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ICG Bosnia Project, 24 November 1996
(part 1 of 2)
EXECUTIVE SUMMARY
A year after the Dayton Peace Agreement (DPA) was signed marking the end of the war in Bosnia and Herzegovina, the implementation of its civilian provisions is in crisis. Those indicted by the International Criminal Tribunal for the former Yugoslavia (Tribunal) remain at liberty and continue to influence events behind the scenes; leaders responsible for the outbreak of war have been given a fresh mandate in clearly fraudulent elections which the international community certified nevertheless; the common institutions which were supposed to evolve out of those elections have failed to materialise in substance; and repatriation and reintegration, allegedly the cornerstone of the DPA, have been limited to a trickle of particularly resolute individuals, all to areas where the returnees form part of an ethnic majority. While an end to the killing took events in Bosnia and Herzegovina off the television screens and the front pages of newspapers, the conflict has by no means been resolved and may spill over into bloodshed again. A window of opportunity remains half open, but unless the international community takes immediate and decisive action, the DPA may go down as the most expensive cease-fire in history, not the basis for a lasting peace. In anticipation of the forthcoming DPA Peace Implementation Conference in London on 4th and 5th December, the International Crisis Group (ICG) presents a set of recommendations to get the peace process back on track.
WAR CRIMES AND CRIMES AGAINST HUMANITY
Obligations of the International Community One issue hangs like a sword of Damocles above the peace process, namely that of the continued freedom and impunity of persons indicted by the Tribunal. No matter how much some in the international community might wish it to disappear, this issue will not go away and must eventually be tackled head on. Moreover, the sooner it is addressed, the better. Indeed, as long as those indicted for war crimes and crimes against humanity including genocide, remain at liberty, there is no prospect of any justice in Bosnia and Herzegovina. And without justice it will be impossible even to begin the process of reconciliation which is so necessary if this country is to be pieced back together. Now that the Implementation Force (IFOR) has stopped the open conflict, the most important contribution the international community can make towards promoting an enduring peace is to ensure the arrest and surrender to the Tribunal of individuals indicted for war crimes and crimes against humanity. This effort must begin with those who still exercise real power even if they no longer occupy their official posts (Radovan Karadzic and Ratko Mladic) and whose whereabouts are known. The effect this could have to boost the reunification of the country cannot be underestimated. President Bill Clinton clearly recognises this obligation: "Those accused of war crimes, crimes against humanity and genocide must be brought to justice. They must be tried and if found guilty, they must be held accountable.� There must be peace for justice to prevail, but there must be justice when peace prevails." Regrettably, he does not appear to have accepted the obligation, which lies in the first instance with the US government, as the driving force behind NATO and its political arm, the North Atlantic Council. IFOR and NATO commanders have made repeated statements that their troops will not search for suspects indicted by the Tribunal, and will arrest suspects only if they encounter them in the course of their regular duties and if security permits. IFOR has not complied with even this limited interpretation of its mandate. There have been well-documented accounts of several encounters between IFOR troops and indicted individuals and, more ludicrously, contortions to avoid encounters. For instance, in mid-August, IFOR troops hastily left the headquarters of indicted war criminal General Mladic, which IFOR had planned to inspect for illegal weapons, after learning that Mladic was inside. Last winter IFOR avoided the ski slopes above Pale when Mladic appeared and even gave interviews to journalists. Moreover, IFOR�s interpretation of its mandate seems foolish at best, intentionally misleading at worst. It is hard to imagine that security would ever permit the arrest of an indicted person, especially Karadzic or Mladic, upon a chance encounter. The requirements of military preparedness, not to mention force protection, should dictate considerable planning before any arrest is undertaken. The NATO governments, and accordingly IFOR, are obliged (under the Genocide Convention, the Geneva Conventions of 12 August 1949, its Additional Protocol 1, and Security Council res. 827 of 25 May 1993) to search for and arrest individuals indicted by the Tribunal. In addition, IFOR clearly has the authority under the DPA to do so if it so decides, or if so instructed. The IFOR command should not make statements that arrest of those indicted by the Tribunal lies beyond its mandate, but neither should it be held primarily responsible for the failure to make those arrests. The responsibility for ensuring that indictees are arrested and surrendered to the Tribunal lies first and foremost with the governments of the United States, France and United Kingdom, as parties to the Genocide and Geneva Conventions, and as the powers that lead the IFOR command and the North Atlantic Council. The DPA expressly states that the North Atlantic Council "may establish additional duties and responsibilities for the IFOR". The performance of the UN International Police Task Force�s (IPTF) has been similarly disappointing. For instance, on 26 August, Radovan Stankovic, indicted by the Tribunal, stopped at a UN IPTF station to complain that Bosnian police had fired on his car while trying to arrest him. The IPTF officers did not recognise him. Yet more troubling was the reaction of the UN, whose spokesman said that even if the IPTF officers had recognised him, they were under no obligation to inform IFOR or take any other action. Obligations of the DPA Parties The UN Security Council stated firmly (in resolution 1022 of November 22, 1995) that "compliance with the requests and orders of the International Criminal Tribunal for the Former Yugoslavia [to arrest and surrender to the Tribunal people indicted for war crimes] constitutes an essential aspect of implementing the Peace Agreement." The governments of Croatia and the Federal Republic of Yugoslavia (FRY), as well as the authorities of Republika Srpska and of the Croat controlled territories of the Federation have taken a few measures (such as passing legislation to implement their obligations to arrest and surrender indictees and allowing investigators access to some evidence), but they have staunchly declined to comply with the essential obligation to arrest and surrender indictees. In contrast, the authorities of the Bosniac parts of the Federation have substantially complied with all of the Tribunal�s orders. As of November, the Tribunal had indicted 74 people for war crimes and crimes against humanity, including genocide. Only seven are in custody in the Hague. Most are believed to be at large in Bosnia and Herzegovina, Croatia or the FRY. The authorities of the Bosniac parts of the Federation arrested both Bosniac indictees within their jurisdiction, and arrested two other indictees who mistakenly entered their territory (one of whom was subsequently released by the Tribunal). Two others were arrested and surrendered to the Tribunal by the Austrian and German police. The Croatian government arrested a Bosnian Croat indictee, Zlatko Aleksovski, in June in Split, but has yet to surrender him to the Tribunal despite a decision of Croatia�s Supreme Court approving the transfer. Dario Kordic (a Bosnian Croat general), Ivica Rajic (a Bosnian Croat militia commander) and several others, charged with having committed and ordered atrocities against civilians on a massive scale, are living more or less openly in Croatia. As of April, Kordic was living in a government-owned flat in Zagreb, regularly attended the ruling party meetings with top government officials, and even appeared on Croatian-controlled television (HRTV). He is still seen from time to time on the streets of Zagreb. The High Representative estimated that, as of July, there were at least 15 indictees living in Croat-controlled parts of the Federation, some of whom crossed regularly into Croatia. The party which is in most flagrant violation of the Tribunal�s orders is, undoubtedly, Republika Srpska. Not only has it failed to arrest a single person under indictment, it has allowed Radovan Karadzic and Ratko Mladic, against whom the Tribunal has presented extensive evidence of genocide, crimes against humanity and war crimes, to exercise substantial political and military control. Karadzic formally resigned from the Presidency of the Republika Srpska and the Srpska demokratska stranka (SDS) in July, and he even stopped going to the government buildings in Pale on a regular basis, but he has continued to exercise real power and the SDS has continued to promote the view (through SDS-controlled media, campaign posters and speeches) that he is the great hero of the Bosnian Serbs, unfairly vilified by the West. Since the UN Security Council voted on 1 October to remove sanctions from the Republika Srpska, there is strong evidence that he has resumed use of his office in the government compound in Pale. The announcement on 9 November of Ratko Mladic�s dismissal from his position as commander of the Republika Srpska military reflects long-standing political animosities and should not be assumed to indicate movement towards compliance with the Tribunal�s orders. Karadzic�s active involvement in the Republika Srpska government, his open movements around Pale in sight of IFOR troops, and Mladic�s continued grip (albeit weakened) on military power exacerbate the outrage to the rule of law raised by the Republika Srpska�s failure to arrest them. The respect shown Karadzic by the people and leaders of Republika Srpska should by no means be used as an argument against arresting him because it is the tangible expression of their complete denial of responsibility for genocide, crimes against humanity and war crimes. So long as the facts of the atrocities are suppressed and the responsibility of the war criminals rejected there can be no genuine progress towards reintegration. Reconciliation demands acknowledgement and accountability. For the victims, there can be no forgetting. While the halting of the worst violence between the belligerent sides and the building of common institutions may obscure for a time the depth of the wounds, unless the Bosnian Serb leadership accepts full responsibility for the war crimes they have committed, those wounds will not heal and there can be little doubt that hostilities will flare up again once foreign troops pull out. Adamant refusal to exclude Karadzic and Mladic from their positions of power may be the Bosnian Serb leadership�s worst outrage, but it is by no means the only one. The High Representative estimated in July that 50 indictees were living in the Republika Srpska. The Republika Srpska police in Prijedor and neighbouring Omarska (where many of the war�s worst atrocities were committed) continued, as of 12 November, to employ four men indicted by the Tribunal (Zeljko Mekajic, Miroslav Kvocka, Mladen Radic and Nedjeljko Timarac). Two others (Blagoje Simic and Stefan Todorovic) are occupying public posts in the northern Republika Srpska town of Bosanski Samac, and other indictees also clearly receive government support or protection.
Since its inception in 1993, the Tribunal has made considerable progress in establishing its credibility, developing its jurisprudence and securing resources and qualified staff. However, the Tribunal�s credibility is coming under increasing threat owing to the failure to arrest leading figures under indictment and its inability, due to scant resources, to adequately investigate and prosecute even the seven individuals in its custody. For the investigation and prosecution of crimes in the Former Yugoslavia, the Tribunal has only 120 investigators, lawyers and researchers (less than half the number employed by the Los Angeles District Attorney�s Office), and two dozen translators. The amount of evidence that must be collected is enormous; the need for translators and interpreters compounds the difficulties. For one case involving crimes committed in Mostar it already has collected 30,000 pages of documents in local languages. It has received more than 400 kilos of documents (in local languages) supporting the arrest by local authorities of more than one hundred people (many of whom have already been detained) which the Tribunal must review in order to determine whether those people may lawfully be arrested and prosecuted. The Tribunal has only one trial courtroom and two trial chambers, and the trial of each indictee is expected to last at least three to four months. It is obvious that the Tribunal is in urgent need of additional resources.
It is highly likely that IFOR, and the UN Protection Force (UNPROFOR) before it, gathered intelligence in the course of regular operations that would be useful to the Tribunal. In the interest of protecting their forces, different contingents are likely to have conducted surveillance and intercepted communications involving the local military commanders in the region.
DAYTON IMPLEMENTATION MECHANISMS A major weakness of the implementation of the DPA has been the international community�s lack of political will to use the implementation and enforcement mechanisms available to it. The powers available to the implementing organisations could of course be strengthened, and ICG would welcome any initiatives in this direction. Yet, while one may always hope for stronger enforcement mechanisms, the reality is that the mechanisms available to promote compliance with the DPA have been more forceful than those available to most international peace-keeping operations. The High Representative, Carl Bildt, had the power until 1 October to trigger the re-imposition of UN sanctions against Republika Srpska and the Federal Republic of Yugoslavia (FRY), yet never did so. In the event, the UN Security Council, at the same time as it lifted the existing sanctions, put the parties on notice that it would "consider the imposition of measures if any party fails significantly to meets its obligations under the Peace Agreement." The High Representative remains able to call on international donors, including the World Bank and the European Union, to withhold aid from parties which flout their Dayton commitments; the potential impact of aid conditionality is considerable given the large sums donors have committed and their willingness to be guided by the High Representative�s requests. Yet the High Representative has rarely used this source of influence.
The international community has been able to mask its lack of political will to use the implementation mechanisms available to it by avoiding the diplomatically controversial task of determining accountability. Determining accountability is necessary to set the record straight and constitutes a critical step towards reconciliation. Just as it is critical to set the historical record straight about crimes against humanity and war crimes committed in Bosnia and Herzegovina, it is equally critical to maintain a record of current violations of the DPA and to identify the responsible officials or parties. Once a rigorous investigation establishes responsibility, the High Representative, who has primary responsibility for promoting "full compliance with all civilian aspects of the peace settlement", can call on the offending party or government body to provide an effective remedy for the violation, including, for instance, dismissal from public service of the officials most directly responsible. Failure to comply should result in the withholding of economic assistance. The conditioning of aid should be tailored and proportionate to the Dayton violation, and should be addressed to the party, government ministry or local government that is best situated to provide an effective remedy. Establishing the facts as to responsibility will make the High Representative�s decision-making more transparent, and will provide an agreed factual basis for decision-making by other actors (including donors), should he decide not to take any firm remedial or punitive action himself. What is needed is an imaginative approach to marshalling the fact-finding initiatives already undertaken by various international agencies so as to enhance their capacity to establish facts and determine culpability. It is not necessary that guilt be established beyond a reasonable doubt but only to a level of certainty sufficient to justify aid cut-offs, demands for dismissal of public officials, and policy changes.
One approach would be to name a different task force for each investigation, to be comprised of people with relevant expertise seconded from organisations already working in Bosnia. It may be expected that, over time, a small pool of people would be identified who could be drawn on repeatedly. For instance, to investigate the destruction of houses in areas in and near the zones of separation, the High Representative might ask IPTF to identify a monitor to lead the investigation (since the responsibility of the local police could be involved); he might also ask an international organisation (governmental or non-governmental) to contribute someone who knows the local language and situation; and someone, perhaps from IFOR, who has experience with investigating explosions and arson. Similarly, to investigate problems with the reconnection of telephone lines between Republika Srpska and the Federation, the High Representative might form a task force comprised of people familiar with telecommunications, corruption and the ways the relevant Ministries work. Some task forces could investigate a number of problems in a given municipality, on the assumption that a few officials may be responsible for multiple DPA violations. For instance, a task force could examine a number of alleged violations in Prijedor, including the year-long, arbitrary and for a long time unacknowledged detention of a Croat priest and his parents, the continued employment of police who have been indicted by the Tribunal, the destruction of houses slated to be occupied by returning displaced Bosniacs, incidents of blatant non-cooperation with IPTF, police involvement in stopping UNHCR buses from entering the area, and statements on the radio by the Mayor urging hostility towards non-Serb residents and returnees. Some issues, of course, may not be well-suited to a task-force approach to fact-finding, particularly where facts are not seriously in dispute. However, even issues that seem heavily political could possibly be clarified and de-politicised by the introduction of an expert, neutral fact finding body. ICG does not propose the creation of a new institution. Far from it. Rather, ICG calls on the High Representative to undertake more focused co-ordination of what the international agencies are already doing. The kinds of incidents that would benefit from a task force approach have been the subject of monitoring and reporting by several agencies. The hope is that, by co-ordinating their work on certain situations identified by the High Representative as posing particularly serious challenges to the DPA�s goals, the agencies will be able to determine facts, and responsibility, to a greater degree of precision and credibility than they are able to do on their own. These ad hoc task forces would not duplicate the work of any other agency. The Human Rights Ombudsperson (established under Annex 6 of the DPA) is authorised to investigate "alleged or apparent violations of human rights" . The Ombudsperson, however, can take cases only when an individual complainant is prepared to step forward, has no authority to investigate violations on behalf of a class of complainants, has only a small staff and is, understandably, bound by strict rules of confidentiality. The Election Appeals Sub-Commission (EASC), established by the Organisation for Security and Co-operation in Europe (OSCE), serves as an interesting model, and could be called on to undertake certain fact-finding inquiries. But its mandate for the municipal elections has not yet been secured and, at most, it will operate until the municipal elections. Comprised of one international and three Bosnian judges (a Croat, Bosniac and Serb), and staffed by one IPTF monitor and between one to five lawyers at various times, it was able to investigate more than 100 complaints in a 4-week period surrounding the September elections, and determine individual or party responsibility in more than two dozen cases. Its mandate, if extended, is sufficiently flexible to enable it to enquire into a broad range of issues, including politically-motivated violence, intimidation and job dismissals, freedom of movement, and statements by candidates that call for rejection of fundamental aspects of the DPA. DPA Implementation Council: Accountability of Public Officials In May, the Federation Mediator, Dr. Christian Schwarz-Schilling, submitted a proposal to the Federation Assembly to establish a Federation Implementation Council that would examine complaints against persons holding public office (other than judges) for violations of internationally recognised human rights, the DPA, Federation law, cantonal or local law, or for serious obstruction of co-operation with the Tribunal. It was proposed that the Council should be chaired by the Principal Deputy High Representative, and should include two additional representatives of the international community plus the Federation Prime Minister and his Deputy. The proposal was motivated by the recognition that efforts to implement the DPA and Federation and local law would be considerably strengthened by the existence of an effective mechanism for removing public officials who actively obstructed those agreements and laws. The Federation Assembly has not taken any action on the proposal. ICG believes that such a Council could be a powerful mechanism for addressing some of the problems currently encountered in trying to implement the DPA, as well as Federation and local law, and urges that such a Council should be established and should extend to both the Federation and the Republika Srpska.
Expanding IFOR�s Role: Accountability of the Armed Forces One of the significant gaps in the implementation of the DPA is the failure of any organisation to monitor the responsibility of the parties� armed forces to ensure that their troops do not commit human rights violations, and that soldiers who committed war crimes are identified and turned over to the proper authorities. There is a general suspicion that soldiers, demobilised or on active duty, are responsible for many of the worst unsolved crimes: house destructions, forcible evictions, rapes and murders. When IPTF monitors investigate, they hit a brick wall. The local police tell them that the suspects are soldiers, and that they thus have no jurisdiction. IPTF also has no jurisdiction. IFOR has not filled the gap. Clearly it should, especially now that its stay in Bosnia and Herzegovina has been extended.
UN IPTF�s Role: Accountability of the Police Given the large number of police who are demobilised soldiers, there is likely to be a higher percentage of war criminals on the police forces than in the general population. IPTF should do much more to identify police who are not fit to serve on the forces, both in the Federation and Republika Srpska, and to press for their removal.
The standard of proof to justify dismissals should not be proof beyond a reasonable doubt, but rather the civil standard of preponderance of the evidence. Police employment is not a right. Police should be held to a high standard of lawfulness; the fact that the evidence may not be sufficient to convict a police officer of a war crime does not mean that he therefore is entitled to continued employment.
The international community�s main source of leverage over the parties to Dayton is economic conditionality. The High Representative has, however, used this power only once, when he called for the suspension of aid to the municipalities of Bugojno, Capljina, Stolac and Vares owing to their adamant refusal to provide security for the minorities in their areas. In the past year, under the auspices of the World Bank, a framework for investment has been put in place which is already jump-starting the economy in the Federation and could do the same in Republika Srpska. The sums of money involved are massive. A total of $1.8 billion was pledged for Bosnia and Herzegovina at two donors� conferences early in the year, of which $1.5 billion is fully committed. Reconstruction contracts worth $1.02 billion have already been signed, $700 million had been spent by the end of October and if spending continues at the current rate, $950 million will have been disbursed by the end of the year. Since the bulk of the money to reconstruct Bosnia and Herzegovina comes in the form of grants, the international community is both entitled to and should use economic assistance as a tool to achieve political ends. The western tax-payers who are effectively financing the reconstruction programme deserve assurances that their money is spent wisely. As a result, it is only worth putting money into the country, if and when visible and concrete political progress is made. Rebuilding Republika Srpska without first resolving key political issues, in particular the arrest and surrender of persons indicted by the Tribunal, amounts to throwing money at a problem, not dealing with it. Given the European Union�s experience of the divided Croat-Bosniac city of Mostar, where more than 260 million DM - close to 5,000 DM per inhabitant - was invested to no avail between 1994 and 1996, such a policy would surely be both costly and doomed to end in failure.
For many of the reasons that Bosnian authorities, police and soldiers must be held accountable for actions or non-action that undermine the DPA�s implementation, so too must the international organisations be accountable to the people of Bosnia and Herzegovina. Respect for Bosnian authorities and basic notions of reciprocity argue for at least the degree of transparency necessary for the Bosnian authorities and people to understand the basis for decisions, and the decision-making processes, that so affect them. If the point of the international encampment in Bosnia is to "teach" democracy, tolerance and good governance to the Bosnians than there is no better way to start than by example. Transparency and Accountability to the People of Bosnia and Herzegovina
Human Rights: Promoting Greater Effectiveness and Local Capacity Since the mid-term DPA review conference in Florence in June, the human rights situation has deteriorated. Harassment of members of ethnic minorities and political opposition increased in the run up to the elections and continued thereafter. Attempts of ethnic minorities to return to their homes have been met with increasing violence and intimidation. Hundreds of minority owned homes have been destroyed since October. Violations committed by, or with the connivance of, the police and other local authorities are more frequent and more serious. At least nine international organisations operating in Bosnia and Herzegovina -- some created by Dayton, some with long track records -- devote all or some of their resources to addressing human rights concerns. These include the Human Rights Commission established under Dayton, the Office of the High Representative (OHR); the Organisation for Security and Co-operation in Europe (OSCE); the UN International Police Task Force (IPTF); UN Civil Affairs; the UN High Commissioner for Human Rights (UNHCHR); the UN High Commissioner for Refugees (UNHCR); the European Community Monitoring Mission (ECMM); and the International Committee of the Red Cross (ICRC). As of 1 November, these organisations employed more than 2,000 international staff in Bosnia and Herzegovina who devoted at least some of their time to human rights. In addition, the 43,000 IFOR troops still deployed throughout the country (reduced from an initial force of 58,000) contribute to human rights protection by facilitating freedom of movement and providing security for the international personnel (which enables them to move freely about the country and better pursue their human rights work). The OHR created a Human Rights Co-ordination Centre (HRCC) and a Human Rights Task Force (HRTF) to help co-ordinate the human rights work of the various organisations. The HRCC has done an increasingly good job of collating human rights information from, and making it available to, the various organisations. Its daily human rights reports are now faxed and sent by e-mail to dozens of recipients. Regrettably, it has not been able to produce translations, or even summaries, in the local languages. Its efforts to ensure that major human rights problems are addressed adequately and to provide greater support for building the capacity of local and national institutions are to be welcomed. However, the HRCC can still take steps to minimise duplication and, more importantly, to increase the effectiveness of efforts to stop violations.
For instance, IPTF should be primarily responsible for violations by the police (including non-action when they are obliged to act). The OSCE should be primarily responsible for violations of political rights, including freedom of expression, association and assembly; and employment discrimination. UN Civil Affairs, working together with IPTF, should be primarily responsible for unlawful evictions (without court order or fair notice, or accomplished by force or intimidation). UNHCR should be primarily responsible for freedom of movement, backed up, as necessary by IPTF and IFOR. Property issues are so pervasive and complex that they should continue to be handled by the OSCE, the OHR and UNHCR, working together with the local and international Ombudspersons and the Commission on Real Property Claims established under Annex 7 of DPA. A major area that to date has received inadequate attention is the monitoring of violations of due process and fair trial rights, including access to counsel during the investigation stage, and arrest of ethnic minorities on trumped up charges. UN Civil Affairs and HRCC should address these violations as a matter of priority.
Currently, the OSCE, ECMM and UNHCR issue reports on the human rights situations they are monitoring. The reports are generally good on recording the initial information discovered by field personnel. However, the reports too often lack information about follow-up.
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