adopting the
Statute of the Tribunal annexed to the Report of the Secretary-General on the matter, and
requiring member states to cooperate with the Tribunal).
7The Charter of the United Nations, chapter VII, reprinted as amended at Basic Documents
of the United Nations, at 10 (Louis B. Sohn, Ed. 1968)
8Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808
(1993), U.N. SCOR, U.N. Doc. S/25704 (1993) [hereinafter Report of the Secretary-
General]. The information in on the establishment of the Tribunal is drawn largely from this
Report. See also Letter Dated 10 February 1993 From the Permanent Representative of
France to the United Nations Addressed to the Secretary-General, U.N. SCOR, U.N. Doc.
S/25266 (1993); Letter Dated 16 February 1993 From the Permanent Representative of Italy
to the United Nations Addressed to the Secretary-General (1993); Letter Dated 18 February
1993 From the Permanent Representative of Sweden to the United Nations Addressed to the
Secretary-General, U.N. SCOR, U.N. Doc. S/25307 (1993).

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There has been and is some concern that the Tribunal might undermine the
peace because the parties to the Balkan conflict would be reluctant to turn over their
own people, especially some of their leaders, for possible trial. There is further
concern that any perceived bias of the Tribunal might cause a party to withdraw from
the peace process in anger either that it was being unfairly penalized or that its
grievances were being overlooked. However, the Report comments that the Tribunal
could help the peace process by providing a neutral forum in which war crimes cases
from all parties can be fairly resolved and redressed, thus reducing unresolved
resentment and tensions over unpunished war crimes.
During the same period that the Security Council was in the process of
establishing the Tribunal, Bosnia-Hercegovina filed a petition against Yugoslavia
(Serbia-Montenegro) in the International Court of Justice (ICJ). The petition alleged
war crimes in violation of the Genocide Convention by the military forces of
Yugoslavia, sought an injunction ordering Yugoslavia to cease its genocidal actions
and also sought reparations from Yugoslavia for injuries to inhabitants of Bosnia-
Hercegovina.9 This case is still pending. The jurisdiction of the ICJ is analogous to
civil cases in which one party sues another for a remedy to an injury, whereas the
jurisdiction of the Tribunal is analogous to criminal cases in which a public law
enforcement authority prosecutes and seeks punishment of an individual accused of
committing a crime. However, unlike civil suits in national courts, individuals
cannot bring cases against individuals before the ICJ; only countries can bring cases
of violations of international law by other countries.
Individual victims of war crimes in the former Yugoslavia may be able to seek
compensation from those responsible for their injuries under national laws in
national courts. Such a suit is proceeding in the federal courts of the United States.
Two groups of victims seeking compensation for injuries are suing Radovan
Karadzic under the Alien Tort Claims Act and the Torture Victim Protection Act of
1991. The District Court dismissed the case for lack of subject matter jurisdiction,
but the Court of Appeals for the Second Circuit reversed and remanded on appeal.
A petition for certiorari has been filed with the United States Supreme Court.10
General Principles and Powers Under the Statute.11 The Statute of the
Tribunal defines the competence and jurisdiction of the Tribunal, that is, what crimes
it is authorized to investigate and try and what general principles of law will govern
the proceedings. Article 1 establishes that the Tribunal "shall have the power to
prosecute persons responsible for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991." Articles 2
through 5 define the crimes, the subject matter jurisdiction of the Tribunal.
9International Court of Justice, Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro), filed March 23, 1993.
10Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), rehearing denied, 74 F.3d 377 (2d Cir.
1996), petition for cert. Filed (U.S. April 4, 1996) (No. 95-1599).
11The Statute of the International Tribunal, Annex to the Report of the Secretary-General,
supra note 9, at 36-48.

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The Report of the Secretary-General proposing the organization of the Tribunal
notes that there are two main sources of international law, customary international
law, which comprises the core of principles about which there is international
consensus, and treaty/conventional law. Because not all states are parties to certain
conventions and "there can be no crime where there is no [pre-existing] law," the
Statute of the Tribunal adopted convention-based definitions of crimes only where
the convention in question expressed definitions which had become a part of
customary international law. The Report lists the conventions which beyond doubt
have become part of customary international law: (1) the Geneva Conventions of 12
August 1949 for the Protection of War Victims;12 (2) the Hague Convention (IV)
Respecting the Laws and Customs of War on Land and the Regulations annexed
thereto of 18 October 1907;13 (3) the Convention on the Prevention and Punishment
of the Crime of Genocide of 9 December 1948 [the 1948 Convention];14 and (4) the
Charter of the International Military Tribunal of 8 August 1945 [the Charter of the
Nuremberg Tribunal].15 The definition of the crimes which may be tried by the
Tribunal according to its statute are thus derived from customary international law.
The crimes include grave breaches of the Geneva Conventions of 1949,
violations of the laws or customs of war, genocide, and crimes against humanity.
The Geneva Conventions of 1949 regulate the conduct of war by protecting certain
categories of persons such as civilians, prisoners of war, and sick or wounded or
shipwrecked members of the armed forces from certain actions such as wilful killing
and torture. Derived from the Hague Convention (IV) of 1907, the violations of the
laws or customs of war include, among other things, use of poisonous weapons or
other weapons of unnecessary suffering, attack of undefended towns, wanton,
militarily unnecessary destruction of towns, plunder of property, and seizure,
damage, or destruction of institutions dedicated to religion, charity, education,
culture or science. The definition of genocide is derived from the 1948 Convention
concerning genocide and includes certain acts committed with the intent to destroy,
in whole or in part, a national, ethnic, racial or religious group, in peace time and in
war time. Crimes against humanity, derived from the Charter of the Nuremberg
Tribunal, include acts similar to those under genocide, but do not require intent to
destroy a particular group and only include acts committed in armed conflict against
12Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the field of 12, August 1949; Convention for the Amelioration of the Condition of
the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August, 1949;
Convention relative to the Treatment of Prisoners of War of 12 August 1949; Convention
relative to the Protection of Civilian Persons in Time of War of 12, August 1949, 75
U.N.T.S. Nos. 970-973.
13Carnegie Endowment for International Peace, The Hague Conventions and Declarations
of 1899 and 1907 100 (1915).
1478 U.N.T.S. No. 1021.
15The Agreement for the Prosecution and Punishment of the Major War Criminal of the
European Axis, 8 August 1945, 82 U.N.T.S. No. 251; see also Judgement of the International
Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the
European Axis (U.S. Government Printing Office, Nazi Conspiracy and Aggression, Opinion
and Judgement) and General Assembly Resolution 95 (I) of 11 December 1946 on the
Affirmation of the Principles of International Law Recognized by the Charter of the
Nuremberg Tribunal.

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a civilian population. It does not matter whether the armed conflict is civil/internal
or international in character.
The personal jurisdiction of the Tribunal, i.e., the persons that it can put on trial,
includes only natural persons, or actual individuals, and not juridical persons, i.e.,
groups or organizations, according to Article 6 of the Statute. In Article 7, the
Statute of the Tribunal espouses the concept of individual criminal responsibility, the
idea that individuals commit crimes, not organizations or nations, and that
individuals who contribute to violations of international human rights laws are
directly responsible. A person cannot claim the defense of immunity because
violations were committed in an official governmental capacity. A person in a
superior official position may be held responsible for failure to prevent or deter
violations committed by subordinates if knowledge of impending violations could
reasonably be imputed to him. Subordinates may not claim the defense of following
orders to escape individual responsibility for violations. However, obedience to
orders may be a mitigating factor at the sentencing phase.
The territorial jurisdiction of the Tribunal is defined as covering the territory of
the former Socialist Federal Republic of Yugoslavia, including land, airspace and
territorial waters, under Article 8 of the Statute. This article also defines the
temporal jurisdiction as extending from January 1, 1991, through the present with no
specified ending date.
Under Article 9 of the Statute, the Tribunal shares jurisdiction concurrently with
the national courts of the former Yugoslav countries and other involved nations. The
national courts exercise jurisdiction according to their national laws and procedures.
However, this is subject to the primacy of the Tribunal. The Tribunal may request
a national court to defer to its jurisdiction at any stage of the proceedings.
Significant and relevant to this shared jurisdiction, prohibitions against double
jeopardy are provided for under Article 10 of the Statute, which uses the Latin term
for the concept, non bis in idem. A trial by the Tribunal precludes a subsequent trial
on the same charges in a national court. However, a trial in a national court would
not preclude a trial by the Tribunal in two situations: (1) the characterization of the
act in the national court did not correspond to its characterization under the Statute
of the Tribunal, that is, it was not treated as a war crime but as an ordinary crime of
murder, rape, assault, etc.; or (2) the conditions of impartiality, independence, or
effective means of adjudication were not guaranteed in proceedings before the
national courts. If the Tribunal retries a case which has already been tried before a
national court and resulted in a prison sentence, in imposing its own sentence, the
Tribunal must take into account the extent to which the sentence imposed by the
national court has already been served.
The actual power of the Tribunal to enforce its will is established by Article 19
providing for the issuance of orders and warrants and Article 29 mandating the
compliance and cooperation of member states of the United Nations with the Statute
and the orders and requests of the Tribunal. The member states are to cooperate in
the identification and location of persons, the arrest and detention of indictees or
suspects, the taking of testimony and gathering of evidence, the service of
documents, and the surrender or transfer of the indictee or suspect to the Tribunal.

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The special status and the privileges and immunities of the Tribunal as an
international organization under the auspices of the United Nations is established
under Article 30. The judges, Prosecutor and Registrar are accorded the status of
diplomatic envoys. The other staff of the Prosecutor and the Registrar enjoy the
status accorded to officials of the United Nations.
The expenses of the Tribunal are to be borne by the regular budget of the United
Nations in accordance with Article 17 of the Charter of the United Nations. See
below for a discussion of the particular financial situation of the Tribunal.
Principles of fairness and justice, reflecting a consensus derived from both
common-law and civil-code systems, govern the procedures for the indictment and
trial, rights of the accused, the rights of the victims and witnesses, the maximum
penalty, the appeals and review procedures and the enforcement of the sentence.
There are provisions generally for a fair indictment process with representation for
the accused and a fair and expeditious trial (Articles 18, 19 and 20). Rights are
guaranteed to the accused, including the right to a public hearing, the presumption
of innocence (Article 21:3), the right to a speedy trial (Article 21:4(c)), the right to
counsel (Article 21:4(b, d)), the right to be present at his trial and to examine
witnesses against him (Article 21:4(d, e)), the right against self-incrimination
(Article 21:4(g)) and the right to have interpreter and translator services in a
language he can understand if he is not proficient in the official languages of the
Tribunal (Article 21:4(a, f) and Article 18:3). Protections for victims and witnesses
include closed hearings and the protection of the victim's identity (Article 22).
The Tribunal is authorized to impose sentences and penalties on the convicted,
including the return of confiscated property (Articles 23 and 24). The maximum
penalty available under the Statute is life imprisonment; the Tribunal is not
authorized to impose the death penalty (Article 24). Either the convicted defendant
or the Prosecutor may appeal the decision of the Tribunal on the grounds that (1) an
error on a question of law invalidates the decision or (2) an error of fact has caused
a miscarriage of justice (Article 25). The Appeals Chamber may affirm, reverse, or
revise the decision of the Trial Chambers. Either the convicted defendant or the
Prosecutor may ask for review of the decision of the Tribunal on the grounds that a
new fact has come to light which was not known at the time of the trial or the appeals
proceeding and which could have been a decisive factor in the decision (Article 26).
A sentence of imprisonment shall be served in a country selected by the
Tribunal from a list of countries that are willing to incarcerate convicted persons
(Article 27). The incarceration shall be in accordance with the law of that country
governing incarceration, subject to the supervision of the Tribunal. If a convicted
person is eligible for pardon or commutation under the laws of country where he is
incarcerated, that country shall notify the Tribunal and the President of the Tribunal,
in consultation with the other judges, shall decide the matter (Article 28).
The Statute provides for the seat of the Tribunal to be at the Hague (Article 31),
makes English and French the official working languages (Article 33), and requires
the submission of an annual report to the Security Council and General Assembly
(Article 34).

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Rules of Procedure and Evidence.16 The Rules of Procedure and Evidence
[hereinafter Rules] for the Tribunal elaborate on the general principles established
in the Statute. A summary of the most significant features of the Rules follows
below. Most notable are the provisions concerning arrest warrants and the
cooperation of countries with the Tribunal in the arrest and transfer of indictees and
other suspects, and also the protections for the accused and for victims and
witnesses. The judges drafted and adopted the Rules by February 11, 1994, pursuant
to Article 15 of the Statute of the International Tribunal. These Rules became
effective on March 14, 1994. They establish a significant precedent for any
permanent International Criminal Tribunal by demonstrating a consensus on a
workable set of rules for the operation of the ad hoc Tribunal. One of the concerns
about establishing a permanent Tribunal has been the perceived difficulty of drafting
rules that would be acceptable to nations with differing legal traditions and concepts.
The Rules are organized into nine parts: (1) General Provisions; (2) Primacy of
the Tribunal; (3) Organization of the Tribunal; (4) Investigations and Rights of
Suspects; (5) Pre-Trial Proceedings; (6) Proceedings before Trial Chambers; (7)
Appellate Proceedings; (8) Review Proceedings; and (9) Pardon and Commutation
of Sentence.
Perhaps the most important rules concern the obligation of states to cooperate
with the Tribunal in the arrest of indictees. Even if a nation has implemented the
necessary measures to cooperate with the Tribunal, under the Statute and rules of the
Tribunal, an arrest warrant must be transmitted from the Tribunal to a national
government. An indictment alone does not compel a state to apprehend and turn
over an indictee who is in its jurisdiction to the Tribunal. However, once the
Tribunal issues an arrest warrant and officially communicates it to the state believed
to have jurisdiction over the indictee, the receiving state is obligated to act promptly
and with due diligence to execute the arrest warrant (Rule 56 reinforcing Article 29
of the Statute) and to surrender or transfer the accused to the Tribunal (Rules 57 and
58 pursuant to Article 29 of the Statute). The obligation to transfer an indictee to the
Tribunal supersedes any prohibition or restriction on transfer under the national laws
or extradition treaties of the country concerned. If a country is unable to execute an
arrest warrant, it shall report this to the Registrar with the reasons for non-execution.
If such a report is not made within a reasonable time after transmission of the arrest
warrant, the inaction shall be deemed a failure to execute the warrant and the
Tribunal may report this inaction to the Security Council (Rule 59). The Tribunal
may transmit a notice to the national authorities of a country to be published in
national newspapers to inform the indictee that service of the indictment against him
is sought (Rule 60).
16Rules of Procedure and Evidence, U.N. IT, U.N. Doc. IT/32 (1994); Amendment of Rule
96 concerning Evidence in Cases of Sexual Assault, reprinted at 33 I.L.M. 838 (1994);
Amendment of Rule 70 concerning Matters not Subject to Disclosure, reprinted at 33 I.L.M.
1619 (1994). Other amendments are summarized and described in the 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, U.N. GAOR, 50th Sess., Item 49 of the Provisional Agenda, U.N. Doc. A/50/365 and
U.N. SCOR, U.N. Doc. S/1995/728 (1995) [hereinafter Second Annual Report of the
Tribunal].

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When the whereabouts of an indictee are unknown or when an indictee
attempts to evade arrest by fleeing the jurisdiction of the state that has received an
arrest warrant, an international arrest warrant may be necessary. Under Rule 61 of
the Rules of Procedure and Evidence, the Tribunal holds public hearings to review
an indictment and the evidence supporting it and also the efforts that have been made
to serve the indictment on the indictee and to arrest him. If the indictment is
confirmed and the Tribunal is satisfied that the Prosecutor has taken all available
actions to gain custody over the indictee, the Tribunal may issue an international
arrest warrant which is universally binding on all member nations of the United
Nations. It serves notice internationally that the indictee is wanted by the Tribunal
for trial on war crimes and that any member nation, in whose jurisdiction the indictee
is found, is obligated to arrest the indictee and turn him over to the Tribunal. If the
Prosecutor convinces a Trial Chamber that failure to effect service of an indictment
was due to a nation's failure or refusal to cooperate with an arrest warrant, the Trial
Chamber shall certify this lack of cooperation. The Tribunal shall then notify the
Security Council of a nation's failure to cooperate. The Security Council may then
take such action as it deems necessary in the interests of international peace and
security under Chapter VII of the United Nations Charter to enforce cooperation.
Although neither the Statute of the Tribunal nor the Rules of Procedure and
Evidence authorize plea bargaining, immunity, or amnesty, the Tribunal may
consider the substantial cooperation with the Prosecutor by the convicted person
before and after conviction in determining the sentence and any later commutation
of the sentence or pardon (Rules 101(B)(ii) and 125).
Some other salient features of the Rules include:
! the provision for informing the suspect of his rights, similar to the rights
commonly referred to as "Miranda rights" in the United States (Rule 42);
! the provision for audio- or video-recording of questioning of a suspect by the
Prosecutor (Rule 43);
! in case of urgency, the Prosecutor may request a country to arrest a suspect
provisionally, seize evidence, and take all necessary measures to prevent the
escape of a suspect, intimidation or injury of a victim or witness, or the
destruction of evidence (Rule 40);
! the disclosure by the Prosecutor of exculpatory evidence tending to show the
innocence or mitigate the guilt of the indictee;
! the ability of the Tribunal to authorize special measures for the protection of
victims and witnesses, including expunging of identifying information from
the public record of proceedings and closed sessions (Rule 75);
! the ability of a judge in the Trial Chamber to append a separate or dissenting
opinion (Rule 88);
! the requirement that witnesses take an oath to tell the truth (Rule 90);
! the ability of the Trial Chamber to direct the Prosecutor to investigate and
prepare an indictment for perjury and to impose a penalty for a perjury
conviction (Rule 91);
! attorney-client privilege (Rule 97);
! a rape-shield evidentiary rule (Rule 96), which provides that corroboration of
the victim's testimony is not required, consent is not allowed as a defense in

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certain circumstances of intimidation, and prior sexual conduct of the victim
shall not be admitted in evidence.
In addition to the Rules of Procedure and Evidence, the Tribunal has also
promulgated Rules on Detention and issued a Report on the assignment of defense
counsel to indigent defendants and a Directive on the assignment of defense
counsel.17
Composition.18 There are three main divisions of the Tribunal, the judicial
Chambers, the Office of the Prosecutor and the Registry. The structure and
organization of the Tribunal is established by Articles 11 to 17 of the Statute of the
Tribunal and by Part Three, Rules 14 to 38 of the Rules of Procedure and Evidence
of the Tribunal. The Report of the Secretary-General, pursuant to Security Council
Resolution 808 concerning specific proposals for the establishment of the Tribunal,
elaborates on and clarifies the provisions of the Statute.
Security Council Resolution 827 established the International Tribunal for the
Former Yugoslavia in 1993 and, separately, Security Council Resolution 95519
established the International Tribunal for the Prosecution of Persons Responsible for
Genocide and other Serious Violations of International Humanitarian Law committed
in Rwanda or committed in neighboring States by Rwandans during 1994. However,
it should be noted that under articles 12:2, 14, and 15:3 of the Statute of the
International Tribunal for Rwanda, annexed to Security Council Resolution 955, the
International Tribunal for Rwanda shares the members of the Appeals Chamber, the
chief Prosecutor and the Rules of Procedure and Evidence (with appropriate
modifications) with the International Tribunal for the Former Yugoslavia. Although
the two Tribunals share the same Appeals Chamber, they do not have the same
President. Article 13 of the Statute for the International Tribunal for Rwanda,20
unlike Article 14 of the Statute for the International Tribunal for the Former
Yugoslavia, does not require that the President of its Tribunal be a member of the
Appeals Chamber, although since rotation apparently remains an aspect of Chamber
procedure, it is possible that its President would rotate into the Appeals Chamber.
The following descriptions of the composition and jurisdiction of the International
17Rules covering the detention of persons waiting trial or appeal before the Tribunal or
otherwise detained on the authority of the Tribunal, U.N. IT, U.N. Doc. IT/38/Rev.4 (1995);
Report on the assignment of counsel, U.N. IT, U.N. Doc. IT/59 (1994) and Directive on
assignment of defense counsel, U.N. IT, U.N. Doc. IT/73/Rev.1 (1994).
18In addition to the Statute of the Tribunal and the Rules of Procedure and Evidence, some
of the information regarding persons who are Tribunal officers was drawn from the 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, U.N. GAOR, 49th Sess., Agenda Item 152, U.N. Doc. A/49/342 and
U.N. SCOR, U.N. Doc. S/1994/1007 (1994) [hereinafter First Annual Report of the
Tribunal]; and Commission on Security and Cooperation in Europe [Helsinki Commission],
Prosecuting War Crimes in the Former Yugoslavia: An Update, June 24, 1994, and June
1995 [hereinafter Helsinki Commission Tribunal Updates].
19S.C. Res. 955, U.N. SCOR, 3453rd mtg., U.N. Doc. S/RES/955 (1994).
20The Statute for the International Tribunal for Rwanda is in the Annex to Security Council
Resolution 955, supra note 20.

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Tribunal for the Former Yugoslavia do not necessarily apply in every respect to the
International Tribunal for Rwanda.
Judges. The trials of the indictees, any appeals, and any other hearings relevant
to the proceedings are to be conducted by eleven independent judges, of whom no
two may be nationals of the same state, sitting in the courts, called judicial
"Chambers" by the Statute. The chambers consist of two Trial Chambers with three
judges in each and the Appeals Chamber with five judges. The judges should have
the highest qualifications of their profession, sufficient to qualify them for the
highest judicial offices in their respective countries. Consideration should be given
to experience in criminal law and international law, including human rights and
international humanitarian law. The Secretary-General invites nominations from
member states and from non-members maintaining permanent observer missions at
United Nations Headquarters. Within 60 days, each state submits the names of up
to two nominees, not from the same state. The Security Council then selects 22 to
33 candidates to submit to the General Assembly, which then elects 11 judges from
the list. The judges serve for a term of 4 years under the same terms and conditions
as those for judges of the International Court of Justice and may be re-elected.
The judges elect a President and a Vice-President of the Tribunal for a term of
2 years; they may be re-elected once. The President shall be a member of the
Appeals Chamber and preside over the appellate proceedings. He shall assign
judges; each would serve in only one chamber. The Vice-President may sit as a
member of the Appeals Chamber or of a Trial Chamber. Each Trial Chamber panel
elects a presiding judge who conducts all the proceedings of that Trial Chamber as
a whole. The judges shall rotate on a regular basis among the chambers. Within the
judicial organ of the Tribunal, aside from the Chambers, there is an internal body
called the Bureau which is composed of the President, Vice-President, and Presiding
Judges of the Trial Chambers, and which consults on major issues of the functioning
of the Tribunal. The President shall assign for each month one judge from each Trial
Chamber as the judges to whom indictments are transmitted for review prior to
confirmation and the issuance of any necessary warrants and orders.
The President of the Tribunal is Gabrielle Kirk McDonald of the United States.
The other judges are from Guyana, Italy, France, Britain, Zambia, Colombia, Egypt,
Portugal, Malaysia and China.
The Office of the Prosecutor. The Prosecutor is "responsible for the
investigation and prosecution of persons responsible for serious violations of
international humanitarian law committed in the territory of the former Yugoslavia
since 1 January 1991," according to Article 16 of the Statute. The Prosecutor is
independent and does not act under the direction of any government or any other
organization or body.
The Report of the Secretary-General on proposals for the International Tribunal
envisioned the division of the Office of the Prosecutor into an investigation unit and
a prosecution unit. According to the First Annual Report of the Tribunal for 1993-
1994 and the Second Annual Report of the Tribunal for 1994-1995, the Office
actually comprises four sections employing 140-odd staff members. These include:
(1) the Investigations Section, composed of investigators, lawyers, intelligence

CRS-14
analysts, advisors and support staff, responsible for conducting investigations,
including those in the field;21 (2) the Prosecution Section, composed of trial
advocates, legal advisors/researchers and support staff, responsible for review of
briefs submitted by the Investigations Section, finalization of indictments and actual
presentation of cases before the judges; (3) the Legal Services Section comprising
specialists on international law, gender law, criminal law, comparative law, and legal
assistants; and (4) the Administration and Records Section, responsible for the
computer systems of the Office and the handling, processing and filing of all
material, evidence, statements and other records received or generated by the Office.
In addition to these sections, there is a Prosecutor's secretariat which provides
support and advice on a wide range of issues from legal to administrative and media-
related. The Office of the Prosecutor is also establishing field liaison offices in
Belgrade, Sarajevo, and Zagreb. A notable development is the appointment of a
special legal advisor for gender-related crimes, to ensure the appropriate handling of
the many allegations of sexual assault.
The organization of the Office of the Prosecutor is governed by Article 16 of
the Statute and also by Rules 37 and 38 of the Rules of Procedure and Evidence. The
Security Council shall appoint the Prosecutor upon nomination by the Secretary-
General. The Prosecutor must be of high moral character and have the highest level
of competence and experience in the conduct of investigations and prosecutions of
criminal cases. The term of office is four years and the terms and conditions of
service are the same as those of an Under Secretary-General of the United Nations.
The Deputy-Prosecutor and other staff of the Office of the Prosecutor are appointed
by the Secretary-General upon the recommendation of the Prosecutor. Qualified
staff are to meet rigorous criteria of professional experience as investigators,
prosecutors, criminal lawyers, law enforcement personnel, or medical experts. Due
consideration is to be given to the appointment of qualified women in light of the fact
that the crimes involved include rape and sexual assault.
Retaining the appointed Prosecutor has proven to be difficult for the Tribunal.
The first Prosecutor, Ramon Escovar Salom resigned several months after
appointment to accept a cabinet position in the Venezuelan government. He was
succeeded by Richard J. Goldstone, a Justice on South Africa's highest Court and a
highly regarded jurist in the human rights realm. He was Chairman of the South
African Commission of Enquiry regarding the Prevention of Public Violence and
Intimidation, which revealed police violence and abuse and led to criminal
prosecutions. Goldstone's tenure is widely credited with establishing the credibility
and influence of the Tribunal. However, he had committed himself for only two
years, having taken a leave of absence from his post at the South African
Constitutional Court. He was succeeded on October 1, 1996, by Louise Arbour, a
Judge on the Ontario Court of Appeal in Canada and a former vice-president of the
Canadian Civil Liberties Union, who was appointed by the Security Council on
21Initially, there was a Special Advisory Section, composed of experts in international law,
military law, former Yugoslavian law, and background information for the Balkans, who
were to advise the Investigations and Prosecution Sections. The experts in this section were
reassigned to the Strategy Team within the Investigations Section, where they were mainly
needed. The new Legal Services Section was created to replace the Special Advisory
Section.

CRS-15
February 29, 1996.22 The Deputy-Prosecutor, Graham Blewitt, formerly the Director
of the Australian War Crimes Prosecution Unit, has been with the Office of the
Prosecutor since February 1994, lending some continuity to the Office, the staff of
which includes personnel "seconded," i.e., on loan, from other sources.
The Registry. The Registry is responsible for the overall financial management
and administration of all parts of the International Tribunal for the Former
Yugoslavia and it consists of the Registrar and any required staff, according to
Article 17 of the Statute of the Tribunal. Rules 30 to 36 of the Rules of Procedure
and Evidence also govern the operations of the Registry. The Secretary-General
appoints the Registrar after consultation with the President, who in turn shall seek
the opinion of the other judges. The Registrar serves a term of 4 years and may be
reappointed. The terms and conditions of service are those of an Assistant Secretary-
General of the United Nations. The Deputy Registrar and other staff of the Registry
are appointed by the Secretary-General upon the recommendation of the Registrar.
Currently, Dorothée de Sampayo Garrido-Nijgh, formerly the Vice-President of the
Dutch Appeals Court in The Hague, is serving as the Registrar.
The various duties of the Registry specified in the rules include:
! making a full record of all proceedings of the Tribunal;
! taking the minutes of plenary meetings of the Tribunal and of the sittings of
the Chambers other than private deliberations;
! maintaining a Record Book which shall list all the particulars of each case
before the Tribunal and shall be open to the public;
! numerous other procedures related to various Tribunal procedures, ranging
from admission and assignment of defense counsel for indigent defendants to
procedures for the restitution of property and compensation to victims.
Additionally, the Report of the Secretary-General concerning proposals for the
organization of the Tribunal suggests that the duties shall include:
! public information and external relations with other organizations, states, and
the media and generally serving as the channel of communications to and
from the Tribunal (the Press and Information Service was created by the
Tribunal in June 1994 to handle these functions);
! conference-service facilities;
! printing and publication of all documents (including the Tribunal Handbook
and Manual for Practitioners);
! all administrative work, budgetary and personnel matters.
The Registry is also responsible for implementing the headquarters agreement
between the United Nations and the Netherlands to ensure the smooth operations of
the Tribunal in its host country. The Registrar chaired a task force in charge of the
infrastructure and logistics of the Tribunal including the design and security of the
courtroom. The Registry was also involved in the construction of detention facilities.
The appointment and termination of lower-level staff have been delegated to the
Registrar by the Secretary-General.
22S.C. Res. 1947, U.N. SCOR, U.N. Doc. S/RES/1047 (1996).

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In addition to the general administration of the Tribunal, Rule 34 provides for
the establishment of the Victims and Witnesses Unit under the Registrar consisting
of staff qualified to recommend protective measures for victims and witnesses and
to provide counselling and support for them, particularly in cases of rape and sexual
assault. As in the Office of the Prosecutor, due consideration is to be given to the
employment of qualified women. The purpose of the Unit is to provide assistance
to victims and witnesses during their involvement and cooperation with the Tribunal,
including psychological counselling and provision of housing at the seat of the
Tribunal, and after the trial to assure the protection and support of witnesses and
victims after they have returned to their home countries.
As noted above, the Registry is responsible for the assignment of counsel to
defendants who it determines are indigent upon the request of such defendants for
legal assistance. The Registrar has prepared, in consultation with the judges, a
directive governing the procedure for assignment, status and conduct of counsel; the
calculation and payment of fees; and the establishment of an advisory panel for the
assignment of counsel and composed of counsel selected by lot from the lists of
counsel drawn up by the Registrar and submitted by bar associations.
Financing23
After the establishment of the Tribunal, the U.N. General Assembly disagreed
on how to assess financing for the Tribunal. Some countries argued that since the
Tribunal was established by the Security Council, it should be financed like a
peacekeeping operation (where the U.S. share of the budget is over 30%). Others
(including the United States) argued that it should be financed from the U.N. regular
budget (where the U.S. share is 25%). The General Assembly decided (Resolution
47/235, September 14, 1993) to establish a separate assessed account outside the
regular budget, but whether the peacekeeping or regular budget scale of assessments
would apply remained unresolved until July 1995. The General Assembly invited
member countries and other interested parties to make voluntary contributions both
in cash and in the form of services and supplies.
The Tribunal's budget for calendar year 1993 was $276,200. For 1994 it was
$10.8 million. For 1995, the Tribunal's budget was $28.3 million. For calendar year
1996, the Tribunal's budget was $35.43 million. The Tribunal's 1997 budget was
$48.587 million.24 The Tribunal's 1998 budget is $64.216 million.
In addition, the Tribunal receives voluntary contributions of various kinds. A
number of governments have provided voluntary cash contributions as well as
contributions in kind of personnel and equipment. Various Netherlands ministries
have provided support in reconstruction of the Tribunal's premises, transport of the
accused, security, etc. As of July 15, 1997, more than $8.6 million had been
contributed as cash contributions by 22 countries. As of February 1998, the Tribunal
had 29 staffers seconded from several countries, and 22 legal assistants contributed
23Prepared by (name redacted), Analyst in Internati
onal Affairs, and (name redacted), Specialist in
European Affairs.
24ICTY Bulletin, no. 18. On ICTY website (http://www.un.org/icty)

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by the European Union. (For discussion of U.S. financial contributions to the
Tribunal, see below.) In July 1997, Great Britain offered $500,000 to build a second,
interim courtroom.
Recent Activities and Problems25
The Tribunal has faced several problems. One has been the lack of adequate
funding and resources. Although the Tribunal has received large increases in
funding and staff since its inception, Tribunal officials said these resources are not
keeping up with their accelerating workload, as the number of investigations,
indictments and trials increase. The Tribunal budget does not cover the costs of mass
grave exhumations, and the Tribunal issued an appeal to individual countries to fund
future efforts. The Tribunal has only one permanent courtroom, creating long delays
in bringing cases to trial. Two new courtrooms are scheduled to be completed in
April and May 1998. ICTY President Gabrielle Kirk McDonald told the U.N.
Security Council in March 1998 that in order to use the new courtrooms more
effectively, the Tribunal needs another trial chamber of three judges and a fourth
judge who could handle preliminary issues.
The gathering of evidence, both physical evidence from mass grave sites and
interviews with witnesses, has been impeded by the limited investigatory resources
of the Tribunal, and the lack of cooperation from Serbia-Montenegro and the
Republika Srpska.26 The Tribunal has had to maintain a difficult balance between
adequate protection of witnesses from intimidation and invasion of privacy,
particularly for the victims of rape, and the concern that excessive shielding of
prosecution witnesses will deprive the defense of the ability to mount an effective
case by questioning the sources of prosecution information. As of March 1998, only
one country had agreed to relocate witnesses. The Tribunal is seeking relocation
agreements with other countries.
There has been an ongoing concern about the ability of the Tribunal to obtain
personal jurisdiction over the indicted. At present, only 26 of the 74 indicted persons
are actually in the custody of the Tribunal. (A 27th person has been released
provisionally due to ill health. He must return to the Tribunal two weeks before his
trial is to begin.) This problem has been a source of friction between the Tribunal
and the states in whose jurisdiction the indicted persons may be found, and also
between the Tribunal and NATO-led peacekeeping forces in Bosnia. The Tribunal
has complained of a lack of cooperation from Serbian authorities in turning over
indictees under their jurisdiction and announced that it would formally complain to
the Security Council about a state's refusal to cooperate.27 The first indictee to go to
trial, Dusko Tadic, had fled to Germany where he was arrested after being
recognized by former victims. Although Germany offered full cooperation, the
25This section was prepared by (name redacted), Legislative Attorney, American Law
Division and (name redacted), Specialist in European Affairs, Foreign Affairs and National
Defense Division.
26Second Annual Report of the Tribunal, supra note 17, at ¶¶ 191-196.
27UN war crimes tribunal to protest to Security Council about Belgrade, Deutsche Presse-
Agentur, April 3, 1996, available in LEXIS, Nexis Library, Wires File.

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Tribunal's ability to proceed with the Tadic case was delayed by the necessity of
requesting the Germans to defer to the competence of the Tribunal and turn Tadic
over to it.
As discussed more fully in the section on IFOR/SFOR and the Tribunal in this
report, there has been confusion and disagreement between the Tribunal and NATO
over the exact nature of the role IFOR/SFOR should play in assisting the Tribunal
with its work. NATO has been concerned with "mission creep" which could
undermine IFOR/SFOR's primary mission of peacekeeping by expending time and
energy pursuing indictees and also possibly stirring up animosity against
IFOR/SFOR. IFOR/SFOR commanders have said that their forces would detain
indictees if they encountered them in the course of their duties.
On June 30, 1997, Tribunal prosecutor Louise Arbour said that in order to
increase the chances of seizing suspects, the Tribunal would no longer publicize its
indictments before making arrests. Ms. Arbour's announcement came four days after
Tribunal investigators arrested Slavko Dokmanovic in eastern Slavonia, Croatia.
Dokmanovic had been secretly indicted in April 1996 for war crimes committed in
Vukovar, Croatia in 1991. Serb sources said that Dokmanovic was arrested when he
showed up for a meeting with ICTY investigators to discuss his status. UNTAES,
the U.N. peacekeeping force in eastern Slavonia, provided support for the arrest, and
transferred Dokmanovic to the Tribunal. After the announcement, SFOR moved to
arrest two indictees in Bosnia, killing one in a shoot-out and arresting the other.
Both men had been earlier indicted secretly. SFOR has subsequently made several
other arrests. Eleven Croat suspects and five Serb suspects turned themselves in
voluntarily to the Tribunal. In April 1998, Ms. Arbour said that the main focus of
secret indictments will be those who exercised command authority over those
committing war crimes. She noted that these efforts are often more difficult and time-
consuming than trials of actual, low-ranking perpetrators of such deeds.
In December 1997, Arbour sharply criticized France for not moving to arrest
indicted war criminals (possibly including Karadzic and Mladic) in the SFOR section
that it controls, saying war criminals could feel "perfectly safe" there. Arbour also
criticized France for refusing to allow French military officers who served in U.N.
peacekeeping forces in Bosnia during the war to testify at war crimes trials.
Another problem has been national implementation of the Statute of the
Tribunal.28 Although the adoption of the Statute and the establishment of the
Tribunal creates a binding international obligation on the member states of the
United Nations to cooperate with and assist the Tribunal,29 and parties to the conflict
agreed under the Dayton Peace Accords and the Rome Implementation Agreement
to cooperate with the Tribunal,30 the national laws of a member state may require the
enactment of legislation specifically implementing the terms of cooperation with the
28See First Annual Report of the Tribunal, supra note 19, at 45.
29See S.C. Res. 827, supra note 7, at ¶ 4, and Statute, supra note 12, Article 29.
30Dayton Peace Agreement on Bosnia-Hercegovina, November 21, 1995, Republics of the
former Yugoslavia, Annex 6/Article XIII/¶ 4 and Annex 11/Article VI; Rome Agreed
Measures, February 18, 1996, Republics of the former Yugoslavia, ¶ 5.

CRS-19
Tribunal or the official adoption of administrative action by the executive branch of
a member state. Unless a member nation enacts any necessary legislation
authorizing the arrest, detention and surrender to the Tribunal of any of the indictees
found within its jurisdiction, it cannot effectively cooperate with the Tribunal. As
of March 1998, 20 countries had passed implementing legislation. While the
United States and other nations, including Croatia, have enacted implementing
legislation or taken other necessary domestic measures,31 some other nations,
including Serbia-Montenegro, have failed to take the necessary steps under their
national laws to enable cooperation with the Tribunal.32
One should also note that the criminal laws of a nation may authorize the
prosecution of war crimes as a domestic matter. In such a case, under Article 9 of
the Statute of the Tribunal, the Tribunal would have to request the national
authorities charged with enforcing their own criminal laws to defer to the Tribunal,
unless legislation implementing the Statute of the Tribunal required automatic
deferral to the Tribunal.
Because obtaining the arrest of the majority of the indictees has proven to be
difficult, there have been a number of Rule 61 proceedings to review the indictments
and issue international arrest warrants which then obligate each U.N. member nation
to arrest and transfer an indictee found within its jurisdiction.33 In July 1996, the
Tribunal issued international arrest warrants for Bosnian Serb leader Radovan
Karadzic and Bosnian Serb army commander Ratko Mladic.
Another recent issue is whether the Tribunal can issue subpoenas to countries
and individuals to appear before the Tribunal or turn over documents to it. Croatia
refused to comply with a subpoena issued by the Tribunal to turn over documents
relating to the links between Croatia and indicted war criminal Tihomir Blaskic
31The United States concluded an Agreement on Surrender of Persons Between the
Government of the United States and the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Law in the Territory of the
Former Yugoslavia, signed at the Hague, October 5, 1994, T.I.A.S. . It implemented the
Agreement and its obligations under the Statute of the Tribunal adopted in Security Council
Resolution 827 with the enactment of the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, § 1342, 110 Stat. 186, 486-87 (1996). Bosnia-Hercegovina
passed implementing legislation in 1995, Second Annual Report of the Tribunal, supra note
17, at ¶ 132. Croatia passed implementing legislation this year, Croats pass law on ties with
U.N. criminal court, Reuters World Service, April 19, 1996, available in LEXIS, Nexis
Library, Wires File.
32Iain Guest, War-Crimes Trials: the First Test, The Christian Science Monitor, March 13,
1996, at 19; Upper House Endorses Bill on Cooperation with War Crimes Tribunal, BBC
Summary of World Broadcasts, March 12, 1996. See also supra note 29 and accompanying
text.
33Hearing Resumes in Case of Serbian Officers Charged with War Crimes, Agence France
Presse, March 26, 1996, available in LEXIS, Nexis Library, Wires File; Arrests, Hearings
Bring New Impetus to War Crimes Tribunal, Agence France Presse, March 20, 1996,
available in LEXIS, Nexis Library, Wires File; War Crimes Tribunal Issues Arrest Warrant
for Martic, Agence France Presse, March 8, 1996, available in LEXIS, Nexis Library, Wires
File; Lack of Arrests Undercuts Tribunal; War Crimes: The U.N. Panel has made progress,
but support for it may ebb if trials fail to materialize, L.A. Times, March 2, 1996, at A14.

CRS-20
during the war. The Tribunal said that if the documents were not turned over,
Croatian Defense Minister Gojko Susak would be summoned to the court to explain
the refusal. Croatia replied the Tribunal has no authority to issue subpoenas to
countries or state officials operating in their official capacity, and asked the Tribunal
Appeals Chamber to block the subpoenas. On October 16, 1997, five men, current
and former officials in Muslim-held areas of Bosnia, were subpoenaed to testify at
the trial of two Bosnian Muslims and one Croat charged with war crimes. They
complied with the subpoenas and testified in the trial the following week. On
October 29, the Appeals Chamber, ruling on Croatia's complaint, said that the
Tribunal has no power to issue a subpoena to a country or state official. However,
the Chamber said that the Tribunal could issue a "binding order" to a state, and
inform the U.N. Security Council if the country fails to obey the order. The Security
Council could then take action against the state, if it wished to do so.
A future problem that will arise unless the Tribunal receives more cooperation
from governments is the imprisonment of convicted war criminals. Under the Statute
of the Tribunal, as noted above, imprisonment is to be served in a state chosen from
a list of states which have indicated their willingness to accept convicted war
criminals. In 1994, the Secretary-General of the United Nations sent a note inviting
all member-states to indicate their willingness. Additionally, the Tribunal sent a
letter in 1994 requesting 35 states to indicate their willingness, but only a few gave
a positive response.34 Most did not respond, some indicated an inability to help or
an inability to give a definite response, and the remainder indicated a willingness
only to imprison their own nationals or residents. A second letter was sent in 1995,
proposing less onerous commitments limited by time or by number of prisoners.
Only a few responded to the second letter; none of those responses were positive.
In May 1997, Finland signed agreements with the Tribunal agreeing to imprison
convicted war criminals, but said it would not take prisoners who would pose a high
security risk. Italy has signed a similar agreement with the ICTY.
U.S. Policy on the Tribunal
The United States has been a strong supporter of bringing Bosnian war
criminals to justice.35 In October 1992, the United States supported the
establishment of a U.N. commission to gather data on war crimes in the former
Yugoslavia. The United States contributed $800,000 to the effort as well as
information, advice and investigative help.36 It was also instrumental in the
establishment of the International Criminal Tribunal for the Former Yugoslavia in
May 1993.
In an October 1995 speech honoring the 50th anniversary of the Nuremberg
War Crimes Tribunal, President Clinton underlined his "strong support" for the war
34The Second Annual Report of the Tribunal, supra note 17, at ¶¶ 136-9.
35This section was prepared by (name red acted), Specialist in European Affairs.
36"Background: U.S. Contribution to the War Crimes Tribunals," unclassified State
Department memorandum, March 1996.

CRS-21
crimes tribunal for the former Yugoslavia. He said the goals of the Tribunal were
to punish those responsible for war crimes, to deter future war crimes, and to help the
former Yugoslavia "begin the process of healing and reconciliation." He rejected the
assertion that pursuing war criminals was incompatible with peace, saying that on
the contrary "no peace can endure for long without justice. For only justice can
finally break the cycle of violence and retribution that fuels war and crimes against
humanity."37
The United States has repeatedly pressed Serbia-Montenegro and Croatia to
surrender indicted war criminals on their soil, and force their clients in Bosnia to do
likewise. The United States supported linking the lifting of sanctions against Serbia-
Montenegro and the Republika Srpska (RS -- the Bosnian Serb entity within Bosnia-
Hercegovina) to cooperation with the Tribunal. According to U.N. Security Council
Resolution 1022 (November 1995), which suspended economic sanctions against
Serbia-Montenegro, the sanctions could be reimposed without a vote by the Security
Council if Serbia-Montenegro or the Bosnian Serbs do not fulfill their obligations
under the accords (including provisions on cooperation with the Tribunal), upon the
recommendation of the High Representative (who is in charge of coordinating
implementation of the civil aspects of the peace accord) or the commander of IFOR.
However, U.S. officials opposed a June 1996 request by Tribunal President Antonio
Cassese to re-impose sanctions, saying Milosevic needed more time to produce
results on the war criminals issue, but said it remained an option if Serb non-
compliance continued. Sanctions against Serbia-Montenegro were lifted after
Bosnia's September 1996 elections, in fulfillment of the terms of Resolution 1022.
After the U.N. sanctions against Serbia-Montenegro were lifted, U.S. officials,
with the support of the other Contact Group countries, have said that the "outer wall"
of sanctions against Serbia-Montenegro (including membership in and assistance
from international institutions) will not be lifted if it does not cooperate with the
Tribunal.38
The United States has also repeatedly pressured Croatia to cooperate with the
Tribunal, warning that failure to do so would hinder Croatia's integration into
Western institutions, a key Croatian policy goal. Secretary of State Albright says the
Administration is pursuing a "carrot-and-stick" approach toward international loans
to Croatia. The United States has postponed IMF and World Bank loans or tranches
of loans to Croatia in an effort to gain leverage over Croatian policy. In March 1997,
the United States abstained from an IMF vote on a $486 million loan to Croatia, as
a signal to Croatia to turn over Zlatko Aleksovski to the Tribunal. After Aleksovski
was sent to The Hague, the United States approved a $13 million World Bank loan
in June 1997. In July 1997, the United States forced the postponement of a $30
million World Bank loan and a $40 million tranche of the $486 million IMF loan to
Croatia. David Scheffer, U.S. envoy for war crimes issues, warned in September
1997 that the United States would continue to oppose bilateral and multilateral
economic assistance to Croatia until Zagreb gives its full cooperation to the Tribunal.
37"Remarks by the President At the Opening of The Commemoration Of '50 Years After
Nuremberg: Human Rights and the Rule of Law" White House transcript, October 15, 1995.
38"The International Tribunals for the Former Yugoslavia and Rwanda", State Department
background memorandum, undated (January 1996?).

CRS-22
He said Croatia could arrest Kordic and fellow indicted war criminal Ivica Rajic, if
it chose to do so. Prime Minster Matesa called Scheffer's demand to turn over
indicted war criminals "immoral," and vowed that Croatia would "never trade
anyone, nor shall we extradite our people for loans."
So far, the results of these U.S. efforts have been mixed. The greatest progress
has been with Croatia, which has taken grudging but substantial steps toward
cooperation with the ICTY. Tihomir Blaskic, a former senior Bosnian Croat military
commander living in Croatia, turned himself in to the Tribunal "voluntarily" in April
1996. Croatia arrested Zlatko Aleksovski in June 1996, but did not turn him over
to the Tribunal until April 1997, after another round of U.S. pressure. Perhaps the
greatest success for U.S. policy was the voluntary surrender to the Tribunal on
October 6, 1997 of 10 Bosnian Croats indicted for war crimes, including former
high-ranking Bosnian Croat leader Dario Kordic. Four days after the surrender of
the 10, the IMF released two tranches, totaling $78 million, of its loan to Croatia
The Croatian government said it did not plan to use the money, saying that its
economic situation was good enough to do without the funds.
U.S. efforts to secure the cooperation of Serbia-Montenegro and the Republika
Srpska have been less successful. Aside from Drazen Erdemovic, an RS soldier of
Croat ethnicity, Serbia-Montenegro has not turned over any suspects to the Tribunal.
Serbia-Montenegro offered some assistance in removing Radovan Karadzic from his
official posts. On July 17, 1996 after 10 hours of talks between Milosevic and U.S.
envoy Richard Holbrooke, Karadzic resigned as RS president and as chief of the
ruling Serbian Democratic Party (SDS). Karadzic pledged not to take any public role
in Bosnian Serb public life. However, during a power struggle between new RS
President Bijlana Plavsic and Karadzic supporters in 1997, Plavsic charged that
Karadzic had been guiding RS policy from behind the scenes. On November 9,
1996, Bosnian Serb President Biljana Plavsic fired Gen. Ratko Mladic as the Bosnian
Serb army commander. Plavsic said that international pressure prompted her decision
to depose Mladic, although other observers claimed the move was also prompted by
a long-running power struggle between Bosnian Serb civilian and military leaders.
Mladic rejected Plavsic's order to quit his post at first, but after a brief standoff, he
resigned on November 27, 1996. He remains at large.
U.S. policy appeared to make some headway against RS obstructionism after
the November 1997 RS parliamentary elections, during which hardliners lost their
majority in the assembly. At the urging of the United States and other Western
countries, Serb moderates and Croat and Muslim deputies of the new parliament
elected moderate Milorad Dodik as the new Bosnian Serb Prime Minister in
February. Dodik has promised to cooperate with the ICTY. Since his investiture,
the RS has not turned over any suspects to the Tribunal. Dodik claims that he
currently lacks the legal basis and the political strength to arrest suspects and send
them to the Tribunal. However, in April 1998 Tribunal President Gabrielle Kirk
McDonald said there had been a "marked increase" in RS cooperation with the
Tribunal, in particular that the RS had allowed Tribunal search warrants to be
executed on its territory in recent months. The political reverses suffered by
hardliners in the RS may have been one factor inducing five Bosnian Serb war
crimes suspects to surrender voluntarily to the Tribunal between January and April

CRS-23
1998. Another factor may have been the release for lack of evidence of three
Bosnian Croat suspects who had turned themselves in in October 1997.
The Administration has made the arrest and prosecution of war criminals part
of its exit strategy for U.S. troops in Bosnia. In December 1997, President Clinton
said that U.S. forces would stay in Bosnia as part of a NATO-led stabilization force
until certain benchmarks were achieved in peace implementation efforts. According
to the Administration, these benchmarks, when fulfilled, would create the conditions
for a self-sustaining peace in Bosnia, allowing U.S. troops to be withdrawn. Among
the ten benchmarks is that "the parties are cooperating with the ICTY in the arrest
and prosecution of war criminals."39
Financial Support
Administration officials note that the United States contributed more to the
Tribunal than any other country. In March 1998, U.S. war crimes envoy David
Sheffer said that the United States has provided $54 million in U.N.-assessed
contributions and more than $11 million in voluntary and in-kind contributions since
1992. The voluntary aid includes $3 million in services from 22 prosecutors,
investigators and other experts from the Department of Defense, the Department of
Justice and the FBI, the State Department, and the intelligence community. (Twenty-
one of these detailed U.S. personnel were later withdrawn from the Tribunal due to
a dispute over U.N. efforts to impose an "overhead charge" on the United States to
cover U.N. administrative costs associated with the detailees.)
The voluntary contributions include $450,000 in May 1997 to the Tribunal's
program to unearth mass graves.40 On December 16, 1997, the United States
announced that it would contribute $1 million to help build a new courtroom for the
ICTY. The Netherlands is also contributing to the construction of the courtroom.
On March 13, 1998, the United States announced a voluntary contribution of $1.075
million to the ICTY. $400,000 of the amount is earmarked to investigate possible
war crimes committed in the Kosovo region of southern Serbia. Another $400,000
is for additional translation capabilities and $275,000 will be allotted for review of
case files and training legal professionals in the region to support the "Rules of the
Road" process.
Intelligence Support
The United States voluntarily offered intelligence assistance to the Tribunal to
aid it in its investigations. However, on October 30, 1995, the chief prosecutor for
the Tribunal, Justice Richard Goldstone, sent a letter to the U.S. Embassy in the
Hague in which he reportedly described the "quality and timeliness" of information
supplied by the United States to the Tribunal as "disappointing." While stressing that
the United States was the Tribunal's "strongest supporter and most reliable friend,"
39 For a list of the benchmarks, see Certification of U.S. Armed Forces Continued Presence
in Bosnia and Hercegovina, March 4, 1998, 105th Congress, 2d Session, House Document
105-223.
40Congressional Record, July 11, 1997, S7314.

CRS-24
Goldstone reportedly said that most of the material the United States supplied was
from open sources and was not relevant to the 25 requests he had submitted.
According to the report, he added that the most useful information the U.S. has
supplied was aerial and satellite imagery of suspected mass grave sites near
Srebrenica that the United States showed to the U.N. Security Council in August
1995. Goldstone asked to receive more of this type of imagery, as well as alleged
communications intercepts that prove the complicity of Bosnian Serb army
commander Ratko Mladic and Yugoslav army leaders in the Srebrenica massacre.
(On the latter request, U.S. officials reportedly said they were unaware of any such
intercepts.)41 On November 7, 1995, White House spokesman Michael McCurry said
that certain types of intelligence information could not be shared with the Tribunal
for "national security reasons." However, State Department spokesman Nicholas
Burns appeared to reverse course a day later, saying the U.S. would provide "100%
cooperation" with the Tribunal, even if this meant the release of "national security
information," with the only restriction being for the U.S. to protect its sources.42
After a mid-November 1995 visit by Goldstone to the United States, the U.S.
agreed to devote more effort to identifying material of use to the Tribunal. U.S.
officials impressed on Goldstone the need for the Tribunal to be more specific in its
requests, so that U.S. agencies can respond more effectively.43 Secretary of Defense
William Perry said on January 24, 1996 that the U.S. intelligence community would
sift the large amounts of data on Bosnia that it had collected for other purposes and
deliver to the Tribunal information that might help it in its investigations.44 Admiral
Leighton Smith, regional commander of IFOR's air, sea and land forces, said on
February 1, 1996 that IFOR was flying daily reconnaissance missions over suspected
war crimes sites identified by the Tribunal, using JSTARS ground surveillance
aircraft, tactical reconnaissance assets and data from satellites to detect possible
efforts to tamper with the sites.45
U.S. officials have stressed that seeking out war criminals or monitoring
suspected war crimes sites is not a major part of U.S. intelligence efforts in Bosnia,
which are focused on force protection and monitoring compliance with the military
aspects of the peace agreement, the main mission of U.S. forces in Bosnia. Lt. Col.
Melissa Patrick, chief intelligence officer for the U.S. 1st Armored Division, told a
journalist in March 1996 that "probably none" of the indicted war criminals was
being tracked by U.S. intelligence assets because "there is no mission to find them.
The same thing for mass graves."46
41Washington Post, November 7, 1995, 19. For more on U.S. intelligence cooperation with
the Tribunal, see New York Review of Books, May 9, 1996, 10-15.
42Reuters news agency dispatch, November 8, 1995.
43"The International Tribunals for the Former Yugoslavia and Rwanda, State Department
background memorandum, undated (January 1996?).
44New York Times, January 26, 1996, 1.
45Transcript of press conference with Adm. Smith, Washington, DC, February 1, 1996.
46Washington Post, September 18, 1996,

CRS-25
The arrest of indicted Bosnian Serb war criminal Goran Jelisic by U.S. troops
on January 22, 1998 could signal stepped up U.S. intelligence efforts to locate
indicted war criminals, especially if additional arrest operations are contemplated.
IFOR, SFOR and the Tribunal
Controversy over the relationship of IFOR and its successor, SFOR, with the
Tribunal has centered mainly on two issues: detaining suspected war criminals and
providing security for war crimes sites. The Bosnian peace agreement makes no
direct mention of IFOR assistance to the War Crimes Tribunal, although it requires
the parties to the agreement to cooperate with the Tribunal. However, Assistant
Secretary of State John Shattuck noted at a House International Relations Committee
hearing on February 1, 1996 that the agreement permitted IFOR to carry out
additional duties and responsibilities established by NATO's North Atlantic Council
(Annex 1A, Article IV, Section 4), and that NAC directives permitted IFOR to detain
indicted war criminals. From the beginning of the operation, IFOR and SFOR
commanders have insisted that the force would apprehend indicted war criminals if
they should come across them in the course of their normal duties, but would not
conduct "manhunts" for them. They also underlined that IFOR had to focus on its
primary mission, separating the warring sides, and did not have the resources to
provide extensive assistance to the Tribunal, at least until the main military deadlines
under the peace agreement had passed and its troop deployment had essentially been
completed. They stressed that the Bosnian peace agreement assigns responsibility
for cooperation with the Tribunal to the parties themselves, not to IFOR or SFOR.
However, in recent months, SFOR has started to interpret its mandate on the issue
of war criminals in a more active manner. Since July 1997, SFOR has seized six
indicted war criminals and transferred them to the ICTY. A seventh was killed while
resisting arrest.
Detention of Suspected War Criminals
Despite statements by IFOR and SFOR spokesmen and U.S. officials that
peacekeepers would arrest war crimes suspects if they came across them in the
course of their normal duties, there have been many press reports of occasions where
IFOR/SFOR troops allegedly came across Karadzic and other indicted war criminals
and did not make arrests. IFOR handed two suspected war criminals over to the
Tribunal, but not ones who had been originally detained by IFOR. In late January,
Bosnian Federation police arrested as suspected war criminals a group of Bosnian
Serb officers who accidently crossed into Federation territory. None of the officers
had been indicted by the Tribunal. On February 12, 1996, at the request of the
Tribunal, IFOR transported two of the officers, Bosnian Serb Gen. Djordje Djukic
and Col. Aleksa Krsmanovic, to the Tribunal in The Hague for investigation. The
arrests by Federation police caused a brief break in relations between IFOR and the
Bosnian Serb military. In order to provide more certainty in arrest procedures,
Assistant Secretary of State Richard Holbrooke negotiated an agreement with the
Federation on the "rules of the road" for arrests. Under the rules, the Federation
would provide names and information concerning war crimes suspects to the Hague.
If it wanted to arrest or indict a suspect, an order must be reviewed by the Tribunal
and deemed consistent with international legal standards.

CRS-26
In May 1996, IFOR and the ICTY agreed to a memorandum of understanding
on IFOR-ICTY cooperation. The details of the memorandum have not been released,
but press reports say they involve legal and technical issues of detaining suspects and
transporting them to the Tribunal, including access to lawyers and conditions of
detention. They also reportedly lay out how IFOR assists Tribunal investigators at
war crimes sites. The terms of the memorandum reportedly merely codified actions
that have already been taken by IFOR and the Tribunal in recent months.47 Over the
12 months of IFOR's mission, concern increased about the failure to bring indicted
war criminals to justice. Before leaving his post as chief Tribunal prosecutor in
September 1996, Richard Goldstone sharply criticized IFOR's unwillingness to arrest
accused war criminals. He said the Tribunal had been failed by "politicians" who
have conducted "a highly inappropriate and pusillanimous policy in relation to
arrests." He said that the failure to arrest Karadzic and Mladic "could prove a fatal
blow to this tribunal and to the future of international justice."48
On July 10, 1997, SFOR took its first action to arrest indicted war criminals.
British SFOR soldiers (who press accounts claimed were elite SAS commandos
brought into Bosnia, trained for the purpose and placed under SFOR command)
arrested Milan Kovacevic without incident at a hospital in Prijedor. The British
force also tried to arrest Simo Drljaca at another location on the same day. Drljaca
opened fire on the British troops, wounding one soldier. Drljaca was cut down in a
hail of bullets when the troops returned fire, and later died of his wounds. Both men
had been secretly indicted by the Tribunal for war crimes committed in the Prijedor
region in 1992. U.S. troops provided logistical backup for the operation, but did not
participate in the arrest.
On December 18, 1997, Dutch SFOR troops captured two Bosnian Croat
indictees, Vlatko Kupreskic and Anto Furundzija. Kupreskic opened fire during the
arrest attempt, and was seriously wounded by return fire by the Dutch contingent. He
later recovered after receiving emergency surgery for his wounds. Furundzija was
arrested without incident. On January 22, 1998, U.S. SFOR troops conducted their
first arrest of an indicted war criminal, seizing Bosnian Serb Goran Jelisic outside
his home in Bijeljina. On April 8, 1998, British SFOR troops seized two Bosnian
Serb indictees, Mladen Radic and Miroslav Kvocka, near Prijedor. Jelisic, Radic and
Kvocka offered no resistance. SFOR's more aggressive interpretation of its mandate
may also have played a role in the voluntary surrender of 10 Bosnian Croat suspects
in October 1997 and five Bosnian Serbs in the past few months.
It is unclear whether SFOR will undertake an operation to seize perhaps the
most wanted indicted war criminal, Radovan Karadzic. SFOR commanders
reportedly remain leery about a possible operation to seize Karadzic, fearing that
resistance from his heavily-armed bodyguard could lead to casualities among an
arresting force. French forces, which control the sector in which Karadzic reportedly
lives, have allegedly been especially reluctant to undertake the operation. A April
23, 1998 article in the Washington Post quoted unnamed U.S. officials as saying a
French officer divulged NATO operational plans to Bosnian Serb leaders that caused
47Reuters wire service dispatches, May 9, 1996.
48Reuters news agency dispatch, September 17, 1996.

CRS-27
SFOR to call off an operation to snatch Karadzic in summer 1997. The article quotes
a senior U.S. official as saying the "dispicable and appalling" episode destroyed trust
between U.S. and French military forces in Bosnia, and that the United States has
halted virtually all consultations with France over the capture of indicted war
criminals. France said that while the actions of the officer in question "may have
appeared questionable," he acted without authorization, and did not in any case
compromise an operation against Karadzic.
However, SFOR's arrest of other suspects, including the killing of one of them
and the wounding of another, as well as SFOR's increased monitoring of special
police charged with protecting Karadzic, may be encouraging Karadzic to consider
a voluntary surrender. Persistent press reports in recent months have claimed that
Karadzic has conducted talks with the ICTY over conditions for a voluntary
surrender to the Tribunal, and has consulted with his attorneys about a possible
defense. In addition, international High Representative Carlos Westendorp, ICTY
Prosecutor Louise Arbour, SFOR commanders and other leading officials have
expressed confidence that Karadzic will stand trial in the Hague, although they have
not publicly offered evidence to support their optimism. Press reports in April 1998
indicate that Karadzic has abandoned his home in Pale, but disagree on where he has
gone.

Security for War Crimes Sites
On January 22, 1996, Justice Goldstone met with Adm. Smith to discuss
cooperation between IFOR and the Tribunal. A joint statement released at the end
of the talks said that Adm. Smith "is satisfied that IFOR will be able to provide
appropriate assistance, at the appropriate time, to ensure area security for Tribunal
teams carrying out investigations and activities at mass grave sites." Adm. Smith
agreed to "have a Tribunal official liaise with IFOR." He also agreed with a request
by Justice Goldstone to avoid public discussion of details of Tribunal requests for
IFOR assistance. According to the statement, Justice Goldstone said he was
"satisfied with the level of support offered by Adm. Smith, and agreed that IFOR
support should be provided within the limits of its mandate and available
resources."49 Adm. Smith later said that IFOR would not guard individual grave
sites. He added that he could foresee providing Tribunal investigators with IFOR
liaison officers so that "if they do get in trouble they can call us and we can respond."
He said he would prefer to have local police guard the sites, perhaps as part of a joint
Federation-Republika Srpska force, monitored by U.N. police monitors.50
The first investigations at war crimes sites by Tribunal teams occurred in
early April 1996. IFOR provided "area security" for the investigators. While the
investigators did not receive armed escort at the sites, IFOR liaison officers with
communications equipment joined the investigators, so that they could call on
heavily armed IFOR soldiers to come to their assistance in the event of trouble. The
investigators slept and ate at a U.S. Army base camp near the site. Col. John Batiste,
49"Joint Statement — COMIFOR and Chief Prosecutor International Tribunal on War Crimes
for the Former Yugoslavia," January 22, 1996.
50Transcript of press conference with Adm. Smith, Washington, DC, February 1, 1996.

CRS-28
commander of the 2nd Brigade of the U.S. First Armored Division said his forces
would not clear mines from grave sites, although Adm. Smith said IFOR would
provide investigators with information on possible minefields in the area.51

Despite statements by IFOR spokesmen that the Bosnian Serbs would be
unlikely to tamper with mass grave sites, there are several reports that they have
done so. In January 1996, press reports indicated that Bosnian Serbs may have dug
parts of the Ljubija war crimes site, and poured acid on some of the corpses to
prevent identification.52 In April 1996, a journalist who had earlier visited and
written on war crimes sites in eastern Bosnia returned to two of them and found that
they had been dug up.53 During the first investigations of war crimes sites by
Tribunal teams in April 1996, investigators found evidence that several sites had
been tampered with, according to U.S. Army Major Danial Zajac, who was providing
security for the investigators.54 However, while not denying that tampering may have
occurred, a NATO spokesman later said that a re-examination of reconnaissance
photos of the areas since January showed that tampering did not take place on IFOR's
watch.55 On April 19, 1996, Adm. Smith said that if IFOR saw a war crimes site
being tampered with in the future, it could, at the request of the Tribunal, guard the
site on a temporary basis until the Tribunal itself could assume responsibility for
security of the site, provided that such a task would not interfere with IFOR's
primary military missions.56 In September 1997, Tribunal experts said two more
mass graves, at Pilica and Lazete, had been tampered with before their excavations
had begun.
In July 1996, Tribunal teams began a three-month mission to exhume corpses
from 20 war crimes sites in Bosnia and Croatia. The first sites to be excavated were
in the Srebrenica area. IFOR provided the promised area security, but did not guard
the sites. Instead, the Tribunal surrounded the sites with barbed wire and hired
several local Serbs to guard the sites at night. Several local Serbs reportedly shouted
insults at the Tribunal team, but did not assault them. At a second site, U.S. IFOR
forces, perhaps concerned about the possibility of assaults on the team, posted an
anti-sniper unit and a few armored fighting vehicles near the site during the day.57
IFOR also used reconnaissance assets to monitor the remaining sites that the
Tribunal was to excavate in 1996. The Tribunal teams exhumed 400 to 500 bodies
at Bosnian war crimes sites in 1996. The Tribunal also unearthed more than 200
bodies at another war crimes site in eastern Slavonia, Croatia in September and
October 1996. Further exhumations in eastern Slavonia in June 1997 recovered
several dozen more bodies. Under SFOR protection, Tribunal experts excavated a
51Reuters news service, April 2, 1996 and transcript of press conference by Adm. Smith,
April 2, 1996.
52New York Times, January 11, 1996.
53Christian Science Monitor, April 3, 1996, 1.
54Reuters wire service, April 4, 1996.
55New York Times, April 15, 1996, 8.
56NATO press conference with Adm. Smith, April 19, 1996.
57Reuters news agency dispatch, July 22, 1996.

CRS-29
mass grave site near Brcko in July 1997, in order to find evidence against Goran
Jelisic and other Bosnian Serbs indicted for war crimes at the Luka detention camp
in 1992. SFOR provided security, liaison and logistical support for the ICTY
exhumation efforts in Bosnia.
In December 1997, SFOR provided security for an ICTY search of a municipal
building in Prijedor. The purpose of the search was not publicly disclosed. In April
1998, Tribunal experts began a new series of excavations of mass graves near
Srebrenica and found bodies and bullet casings. They also set that parts of the grave
sites showed evidence that tampering, including the covert removal of bodies.
Congressional Action
Since the start of the war in Bosnia, many Members have spoken strongly
against war crimes in the former Yugoslavia and have stressed the need to bring the
perpetrators to justice. Since the establishment of the Tribunal in 1993, Congress has
taken several steps to bolster the newly-created body's efforts. Section 548(e) of the
FY1994 Foreign Operations Appropriation Act (P.L. 103-87) authorized the
President to provide up to $25 million in commodities and services to the Tribunal.
Section 582 of the FY1996 Foreign Operations Appropriation Act (P.L. 104-107)
bans U.S. aid from the act to countries who knowingly harbor persons indicted by
the war crimes tribunal for the former Yugoslavia. It also requires the United States
to vote against assistance to those countries in multilateral bodies. Section 1342 of
the FY1996 defense authorization law (P.L. 104-106) provides the legal basis for the
extradition of indicted war criminals from the United States to the Tribunal in the
Hague.
The FY1997 Foreign Operations appropriation bill (H.R. 3540) permitted the
President to provide up to $25 million in commodities and services to the Tribunal.
Section 548 of the conference report for H.R. 3540 says the President is authorized
to withhold U.S. aid to countries to countries who knowingly harbor persons indicted
by the war crimes tribunal for the former Yugoslavia. It says the United States
"should" vote against financing from international financial institutions for any
country harboring indicted war criminals. The conference report on the bill was
incorporated into H.R. 3610, an omnibus spending bill. H.R. 3610 was passed by the
House on September 28, 1996 and the Senate on September 30. The President signed
H.R. 3610 on September 30, 1996 (P.L. 104-208).
Section 561 of the FY 1998 foreign operations appropriations measure (P.L.
105-188) authorizes the President to withhold funds under the act to countries
harboring war criminals and says he "should" vote against aid to such countries in
international financial institutions. Section 573 bars U.S. aid for any program in
which an indicted war criminal has financial or material interests, or in which an
organization affiliated with a war criminal participates. It also bans aid (other than
emergency food or medical assistance or demining aid) to any area of a sanctioned
country in which local authorities are not cooperating with the Tribunal or are not
allowing refugees to return to their homes. Section 573 allows the President to
waive the sanctions for six months if he certifies that a majority of the indicted war
criminals on the territory of a country have been turned over to the Tribunal. For the

CRS-30
purposes of the section, Bosnia and Hercegovina is not treated as one country; the
section is applied separately to the Republika Srpska and the Federation of Bosnia
and Hercegovina.
Another provision, Section 583, amends the War Crimes Act of 1996 (P.L. 104-
192) by allowing the United States to prosecute any war criminal located within its
borders, regardless of his or her nationality. The provision also expands the scope
and offers a more specific definition of what constitutes a war crime. The law also
permits the President to provide up to $25 million of commodities and services to
the Tribunal and requires the President to report on the steps the United States is
taking to collect information on war crimes and transmit them to the Tribunal.
Since December 1997, the Administration has executed several waivers of
Section 573 of the FY 1998 foreign operations appropriations law in order to provide
aid to the RS. Administration officials say the money will be spent in regions where
moderates, not hard-liners and war criminals, are in charge. They say that supporting
moderates like RS President Bijlana Plavsic and RS Prime Minister Dodik with
assistance is the best way to ensure implementation of the peace accords, including
the surrender of war criminals to the Tribunal. Skeptics say that aid to the RS should
wait until Plavsic and Dodik deliver on their promises. They also say that the Dodik
government contains figures who, while not currently on the list of those publicly
indicted by the Tribunal, may have committed war crimes.
IFOR/SFOR's participation in seizing suspected war criminals has been a matter
of debate in Congress. Some Members of Congress hailed the July 10, 1997 SFOR
operation to seize two indicted Bosnian Serb war criminals. On July 11, Senator
Feinstein, on the second anniversary of the atrocities committed by Bosnian Serb
forces in Srebrenica, also praised the NATO operation in a speech to the Senate. She
said that while the apprehension of indicted war criminals is "primarily the
responsibility of the governments of the former Yugoslavia, yesterday's action
illustrates the important role that SFOR has to play in this process as well... I can
think of no better way to honor the memory of Srebrenica than if today SFOR turns
over a new leaf, and vows to pursue its mandate vigorously and to the maximum
degree possible." During a July 15 press conference sponsored by the Coalition for
International Justice, Senator Lieberman and former Senator Robert Dole hailed the
SFOR operation and pressed President Clinton to support SFOR efforts to seize other
indicted war criminals. In remarks to the Senate on July 16, 1997, Senator Kerrey
said that peace could not take hold in Bosnian until war criminals are brought to
justice. He praised the operation and urged NATO to make additional raids to
capture indicted war criminals.
While some Members would like SFOR to take a more active stance in seizing
suspected war criminals, other Members (including those who were opposed to or
skeptical about sending U.S. troops to Bosnia in the first place) are opposed to such
a change in policy. After SFOR's operation to seize two Bosnian Serb war criminals
on July 10, the Senate passed by voice vote on July 15 Amendment 849 to S. 1005,
the FY 1998 defense appropriations bill. The amendment expressed the sense of the
Senate that "international efforts to bring indicted war criminals to justice in Bosnia
and Herzegovina consistent with the 1995 Dayton Accords should be supported as
an important element in creating a self-sustaining peace in the region."

CRS-31
The amendment also said the Administration "should consult closely with the
Congress" on efforts to bring indicted war criminals to justice consistent with the
Dayton accords as well as "consult closely and in a timely manner" with the
Congress on the NATO-led Stabilization Force's mission concerning the
apprehension of indicted war criminals, including any changes in the mission which
could affect American forces." Senator Hutchinson, one of the amendment's
sponsors (Senators Lott, Lieberman, McCain, Smith, Levin, Lugar and Warner also
sponsored the amendment), said that while she was concerned that war criminals are
not being brought to justice in Bosnia, she also warned that Congress should be
consulted if SFOR's mission were changed to include apprehending war criminals,
saying that such a task is not in the force's current mandate or in the Dayton accords.
She said the United States should learn from the U.S. experience in Somalia, "when
there was mission creep without the complete accord of Congress."
A previous amendment on the issue, submitted by Senators Hutchison and
Warner, was ordered to lie on the table. The sense of the Congress amendment
offered a harsher judgement on the arrest of war criminals by SFOR than the one
ultimately adopted by the Senate. It warned that efforts to apprehend war criminals
"could expose U.S. and NATO troops to direct combat action and ultimately
jeopardize the peacekeeping progress, to date, of U.S. and NATO forces in Bosnia."
It expressed the sense of the Congress that there should be no U.S. or NATO efforts
to seize indicted war criminals until Congress "has had the opportunity to review any
proposed change in policy and authorize the expenditure of funds for this mission."
Impact of the Tribunal on the Peace Process
The relationship of the Tribunal to the peace process in Bosnia has been a
controversial issue. Some observers believed that vigorous pursuit of war criminals
may hurt the peace process. They feared that the Bosnian Serbs could stop
implementing the peace accord or engage in acts of violence against peacekeepers.
This concern appears to be one reason why IFOR and, for at least the first six months
of its tenure, SFOR, have appeared reluctant to seize war crimes suspects.
However, more recently, a consensus appears to have emerged among U.S.
officials, and international officials on the ground in Bosnia that that the fact that war
criminals remained at large undermined the implementation of critical civilian
aspects of the peace agreement. In June 1997, a constitutional crisis erupted within
the Republika Srpska during a power struggle between RS President Plavsic and
fellow SDS members who support Karadzic. Plavsic attempted to fire RS Interior
Minister Dragan Kijac for obstructing an investigation into two Bosnian Serb
companies associated with Karadzic and Krajisnik, who Plavsic charges have been
engaged in massive corruption. Plavsic also charged that Karadzic continues to
control the SDS, the government and police from behind the scenes. Plavsic signed
a decree dissolving the pro-Karadzic parliament, while the parliament has voted to
strip Plavsic of key powers. The SDS leadership has expelled Plavsic from the party.
NATO leaders warned Karadzic supporters against using force against Plavsic. U.S.
and other Western governments backing Plavsic, who, while an extreme nationalist
like Karadzic, has shown some willingness to implement the peace agreement.

CRS-32
SFOR has assisted Plavsic in her power struggle by seizing television transmitters
used by hard liners to attack Plavsic and the international community. SFOR has
also helped pro-Plavsic police seize police stations in several areas. On August 8,
1997, SFOR announced that it will monitor the heavily armed RS “special police”
units that are a mainstay of Karadzic’s power and supply his bodyguard. Under
SFOR pressure, on August 15, the “special police” signed an agreement with SFOR
that it would no longer provide protection to indicted war criminals.
Western officials in Bosnia report that after Simo Drljaca was killed in a
firefight with SFOR troops who attempted to arrest him on war crimes charges in
July 1997, other Karadzic-installed hard-liners in Prijedor dropped out of sight,
providing an opportunity for relatively more moderate pro-Plavsic leadership to gain
the upper hand there.
In the longer term, some observers believe that a lasting peace is impossible in
Bosnia unless justice is done with respect to war crimes. They believe that the
recrimination can only give way to reconciliation if the desire to assign collective
guilt to another ethnic group and exact revenge is replaced by the desire to bring to
justice the individuals of all ethnic groups who committed the crimes.
One important problem has been the non-cooperation of Serbia-Montenegro.
Many analysts view Milosevic as the chief culprit in causing the war in Bosnia and
the organized war crimes known as "ethnic cleansing." Yet he was also instrumental
in bringing about the peace settlement and a key player in determining the success
or failure of the peace agreement. Serbia-Montenegro's non-cooperation is especially
evident in its refusal to turn over two Yugoslav Army officers indicted for war
crimes in Croatia. Indeed, one of them reportedly has been promoted since the
crimes were committed. In June 1996, Tribunal President Antonio Cassese called
on High Representative Carl Bildt (coordinator of the implementation of non-
military aspects of the peace accords) to triggering sanctions against Serbia-
Montenegro and the Republika Srpska for their lack of cooperation with the
Tribunal.58 However, the High Representative declined to do so, because of the
possible impact of the move on the peace process as a whole. U.S. officials
supported Bildt's stance on the issue. In July 1997, Bildt's replacement as High
Representative, Carlos Westerndorp, recommended to the U.N. Security Council
that the assets of indicted war criminals be identified and frozen.
In a disturbing echo of the beginnings of the conflicts in Croatia and Bosnia, in
late February and March 1998, a massive Serbian police operation in the Drenica
region of Kosovo (a reputed KLA stronghold) resulted in at least 67 deaths among
ethnic Albanians, as well as six Serbian police deaths, according to Serbian officials.
Albanian sources cite a higher death toll of about 83 persons. Press reports from
the scene after the operation strongly indicate that Serbian police committed
atrocities against civilians. In March 1998, ICTY Prosecutor Louise Arbour issued
a statement noting that the ICTY's mandate includes the former Yugoslavia as a
whole, including Kosovo.
58Agence France Press wire service report, April 25, 1996.

CRS-33
Questions and Implications for the Future
The U.N.- established war crimes tribunals for the former Yugoslavia and
Rwanda may turn out to be ad hoc institutions of no lasting consequence beyond the
specific situations for which they were created. Regardless of their longevity, U.S.
support for these two U.N. international criminal tribunals might have implications
for international law and the conduct of U.S. foreign policy which go beyond the
current situation in Bosnia. International legal and political experts believe that
support for the tribunals could set legal and political precedents that will have
implications in at lease three areas of international politics and law. Relevant areas
include a potential expansion of: (1) the overall power and prestige of the United
Nations; (2) the overall role of international law; and (3) the U.S. role in enforcing
international law. Areas of concern and questions include:
Powers of the United Nations
! Could the creation of these two tribunals significantly strengthen the United
Nations particularly with respect to international criminal law giving it
potential new powers and enhanced international prestige?
! Is expanding the U.N.'s power and claim to international legitimacy an overall
policy direction one seeks to promote?
! On the other hand, do constraints placed on the United Nations by the Charter,
including the veto given the five permanent members of the Security Council,
assure that U.S. interests will be adequately protected and assure that the
powers of the United Nations in this and other areas will remain limited?
Principles of International Law
! Do the tribunals constitute a new step in the evolution of international
criminal law or are they non-precedent-creating responses to unique situations
that may not recur?
! To what extent might the precedent of a standing and active international
court in one area of law pave the way for expanded U.N. court jurisdiction in
other legal areas, both criminal and civil?
! To what degree does support for the tribunal establish precedent for U.S.
funding of expanded tribunal activity in other parts of the world?
! Also, what would the relationship be between the current tribunals and any
new, but separate, international criminal court established within the U.N.
framework?

U.S. Role in Enforcing International Law
! How does an active U.S. presence on the courts and an active role in
supporting them promote or detract from overall U.S. foreign policy goals and
objectives? A strong U.S. presence on the court may not be popular in the

CRS-34
international community, yet a less-than-leading role may diminish U.S.
stature in the international community.
! Finally, to what extent are concerns of "mission creep" justified? If a U. N.
tribunal were to be given an expanded jurisdictional role would there be an
increasing call for U.S. intervention to provide a stable environment for the
tribunal to operate effectively, i.e. could the war crimes angle have the
ultimate effect of setting up the U.S. as a policeman for numerous conflicts
where the United States has little or no other foreign policy interests?
Arguably, hand-in-hand with a broad mandate for an active international war
crimes tribunal is the requirement for a policing power to enable the court to
operate effectively. On the other hand, are not U.S. policy makers savvy
enough to evaluate such situations on a case-by-case- basis and to resist such
pressures where the national interest may not warrant involvement?
Prepared by Raphael Perl, Specialist in International Affairs

CRS-35
Appendix 1: International Criminal Court For The Former
Yugoslavia Public Indictments
(Prepared by (name redacted) and (name redacted),
Foreign Affairs and National Defense Division, CRS)
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
11/01/94
Dragan Nikolic (Bosnian
For crimes relating to
at large; ICTY held
Serb camp commander)
treatment of prisoners at
hearings on Oct 9, 1995;
Susica prison camp (near
issued international
Vlasenica), from June-
arrest warrant on Oct 20,
Sept 1992
1995.
02/13/95
Dusan Tadic; Goran
For crimes relating to
Tadic arrested in
Borovnica (Bosnian Serb
murder and mistreatment
Germany in Feb 1994;
guards at Omarska camp)
of Muslim and Croat
extradited to the Hague
prisoners at Omarska
on Apr 24, 1995;
camp (near Prijedor), from pleaded not guilty on
May 24 to Aug 30, 1992
Apr 26, 1995; trial
began on May 7, 1996.
Convicted of war crimes
and crimes against
humanity on May 7,
1997; sentenced to 20
years imprisonment on
July 14. Borovnica at
large.
02/13/95
Zeljko Meakic (Bosnian
For crimes relating to
Kostic arrested in Italy
Serb camp commander);
treatment of Muslim and
on March 17, 1998, after
and 18 acting under his
Croat prisoners at the
he attempted to extort
authority: Miorslav
Omarska camp (near
money from a Catholic
Kvocka; Dragoljub Prcac; Prijedor), from May 25 to priest. Radic and
Mladen Radic; Milojica
Aug 30, 1992
Kvocka were arrested by
Kos; Momcilo Gruban;
SFOR on April 8, 1998.
Zdravko Govedarica;
Gruban; Predrag Kostic;
Nedeljko Paspalj; Milan
Pavlic; Milutin Popovic;
Drazenko Predojevic;
Zeljko Savic; Mirko
Babic; Nikica Janjic;
Dusan Knezevic;
Dragomir Saponja; Zoran
Zigic

CRS-36
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
06/26/95
Dusko Sikirica (Bosnian
For crimes relating to
Lajic arrested near
Serb camp commander);
treatment of Muslim and
Nuremberg, Germany,
and 12 acting under his
Croat prisoners at the
on Mar 18, 1996..
authority: Damir Dosen;
Keraterm camp (just
Germany transferred
Dragan Fustar; Dragan
outside of Prijedor), from
Lajic to the Tribunal on
Kulundzija; Nenad
May 24 to Aug 30, 1992
May 13. Charges
Banovic; Predrag
against Lajic were
Banovic; Nikica Janjic;
dropped in June 1996,
Dusan Knezevic; Dragan
after witnesses failed to
Kondic; Goran Lajic;
identify him as a guard
Dragomir Saponja;
at Keraterm. Zigic
Nedeljko Timarac; Zoran
surrendered voluntarily
Zigic
to the Tribunal on April
16, 1998. Others at
large.
Slobodan Miljkovic
For crimes relating to
Milan Simic and
06/29/95
(Bosnian Serb
"ethnic cleansing" and
Miroslav Tadic
paramilitary unit
terror campaigns against
surrendered voluntarily
commander); and 5 of his
Muslim and Croat
to the Tribunal on
officers:
residents around Bosanski February 14, 1998.
Blagoje Simic; Milan
Samac in the Posavina
Simo Zaric surrendered
Simic; Miroslav Tadic;
corridor, beginning in
voluntarily on February
Stevan Todorovic; Simo
April 1992
24, 1998. Simic was
Zaric
given provisional release
on March 26, 1998 for
reasons of ill health. He
must reappear at the
Tribunal two weeks
before his trial begins.
Others at large.
06/30/95
Goran Jelisic (Bosnian
For crimes committed
Jelisic was arrested by
Serb prison camp
against Croat and Muslim U.S. SFOR troops on
commander);
inmates at the Luka prison January 22, 1998. Cesic
Ranko Cesic (worked at
camp (near Brcko), from
at large.
Luka camp)
May 7 to early July 1992
07/24/95
Milan Martic
For crimes relating to
at large. ICTY held
(President of self-
rocket attacks on civilians hearings in late Feb
proclaimed Krajina Serb
in Zagreb on May 2-3,
1996; issued
Republic)
1995
international arrest
warrant on Mar 8, 1996.
Reportedly living in
Banja Luka in the
Republika Srpska.

CRS-37
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
07/24/95
Radovan Karadzic
For crimes perpetrated
at large. International
(President of Bosnian Serb against civilian
arrest warrants issued on
Republic);
populations and places of
July 11, 1996
Ratko Mladic (commander worship in Bosnia; for
of Bosnian Serb army)
crimes relating to sniping
against civilians in
Sarajevo; for crimes
relating to the taking of
U.N. peacekeepers as
hostages
09/05/95
Ivica Rajic (Bosnian Croat For crimes relating to
ICTY issued
militia leader)
attack on Stupni Do
international arrest
(central Bosnia) on Oct
warrant on Aug 29,
23, 1993
1995. Rajic was in
custody of Bosnian
Croat authorities in
Mostar, but was released
on Dec 5, 1995;
currently at large.
11/09/95
Mile Mrksic; Miroslav
For crimes relating to
Mrksic, Radic and
(Dokman
Radic; Veselin
mass executions at
Sljivancanin at large;
ovic was
Sljivancanin (JNA
Vukovar hospital during
Slavko Dokmanovic was
added to
commanders); Slavko
military takeover of
arrested by Tribunal
the
Dokmanovic
Vukovar, Croatia, in
investigators in eastern
indictmen
November 1991
Slavonia, Croatia on
t secretly
June 27, 1997, and
on March
transferred to the
26, 1996)
Tribunal. Dokmanovic's
trial began on January
19, 1998
11/10/95
Anto Furundzija (Bosnian For torture and rape of two Arrested without
(secret
Croat)
Muslim prisoners in Vitez incident by Dutch SFOR
indictmen
troops on December 18,
t, made
1998.
public
after
arrest)

CRS-38
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
11/13/95
6 Bosnian Croat political
For crimes against
Gen. Blaskic turned
and military leaders:
Muslims and ethnic
himself in to the
Tihomir Blaskic; Dario
cleansing in the Lasva
Tribunal on April 1,
Kordic; Mario Cerkez;
Valley in central Bosnia
1996. His trial opened
Ivan Santic; Pero
between May 1992-May
on June 24, 1997.
Skopljak; Zlatko
1993.
Aleksovski arrested by
Aleksovski
Croatian government on
June 8, 1996.
Transferred to the
Tribunal on April 28,
1997, after a delay
allegedly due to
Aleksovski's ill health.
Kordic, Cerkez, Ivan
Santic and Pero
Skopljak voluntarily
surrendered to the
Tribunal and entered a
plea of not guilty on
October 8, 1997. All
charges against Skopljak
and Santic were
dropped by the Tribunal
prosecutor due to a lack
of evidence on
December 19, 1997, and
they were released from
custody. Aleksovski's
trial opened on January
6, 1998.
11/16/95
Radovan Karadzic
For crimes against
at large
(President of Bosnian Serb Muslims during seizure of
Republic);
Srebrenica in July 1995
Ratko Mladic (commander
of Bosnian Serb army)
03/01/06
Djordje Djukic
For crimes relating to
Transferred, with Col.
(Bosnian Serb
shelling of Sarajevo
Aleksa Krsmanovic, to
commander)
between May 1992 and
the Hague by NATO on
Dec 1995
Feb 12, 1996 Ordered
released by the Tribunal
on Apr. 24, due to ill
health, but charges were
not dropped. Djukic
died in Serbia on May
18, 1996.

CRS-39
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
03/22/96
Zejnil Delalic, Hazim
For crimes against
Delalic arrested in
Delic, Esad Landzo
Bosnian Serbs associated
Munich on Mar 18,
(Bosnian Muslims),
with Muslim-Croat
1996 Mucic arrested in
Zdravko Mucic (Bosnian
takeover of Konjic (central Vienna on Mar 18,
Croat)
Bosnia), and with
transferred to the
detention of Serbs at
Tribunal on May 8,
Celebici camp, in May
1996. Delic and Landzo
1992
arrested by the Bosnian
government on May 2,
transferred to the
Tribunal on June 13.
Delic and Landzo
pleaded not guilty on
June 18. The trial of the
four men opened on
March 10, 1997.
05/29/96
Drazen Erdemovic
For murders of Bosnian
Arrested by Serbia-
(Bosnian Croat)
Muslims near Srebrenica
Montenegro and
in July 1995, while
transferred to the
serving with the Bosnian
Tribunal in March 1996.
Serb army
Pleaded guilty on May
31. Sentenced to 10
years imprisonment on
Nov. 29, 1996. On
appeal, the Tribunal
ruled that Erdemovic
had been poorly advised
on the implications of
pleading guilty to crimes
against humanity. He
was permitted to plead
guilty to war crimes
only, and on March 5,
1998, his sentence was
reduced to 5 years
imprisonment.

CRS-40
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
06/27/96
Zoran Marinic (Bosnian
For the murder of four
At large.
(formally
Croat)
Bosnian Muslims in the
issued by
Lasva valley in central
the
Bosnia in April 1993.
Tribunal
on
11/9/96,
but not
publicized
until
6/27/96,
due to
fears for
the safety
of
witnesses
and
victims.)
06/27/96
Zoran Kupreskic, Mirjan
For crimes against
Zoran Kupreskic, Mirjan
(formally
Kupreskic, Vlatko
Muslims and ethnic
Kupreskic, Vladimir
issued by
Kupreskic, Vladimir
cleansing in the Lasva
Santic, Drago Josipovic,
the
Santic, Stip Alilovic,
Valley between May
Marinko Katava, Dragan
Tribunal
Drago Josipovic, Marinko 1992-May 1993
Papic surrendered
on
Katava, Dragan Papic
voluntarily to the
11/9/96,
(Bosnian Croats)
Tribunal and entered a
but not
plea of non guilty on
publicized
October 8, 1997. All
until
charges against against
6/27/96,
Katava, were dropped
due to
by the Tribunal
fears for
prosecutor due to a lack
the safety
of evidence on
of
December 19, 1997, and
witnesses
he was released from
and
custody. Vlatko
victims.)
Kupreskic was arrested
on December 18, 1997
by Dutch SFOR troops.
He was shot several
times by the SFOR
troops after he opened
fire on them. He has
since recovered from his
wounds.

CRS-41
Indict-
Against
Charge(s)
Status
ment
[incl war crimes,
Issued
genocide, murder, and
crimes against humanity]
06/27/96
Dragan Gagovic, Gojko
For rape, torture and
Kunarac surrendered
Jankovic, Janko Janjic,
enslavement of Bosnian
voluntarily to the
Radomir Kovac, Zoran
Muslim women at Foca
Tribunal on March 4,
Vukovic, Dragan
(southeast Bosnia).
1998. Kunarac
Zelenovic, Dragoljub
attempted to plead guilty
Kunarac and Radovan
to rape on March 9,
Stankovic (Bosnian Serbs)
1998, and not guilty to
other charges.
However, a plea of not
guilty to all charges was
entered on his behalf,
when the judge ruled
that Kunarac had been
ill-advised on the
consequences of
pleading guilty to crimes
against humanity. Janjic
was interviewed by a
CBS reporter in a cafe in
Foca in October 1997.
03/13/97
Simo Drljaca and Milan
For complicity in the
Kovacevic was arrested
(indict-
Kovacevic
commission of genocide in by British SFOR
ment was
the Prijedor region.
soldiers on July 10,
not made
1997. On the same day,
public
Drljaca opened fire on
until after
British soldiers
the arrest
attempting to arrest him,
was
and was killed when the
made)
soldiers returned fire.
TOTAL: 74 individuals (57 Serbs , 14 Croats, 3 Muslims) currently under public
indictment. An additional, undisclosed number have been indicted secretly.
26 individuals (10 Serbs , 13 Croats, 3 Muslims) currently in custody. In
addition, one indictee was given provisional release due to ill health. He must
reappear at the Tribunal two weeks before his trial begins.
Information current through April 23, 1998 Chief sources are Tribunal fact sheets and
press accounts.

CRS-42
Appendix 2: Historical Precedent for a War Crimes
Tribunal
(Prepared by (name redacted),
Legislative Attorney, American Law Division, CRS)
The concept of war crimes and of a permanent international tribunal to try such
crimes has evolved over the last two centuries.59 The Age of Enlightenment gave
rise to the idea that while armies might clash in the conflict between nation-states,
innocent civilians should not be harmed. Napoleon adopted codes prohibiting the
execution of prisoners of war and the wanton destruction of civilian property. The
Union Army adopted a code of conduct during the Civil War in the United States and
tried and executed the commandant of the Confederate prison camp at Andersonville
for war crimes. The First Hague Convention for the Pacific Settlement of
International Disputes of 1899 and the Hague Convention (IV) on the Laws and
Customs of War of 1907 were the first two multilateral agreements to recognize and
create an international law of humanitarian conduct, applicable during war time.60
Treaties ending World War I attempted to provide for the prosecution of war
crimes. The Treaty of Versailles of 1919,61 establishing the terms of peace with
Germany at the end of World War I, provided for the prosecution of Kaiser Wilhelm
II for starting a war of aggression and of German military personnel who committed
war crimes. In 1919, a special commission was created to investigate responsibility
for acts of war, including the crime "against the laws of humanity." Ultimately, this
crime was not included among the offenses prosecutable by an international criminal
court. The Treaty of Sevres,62 establishing the terms of peace with the Turkish
Ottoman Empire at the end of World War I, provided for the surrender by Turkey of
persons accused of crimes "against the laws of humanity." This Treaty was not
ratified and, in any case, such persons were ultimately granted amnesty. In 1937, the
League of Nations, of which the United States was not a member, signed a
Convention Against Terrorism,63 which had a protocol providing for the
establishment of a special international criminal court to prosecute crimes of
terrorism. This Convention was adopted in response to nationalistic acts of terrorism
in the Balkans.
59The historical information is largely drawn from M. Cherif Bassiouni and Christopher L.
Blakesley, The Need for an International Criminal Court in the New International World
Order, 25 Vand. J. Transnat'l L. 151, 152-8 (1992); Steve Coll, In the Shadow of the
Holocaust, Washington Post Magazine, September 25, 1994, at 8, 13.
60Carnegie Endowment for International Peace, The Hague Conventions and Declarations
of 1899 and 1907 100 (1915).
61Treaty of Peace with Germany, June 28, 1919, 2 Bevans 43.
62Treaty of Peace Between the Allied Powers and Turkey, Aug. 10, 1920, reprinted in 15
Am. J. Int'l L. 179 (Supp. 1921) (not ratified).
63Convention for the Creation of an International Criminal Court, opened for signature, Nov.
16, 1937, League of Nations O.J. Spec. Supp. 156 (1938); League of Nations Doc.
C.547(I)M.384(I)1937V (never entered into force), reprinted in 7 International Legislation
(1935-1937), at 878 (Manley D. Hudson ed. 1941).

CRS-43
Notwithstanding provisions described above, the first real multinational war
crimes tribunals were created after World War II. The London Charter of August 8,
1945, established the International Military Tribunal at Nuremberg to prosecute
persons accused of crimes against peace, war crimes, and "crimes against humanity"
in Europe.64 The following year, the International Military Tribunal for the Far East
was established at Tokyo to prosecute major war criminals in the Asian-Pacific
region.65 However, these tribunals were held by a multinational group of the victors
in the conflict.
The ad hoc international Tribunals for the Former Yugoslavia and Rwanda may
be considered the first truly international war crimes tribunals because they were
established by an international organization representing the global community, not
only the victors in a conflict. However, because the Tribunals do not represent clear
victors in a conflict, they do not have most of the accused war criminals in custody.
The extent to which the Tribunals can effectively and fairly prosecute the accused
will likely set a precedent for and influence the prospects for the establishment of
any permanent international criminal tribunal.
64Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.
65International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans
20.

CRS-44
Appendix 3: Proposals for a Permanent International
Criminal Tribunal
66Proposals and studies for a permanent international criminal tribunal have
been circulating since World War II.67 More recently, the United Nations
Commission on Human Rights commissioned Professor Cherif Bassiouni to draft a
Statute for the establishment of an international criminal court for the
implementation of the Convention on the Suppression and Punishment of the Crime
of Apartheid; the final report was submitted in 1980, but no further action was
taken.68 A meeting of experts at the International Institute of Higher Studies in
Criminal Studies in 1990 produced a revised text that was submitted to the Eighth
United Nations Congress on Crime Prevention and the Treatment of Offenders later
that year. This text was widely circulated.
In 1992, the General Assembly of the United Nations passed a resolution
requesting the International Law Commission to prepare a draft Statute for an
international criminal court. In 1994, the Commission adopted a draft Statute for an
international criminal court at its forty-sixth session and recommended that an
international conference be convened to study the Statute and conclude a convention
establishing an international criminal court. In 1994, the General Assembly passed
a resolution establishing an Ad Hoc Committee to study the draft Statute. After
receiving the report of the Committee, the General Assembly passed a resolution
establishing a Preparatory Committee to prepare the text of a convention establishing
an international criminal court, based on the draft Statute and the report of the Ad
Hoc Committee.69 This Preparatory Committee is currently meeting and is to submit
its report to the General Assembly at the start of its fifty-first session in September
1996. The agenda of that session is to include consideration of the report of the
Preparatory Committee and a decision on whether to convene an international
conference to finalize and adopt a convention.
It appears unlikely that a convention establishing a permanent international
criminal court or tribunal will be concluded and ratified by sufficient parties to enter
into force effectively before the ad hoc Tribunals for the former Yugoslavia and
Rwanda conclude their work. Even if a permanent tribunal were to be established
and operational before the termination of the ad hoc Tribunals, it seems likely that
they would continue to exist and exercise their special jurisdiction, and that a newly
66Prepared by (name redacted), Legislative Attorney, American Law Division.
67The historical information on the efforts to create an international criminal tribunal were
largely drawn from Bassiouni and Blakesley, supra note 1, at 157-8, and from Daniel Hill
Zafren, An International Criminal Court?, Congressional Research Service Report for
Congress, No. 93-298 A, revised March 9, 1993, at 11-12.
68See Draft Statute for the Creation of an International Criminal Jurisdiction to Implement
the International Convention on the Suppression and Punishment of the Crime of Apartheid,
U.N. Doc. E/CN.4/1416 (1980); M. Cherif Bassiouni & Daniel H. Derby, Final Report on
the Establishment of an International Criminal Court for the Implementation of the Apartheid
Convention and other Relevant International Instruments, 9 Hofstra L. Rev. 523 (1981).
69G.A. Res. 50/46, U.N. GAOR, 50th Sess., Agenda Item 142, U.N. Doc. A/RES/50/46
(1995).

CRS-45
created permanent tribunal would prepare for other future cases. The outgoing
Prosecutor for the ad hoc Tribunals has suggested that those Tribunals should
become the actual embodiment of an established permanent tribunal.70
7044 Nations to Urge Creation of International Criminal Court, Associated Press, March 6,
1996, available in LEXIS, Nexis Library, Wires File.

CRS-46
Appendix 4: Tribunal Rules of Procedure and Evidence
71The Rules of Procedure and Evidence72 [hereinafter Rules] for the Tribunal
elaborate on the general principles established in the Statute. A summary of the most
significant features of the Rules follows below. Most notable are the provisions
concerning arrest warrants and the cooperation of countries with the Tribunal in the
arrest and transfer of indictees and other suspects, and also the protections for the
accused and for victims and witnesses. The judges drafted and adopted the Rules by
February 11, 1994, pursuant to Article 15 of the Statute of the International Tribunal.
These Rules became effective on March 14, 1994. They establish a significant
precedent for any permanent International Criminal Tribunal by demonstrating a
consensus on a workable set of rules for the operation of the ad hoc Tribunal. One
of the concerns about establishing a permanent Tribunal has been the perceived
difficulty of drafting rules that would be acceptable to nations with differing legal
traditions and concepts.
The Rules are organized into nine parts: (1) General Provisions; (2) Primacy of
the Tribunal; (3) Organization of the Tribunal; (4) Investigations and Rights of
Suspects; (5) Pre-Trial Proceedings; (6) Proceedings before Trial Chambers; (7)
Appellate Proceedings; (8) Review Proceedings; and (9) Pardon and Commutation
of Sentence.
The General Provisions define terms, working languages and other basic
operations. More significantly, under this part, the accused has the right to use his
language instead of the working languages of the Tribunal and his counsel may
petition the Tribunal to use a language other than either the working languages or the
language of the accused (Rule 3). The President may authorize a Chamber to
exercise its functions away from the official seat of the Tribunal if necessary (Rule
4). A party to the proceedings may object to the actions of another party on the
grounds of non-compliance with the Rules; if the Tribunal decides the action does
not comply, it is void (Rule 5).
Part Two on the Primacy of the Tribunal details the procedures for requesting
a deferral of a national court to the Tribunal and for enforcing the prohibition on
double jeopardy. Most importantly, this part provides that if a national court does
not comply with a request for deferral or tries a person who has already been tried
by the Tribunal, the Tribunal may report the matter to the Security Council (Rules
10 and 13).
71This section was prepared by (name redacted), Legislative Attorney, American Law
Division.
72Rules of Procedure and Evidence, U.N. IT, U.N. Doc. IT/32 (1994); Amendment of Rule
96 concerning Evidence in Cases of Sexual Assault, reprinted at 33 I.L.M. 838 (1994);
Amendment of Rule 70 concerning Matters not Subject to Disclosure, reprinted at 33 I.L.M.
1619 (1994). Other amendments are summarized and described in the 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, U.N. GAOR, 50th Sess., Item 49 of the Provisional Agenda, U.N. Doc. A/50/365 and
U.N. SCOR, U.N. Doc. S/1995/728 (1995) [hereinafter Second Annual Report of the
Tribunal].

CRS-47
Part Three on the Organization of the Tribunal details the structure and
composition of the Tribunal. Discussion of these is incorporated in the section below
on the composition of the Tribunal.
Part Four on the Investigations and Rights of Suspects elaborates on
investigatory procedures, the rights of suspects, and the assignment and conduct of
counsel for indigent defendants, including the censure and reportage of misconduct
of counsel. The salient features of this part are the provision for informing the
suspect of his rights, similar to the rights commonly referred to as "Miranda rights"
in the United States (Rule 42), and the provision for audio- or video-recording of
questioning of a suspect by the Prosecutor (Rule 43). In case of urgency, the
Prosecutor may request a country to arrest a suspect provisionally, seize evidence,
and take all necessary measures to prevent the escape of a suspect, intimidation or
injury of a victim or witness, or the destruction of evidence (Rule 40).
Part Five on Pre-Trial Proceedings establishes the procedures for indictments,
issuance of and compliance with arrest warrants, arraignment of the indictee, and the
disclosure of evidence, including the protection of witnesses and victims. Arrest
warrants are to be transmitted to the country under whose jurisdiction the indictee
resides, or was last known to be, together with instructions regarding the
"cautioning" ("Mirandizing") of the indictee and the reading of the indictment to him
in a language he understands. States are obligated to act promptly and with due
diligence to execute any arrest warrants which they receive (Rule 56 reinforcing
Article 29 of the Statute) and to surrender or transfer the accused to the Tribunal
(Rules 57 and 58 pursuant to Article 29 of the Statute). The obligation to transfer an
indictee to the Tribunal supersedes any prohibition or restriction on transfer under
the national laws or extradition treaties of the country concerned. If a country is
unable to execute an arrest warrant, it shall report this to the Registrar with the
reasons for non-execution. If such a report is not made within a reasonable time after
transmission of the arrest warrant, the inaction shall be deemed a failure to execute
the warrant and the Tribunal may report this inaction to the Security Council (Rule
59). The Tribunal may transmit a notice to the national authorities of a country to
be published in national newspapers to inform the indictee that service of the
indictment against him is sought (Rule 60).
If the Prosecutor is unable to obtain the arrest of an indictee and the service of
the indictment despite the cooperation of the national authorities where the indictee
was last known to be and despite publication of the indictment, then there may be a
public review of the indictment and issuance of an international arrest warrant.
Under Rule 61 of the Rules of Procedure and Evidence, the Tribunal holds public
hearings to review an indictment and the evidence supporting it and also the efforts
that have been made to serve the indictment on the indictee and to arrest him. If the
indictment is confirmed and the Tribunal is satisfied that the Prosecutor has taken all
available actions to gain custody over the indictee, the Tribunal may issue an
international arrest warrant which is universally binding on all member nations of the
United Nations. It serves notice internationally that the indictee is wanted by the
Tribunal for trial on war crimes and that any member nation, in whose jurisdiction
the indictee is found, is obligated to arrest the indictee and turn him over to the
Tribunal. If the Prosecutor convinces a Trial Chamber that failure to effect service
of an indictment was due to a nation's failure or refusal to cooperate with an arrest

CRS-48
warrant, the Trial Chamber shall certify this lack of cooperation. The Tribunal shall
then notify the Security Council of a nation's failure to cooperate. The Security
Council may then take such action as it deems necessary in the interests of
international peace and security under Chapter VII of the United Nations Charter to
enforce cooperation. Once arrested and detained, an indictee normally remains in
custody and will only be released in exceptional circumstances (Rule 65).
Other pre-trial rules require disclosure of evidence by both the Prosecutor and
the defense, the disclosure by the Prosecutor of exculpatory evidence tending to
show the innocence or mitigate the guilt of the indictee, and protection of victims and
witnesses, including, in exceptional circumstances, the non-disclosure of the identity
of a victim or witness until such person has been brought under the protection of the
Tribunal.
Part six on the Proceedings before Trial Chambers regulates the actual conduct
of the trial. The more notable provisions include the ability of the Tribunal to
authorize special measures for the protection of victims and witnesses, including
expunging of identifying information from the public record of proceedings and
closed sessions (Rule 75); the ability of a judge in the Trial Chamber to append a
separate or dissenting opinion (Rule 88); the requirement that witnesses take an oath
to tell the truth (Rule 90); the ability of the Trial Chamber to direct the Prosecutor
to investigate and prepare an indictment for perjury and to impose a penalty for a
perjury conviction (Rule 91); attorney-client privilege (Rule 97); and a rape-shield
evidentiary rule (Rule 96). Part six also provides for guidelines for sentencing,
incarceration, restitution of property to victims. Payment of civil compensation to
victims may be sought under national laws in national courts; the judgment of the
Tribunal shall be binding with respect to the criminal liability of the convicted
person for the injury (Rule 106).
Part Seven on Appellate Proceedings authorizes and establishes the procedures
for appeals, including briefs, admission of additional evidence, and the status of the
accused following appeal.
Part Eight on Review Proceedings provides that, where a new fact has been
discovered which was not known at the time of the trial or appellate proceedings and
could not have been discovered earlier through the exercise of due diligence, the
defense or, within one year following final judgment, the Prosecutor, may make a
motion to the Chamber which rendered final judgment for review of the judgment
(Rule 119). If a majority of the judges of the Chamber which rendered final
judgment agree that the new fact, if proved, could have been a decisive factor in the
judgment, the Chamber shall review the judgment (Rule 120). After hearing the
parties, the Chamber shall pronounce a further judgment (Rule 121). The judgment
on review of a Trial Chamber may be appealed in accordance with Part Seven. If a
judgment to be reviewed is pending appeal at the time that the motion for review is
filed, the Appeals Chamber may return the judgment to the Trial Chamber for
disposition on the motion for review (Rule 122).
Part Nine on Pardon and Commutation of Sentence reiterates the provisions of
the Statute discussed above regarding the pardon and commutation a of sentence.
In determining whether it is appropriate for a prisoner to be granted a pardon or

CRS-49
commutation of a sentence under the laws of the country where the sentence is being
served, the President of the Tribunal shall consider, the gravity of the crime for
which the prisoner was convicted, the treatment of similarly situated prisoners, the
rehabilitation of the prisoner, and any substantial cooperation of the prisoner with the
Prosecutor.
In addition to the Rules of Procedure and Evidence, the Tribunal has also
promulgated Rules on Detention and issued a Report on the assignment of defense
counsel to indigent defendants and a Directive on the assignment of defense
counsel.73
73Rules covering the detention of persons waiting trial or appeal before the Tribunal or
otherwise detained on the authority of the Tribunal, U.N. IT, U.N. Doc. IT/38/Rev.4 (1995);
Report on the assignment of counsel, U.N. IT, U.N. Doc. IT/59 (1994) and Directive on
assignment of defense counsel, U.N. IT, U.N. Doc. IT/73/Rev.1 (1994).

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