The ICTY and the people from the former Yugoslavia A reserved relationship.

An evaluation of the outreach efforts 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 (ICTY).

By: Erik Pronk Tutor: Bob de Graaff Student number: 0162205 Study: International Relations in Historical Perspective Preface ...... 3

Introduction...... 4 The (impact of the) war in the former Yugoslavia...... 8 The establishment of the ICTY ...... 15

Chapter 1: The ICTY 1993-1999 ...... 17 The ICTY pre-operational (1993-1994)...... 17 The Goldstone era (1994-1996) ...... 19 The Louise Arbour Era (1996-1999)...... 28

Chapter 2 Criticism from the Balkans, 1993-1999...... 34 The role of the media...... 37 Bosnia-Herzegovina ...... 41 ...... 43 ...... 45 ...... 48 Conclusion chapter 2...... 53

Chapter 3 The ICTY 1999-2009...... 55 ICTY: Reaching out to the region; the ICTY “Outreach” program ...... 56 Outreach’s expanded mandate...... 64 “Bridging the gap”...... 67 Conclusion chapter 3...... 69

Chapter 4 An assessment of Outreach...... 71 Perceptions in the Region ...... 71 The failure of Outreach...... 72

Conclusion The ICTY and its region: a reserved relationship...... 79 Bibliography...... 82 Articles...... 84 Websites ...... 86

Annexes Annex 1: Tables Annex 2: Outreach Activities website 1999-2008 Annex 3: Statute of the ICTY Annex 4: Outreach Activities 1999-2009 Annex 5: The Rules of Procedure and Evidence of the ICTY

2 Preface

For my master International Relations in Historical Perspective I did an internship at the ICTY between March and June 2007. Working in a team of six attorneys in the office immediately next to the Registrar, I learned a great deal about the ICTY. It was a great experience. When I started to read more about the ICTY, I realised that relatively little has been written about the Outreach efforts of the Tribunal. During my internship, the topic of my thesis materialised. Little progress was made on my thesis once I obtained a position at the ICTY. I worked at the Tribunal between June 2007 and February 2008. During this time I came to understand much more about the internal workings of the United Nations and how courts internally function. At the end of 2008 I again worked for four months at the ICTY. In the interval, I went on an extended visit to the region. I would like to thank Edmir Veljovic especially for helping me to explore the countries Bosnia-Herzegovina, Kosovo, Montenegro and of course Serbia (in particular and Zemun). I never have been welcomed so warmly. His friends treated me as their friends and his family treated me as family. They made my visit to the region unforgettable. Although the exploration of the region was instructive in itself, because of Edmir, Emir, Dino, Teta, Be ćir, Asija, Besim and so many other this investigative trip became one of the best holidays I ever had! Also I want to thank my girlfriend Jaimee Campbell for assisting me with my English, reading the thesis over and over again and to put up with me when I was not to be put up with.

8 July 2009,

Rotterdam, The Netherlands,

Erik Pronk

3 Introduction Since the very first hearing on 8 November 1994, 1 the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) has indicted a total of 161 individuals. As of this writing, 117 proceedings have been completed: 10 persons acquitted, 58 sentenced, 2 and 13 have had their cases transferred to local courts. At present, proceedings are ongoing with regard to 45 accused: ten are at the appeals stage, six are awaiting judgment, twenty are currently on trial and seven are at the pre-trial stage. Only two fugitives are still at large, Goran Hadži ć and Ratko Mladi ć.3 Since its inception in 1993, the ICTY has achieved a great deal. 4 For the first time in history, rape and other gender offences have been recognized as war crimes. 5 The ICTY has demonstrated that the Anglo-American common law and continental law can be unified. The ICTY has given a significant development to international criminal law. By publicizing the suffering of the victims, the international court has recognized the sufferings of the victims. It has judged war criminals at all hierarchical levels: the ICTY prosecutors even indicted a sitting head of a state for the first time in history. ICTY’s work and achievements have inspired the creation of other international criminal courts, including the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). With these achievements in mind, the ICTY appears very successful. However, the ICTY, in its sixteenth year of its existence and working on more cases than ever, is not being appreciated by the people of the region. In a recent Tanjug News agency poll, more than half of the Serbian population queried would be against extradition of Ratko Mladi ć if the former general were arrested, and four of every ten Serbs are against all

1 See referral request in the Tadi ć case, of 8 November 1994, at: http://www.icty.org/case/tadic/4 , viewed 20 June 2009, 12:30. 2 With 26 having served their sentences, and two persons having died while serving their sentences (due to natural causes). Another 36 cases have been terminated either because indictments were withdrawn or because the accused died before or after transfer to the Tribunal. See also ICTY Key Figures at http://www.icty.org/sections/TheCases/KeyFigures , viewed 20 June 2009, 13:00. 3 See ICTY press release of 4 June 2009, "President Robinson’s Address Before the Security Council", at http://www.icty.org/sid/10148 and "Prosecutor Brammertz’s Address Before The Security Council", at http://www.icty.org/sid/10147 , viewed 20 June 2009, 12:30. 4 See for example the Institute for War and Peace Reporting, "ICTY Legacy", at: http://www.globalpolicy.org/component/content/article/163/29371.html , viewed 24 June 2009, 12:30. 5 See press release of 22 February 2001, "Judgement of trial chamber II in the Kunarac, Kovac and Vukovic Case" which was the first ICTY convictions of rape as a crime against humanity and it was the first convictions of enslavement as a crime against humanity. See the press release at http://www.icty.org/sid/8018 , viewed 20 June 2009, 13:00.

4 forms of cooperation with what is often referred to as the “Haski Tribunal”. 6 Among some national communities, in particular the Serbs and the Croats, it is fair to say the ICTY is widely despised. In Bosnian Muslim and Albanian communities, the work of the ICTY often brings a mixture of hope, gratitude, disappointment and disillusionment. 7 Now that the ICTY is in its completion phase – the cases are scheduled to finish in early 2012 and the appeals in 2013 - the achievements of the international tribunal are crystallizing. 8 The ICTY was an example for the International Criminal Court and developed international humanitarian law considerably by putting theories into practice and creating laws and legal precedents where there were none. It is all the more striking then that the court is disliked and mistrusted by the people that really matter: the people of the former Yugoslavia. In 1999, the International Criminal Tribunal for the former Yugoslavia established a section to reach out to the people in the region. But this unit was clearly not a priority of the management of the Tribunal: The section was created only in 1999 – the sixth year of the Tribunal’s existence – and was not included in the ICTY’s budget. The section’s sole funding continues to come from contributions collected from outside donors. Results from this “Outreach” section were not apparent until March 2000, because the employees of the section had to organize resources before it could operate. 9 To this day the Outreach section is responsible for organizing its own funding. In this thesis I will examine what the ICTY has done to address (and correct) misperceptions of its achievements throughout the former Yugoslavia. Such an investigation has received too little attention from scholars previously, while – I believe – the question is worth posing. After all, the Tribunal was established to serve the citizens of the former Yugoslavia. It appears that the ICTY has neglected its constituents.

6 See De Telegraaf of 28 jan 2009, "Steun voor Tribunaal in Servië brokkelt af", at http://www.telegraaf.nl/binnenland/3105632/__Weinig_steun_Tribunaal_in_Servie__.html?p=3,1 , viewed 29 Januari 2009, 9:40. Despite of the $1.3 million reward offered for information on Mladi ć by the US, other queries confirm that the majority of the Serbian population would not provide any information. See for example Angus Reid Global Monitor of 3 February 2009, "Serbs Would Not Help with Mladic’s Arrest", at: http://www.angus-reid.com/polls/view/32759/serbs_would_not_help_with_mladics_arrest , viewed 4 February 2009, 9:15. 7 See also Dan Saxon, “Exporting Justice: Perceptions of the ICTY Among the Serbian, Croatian and Muslim Communities in the Former Yugoslavia”, 562 in the Journal of Human Rights , 4:559-572 (2005). 8 See press release of 4 June 2009, "President Robinson’s Address Before the Security Council", at http://www.icty.org/sid/10148 and ICTY Completion Strategy Report of 18 May 2009, S/2009/252, 3 and “Bringing Justice to the former Yugoslavia: the Tribunal’s Core Achievements”, at: http://www.un.org/icty/cases-e/factsheets/achieve-e.htm , viewed 25 June 2009, 12:00. For the latest estimate when the ICTY will close down, see Balkan Insight of 8 July 2009: "UN Extends Mandates of ICTY Judges", at: http://www.balkaninsight.com/en/main/news/20923/ , viewed 9 July 2009, 9:00. 9 See the ICTY website, "ICTY Outreach Activities - 2000", at: http://www.icty.org/sid/10109 , viewed 20 June 2009, 13:45.

5 The ICTY is the first international tribunal since the Nuremberg Trials (1945-1946) and Tokyo Trials (1946-1948). In the time between the creation of the international tribunals concerning World War Two and the establishment of the ICTY, International Humanitarian Law (IHL) developed significantly. Most articles and books concerning the Tribunal concentrate on the development of international law and the cases before the ICTY trial chambers. The works that deal with the ICTY usually focus on the Western public and Western politicians of the international community. Moreover, a large amount of the work concerning the ICTY has been written by former staff members of the Tribunal. Relatively little has been written about the outreach efforts of the ICTY. The few articles that have been written concerning the Tribunal’s outreach efforts are not recent. 10 Most of articles concerning ICTY’s Outreach efforts, such as “International War Crimes Tribunals and the Challenge of Outreach” by Clark (2009) and "The ICTY’s Outreach Programme and the Challenges to its Success at Shaping Local Popular Perceptions of the Tribunal” by Victoria Enaut (2006), express a positive belief in the Outreach program. None of the authors of the articles surveyed have truly scrutinized the effectiveness of the Outreach program. Although I have used all the aforementioned material for this thesis, I have relied mainly on primary material such as ICTY annual reports to the General Assembly (1994- 2008), Completion Strategy assessments (2004-2009) and the press releases of the Tribunal. In this thesis, I first provide a brief overview of the conflict in the former Yugoslavia. The war – and the committed war crimes - were the reason for the creation of the ICTY. In chapter one, titled “The ICTY 1993-1999”, I describe the foundation and the initial difficulties the Tribunal experienced throughout the nineties of the twentieth century. The problems the ICTY experienced hampered the court’s efforts to become fully operational. Only at the end of 1999 did the ICTY launch its Outreach program. Chapter two, entitled “Criticism from the Balkans, 1993-1999”, concentrates on the peoples, the leaders and the states of the former Yugoslavia. In this chapter it becomes clear that the local leaders used all of their instruments and influence to oppose the ICTY. At the end of the nineties, the peoples of the former Yugoslavia knew little about the war crimes committed by members of their own ethnic group. At that point, the prosecuted war crimes were denied, the ICTY accused were perceived as national heroes, and the Tribunal was considered controversial.

10 Most of the works have been written while the Outreach program had to be launched (September 1999-2000). Other work was published by ICTY-Outreach.

6 Chapter three, entitled “The ICTY 1999-2009”, concentrates on the activities of the ICTY Outreach program. By launching the Outreach program, the ICTY tried to communicate its work and its achievements to the constituents in the region. This chapter describes the initial difficulties, the main activities and the deficiencies of the program. Chapter four, entitled “An assessment of Outreach” evaluates the outreach efforts of the program and the fact that, rather than increasing public opinion in the region, public perception of the ICTY has actually declined in the years since Outreach was created.

7 The (impact of the) war in the former Yugoslavia In the eighties of the twentieth century the Socialist Federal Republic of Yugoslavia (SFRY) was characterized by uncertainty. Two long-term problems had never been solved: the degree of (political) centralization of the Yugoslav state and the unstable nationality issue.11 In the communistic country many (religious and ethnic) disputes were solved by the local authorities through force. Several factors increased the uncertainty. The death of the charismatic political and army leader on 4 May 1980 left the country behind in a power vacuum. While the communistic party had lost its popular leader, the economy of the country became stagnant: the unemployment rate in the eighties rose to almost 25 percent and the average real income decreased. 12 The end of the Cold War intensified the existing uncertainty: between 1989 and 1991 communist dictatorial regimes transformed in an unprecedented rate into more democratic forms of government. Communist establishments in Poland, East-Germany and Czechoslovakia fell within several weeks and political circumstances changed drastically in the neighbouring countries Hungary, Romania, Bulgaria and Albania. Because of the ideological decline of Communism and of the growing social- economic confusion throughout the country, ruling elites in Yugoslavia were in search of more and better legitimisation of their positions in power. 13 Therefore Yugoslavia decided in 1990 upon democratic parliamentary elections. The first politician who recognised opportunities in the problems of SFRY was the Serbian Slobodan Miloševi ć. After declaring support for ethnic Serbs in Kosovo, Miloševi ć rose quickly to power in Yugoslavian politics. 14 When Miloševi ć claimed that the rights of the Serbian minority in Kosovo were regularly violated it was the first time that a leader of the Yugoslav Communist Party declared support for one particular ethnic group. By calling for more rights for ethnic Serbs, Slobedan Miloševi ć took advantage of the problematic political

11 Ton Zwaan and Bob De Graaff, “Genocide en de crisis van Joegoslavië 1985-2005. Nationalisme, staatsmacht en massamoord” (Amsterdam/Antwerpen 2005) 64-65. 12 Zwaan and De Graaff, “Genocide en de crisis van Joegoslavië”, 64. 13 Ibidem, 64-65. 14 The Serbian minority in the autonomous province Kosovo claimed to be oppressed by the majority of ethnic Albanians. In 1987, Miloševi ć said in front of Yugoslavian camera’s to the Serbian minority: "You will not be beaten!". See The New York Times of 26 April 1987, "Protest Staged by Serbs In an Albanian Region", at: http://www.nytimes.com/1987/04/26/world/protest-staged-by-serbs-in-an-albanian- region.html?n=Top/Reference/Times%20Topics/Subjects/M/Minorities%20(US)&scp=1&sq=Protest%20Staged %20by%20Serbs%20In%20an%20Albanian%20Region;%2026%20April%201987&st=cse , viewed 12 July 2009, 18:00 and see also the BBC documentaries “Fall of Milosevic” and “The Death of Yugoslavia”.

8 status of Kosovo as an autonomous province. Miloševi ć became the first nationalistic politician of Yugoslavia. 15 In 1988, Miloševi ć was elected as president of the Yugoslavian republic Serbia. 16 Through populism, the Serbian leader strengthened his power over other provinces of Yugoslavia. The mass protests against communistic authorities of 1988-1989 led to the “anti- bureaucratic revolution” where politicians close to Miloševi ć obtained influential positions in power. 17 Through the populist and nationalistic anti-bureaucratic revolution, the Serbian president gained more control and influence over the Yugoslavian provinces Vojvodina, Kosovo and Montenegro. The anti-bureaucratic revolution effectively meant that the Serbian president Miloševi ć and his supporters controlled four out of the eight republics and autonomous provinces of the Yugoslav federation: only if the four other republics of the Yugoslavian federacy – , Croatia, Bosnia-Herzegovina and Macedonia – were united, could they stop Miloševi ć’s nationalistic program. The overturned balance of power in the Yugoslavian federation provoked nationalistic and often xenophobic separatism within all republics of the federation. Separatists in all Yugoslavian republics often used the same propaganda methods as the Serbian leader had done. In 1990 democratic elections were in all Yugoslavian republics won by nationalistic, usually xenophobic, parties that desired separation from the Yugoslavian federation. After winning nearly two-thirds of the seats in the Croatian parliament, the Croatian nationalistic leader Franjo Tu ñman was elected president. 18 The Croatian nationalists restored flags and other symbols of the fascist Ustaša-regime which were notorious for fighting alongside the Nazis during World War II and killing thousands Serbs and other non-Croats. 19 Once Tu ñman gained power, ethnic Serbs were removed from their positions in the government (such as police, security authorities, media and factories). Simultaneously, Serbian propaganda warned of an imminent threat of genocide by the Croatian authorities.

15 In doing so, Miloševi ć broke with the party and government policy, which had restricted nationalist expression in the SFRY since the time of its founding by Josip Broz Tito after the Second World War. Miloševi ć called for political change to reduce the autonomy of Kosovo, protect minority Serb rights, and initiate a strong crackdown on separatism in Kosovo. 16 In 1988, Slobodan Miloševi ć was re-elected as Chairman of the Presidium of the Central Committee of the League of Communists of Serbia. 17 The New York Times reported a “wave of ”, causing concern throughout Yugoslavia and leading to the resignation of government officials and to the election others that allied with Miloševi ć. 18 See BBC News of 11 December 1999, "Franjo Tudjman: Father of Croatia", at: http://news.bbc.co.uk/2/hi/europe/294990.stm , viewed 15 July 2009, 13:30. 19 Mark Thompson, “Forging War. The Media in Serbia, Croatia Bosnia and Hercegovina” (Luton, UK 1999) 135-191.

9 In August 1990, the Serbian minority in the Croatian republic rebelled against the Croatian authorities and declared the Republic of Serbian Krajina ( Republika Srpska Krajina ). The Serbian ethnic minority living in Croatia intended to become part of a ”greater-Serbia”. The Serbian president Miloševi ć supported the ethnic Serbs in Croatia by sending the Serb- dominated Yugoslav army to “oversee” the skirmishes. 20 With help of the Yugoslav Peoples Army ( Jugoslavenska Narodna Armija , JNA) the Serbian minority conquered a third of the Croatian country and declared themselves independent. 21 When the republics Croatia and Slovenia declared themselves independent from the Yugoslavian federation on 25 June 1991, the skirmishes escalated into a full-scale war. 22 On 15 January 1992, the European Community (EC) recognised Croatia as an independent country. President Tu ñman and president Miloševi ć signed a ceasefire between Croatia and Yugoslavia in January 1992. In February 1992 the UN Security Council established the United Nations Protection Force (UNPROFOR) in order to maintain the ceasefire. 23 The Yugoslavian army officially retreated from Croatia, and the UN dispatched 38.000 peacekeepers throughout the area. However, the army of the Yugoslav federation left soldiers, equipment and weapons behind for the rebellious Serbs of the Krajina area. 24 The lightly-armoured UN peacekeepers were not prepared for war. UPROFOR was limited in its mandate and its means. The mission was restrained because of a reluctant international community. The light armaments and the restricted rules of engagement made UNPROFOR merely an observer force. Meanwhile, the rebellious Serbs destroyed whole villages and cultural and religious monuments to erase the (history of the) existence of the Croatian inhabitants in the Krajina area. The warfare escalated after the republic of Bosnia-Herzegovina declared itself independent from Yugoslavia in April 1992. The Croatian president Tu ñman and his Serbian

20 See Judgment in the Case “Prosecutor v. Milan Babic”, Case No. IT-03-72-S, of 29 June 2004, at: http://www.un.org/icty/babic/trialc/judgement/index.htm , viewed 26 March 2009, 20:30. 21 On 12 May 1991 a referendum was held asking: "Are you in favour of the SAO Krajina joining the Republic of Serbia and staying in Yugoslavia with Serbia, Montenegro and others who wish to preserve Yugoslavia?". With 99.8% voting in favour, the referendum was approved and the Krajina assembly declared that "the territory of the SAO Krajina is a constitutive part of the unified state territory of the Republic of Serbia". See Prosecutor v. Milan Marti ć Judgement, 46, at: http://www.un.org/icty/martic/trialc/judgement/mar-tcjud070612e.pdf , viewed 14 July 2009, 13:00. 22 See the whole book of Zwaan and De Graaff, “Genocide en de crisis van Joegoslavië”. 23 Security Council Resolution 743 (1992). For background information on the mission profile and the mandate see “United Nations Protection Force, UNPROFOR”, at: http://www.un.org/Depts/dpko/dpko/co_mission/unprofor.htm , viewed 15 July 2009, 13:45. 24 See for example Zwaan and De Graaff, “Genocide en de crisis van Joegoslavië”, 163-165. See also CIJ ICTY Reports Archive, Day 118, "Spy Gives Insider View: Lazarevic says Croatian war directed from Belgrade", at: http://iwpr.net/?p=ict&s=c&o=332461&apc_state=hencictd-text...... -=-ict-publish_date....-e:>=-1.10.2002- publish_date....-e:<-1.11.2002 , viewed 27 March 2009, 11:00.

10 counterpart, Miloševi ć agreed to divide the republic between their countries. The supported the Bosnian-Croats that fought for a state of their own within Bosnia- Herzegovina while the Serbian-dominated Yugoslavian army fought on the side of the Bosnian-Serbs. Soon, the Serbian desire for a “greater-Serbia” clashed with the Croatian desire for a “”. Before long, the war in Bosnia-Herzegovina exceeded the previous war in Yugoslavia. The war led to the deaths of thousands, caused enormous refugee flows and brought huge material damage. 25 International media started to report the atrocities that happened throughout Bosnia- Herzegovina. 26 When the British news channel ITN showed images of skeletal men behind barbed wire, the broadcast was quickly compared with images of concentration camps of the Second World War. 27 The media attention caused a wave of indignation throughout the world. Everywhere people argued that that the world could not watch for the second time a systematic and organized extermination. U.S. President George H.W. Bush spoke in July 1992 about a possible "genocidal process" in the Balkans. 28 In August 1992, the NGO Human Rights Watch (HRW) issued a report entitled "War Crimes in Bosnia-Hertzegovina” which described extreme violations of International Humanitarian Law (IHL) against mainly citizens. The report described that the warfare had a policy which resulted in mass killings, disappearances of civilians, arbitrary detention and forced relocation of hundreds of thousands of civilians based on ethnicity or religion. As the violence was directed against civilians and since the violence was targeted along ethnic and

25 Zwaan and De Graaff, “Genocide en de crisis van Joegoslavië”, 154-203. 26 The American journalist Roy Gutman wrote for the weekly magazine Newsweek a series of influential articles about atrocities and violations of humanitarian law in Croatia and Bosnia-Herzegovina for which he later won the Pulitzer Prize. These articles "", 3 July 1992, "Prisoners of Serbia's War", 19 July 1992, "Like Auschwitz", 21 July 1992, "Witness' Tale of Death and Torture", 2 August 1992, "The war against Muslim and Croat civilians", 3 August 1992, "Personal account of terror", 3 August 1992, "Mass Rape", 23 August 1992, "Unholy War", 2 September 1992, "Death Camp Lists", 8 November 1992 en "Terror trail", 20 November 1992 were all published in Newsweek . These and other articles are bundled in Roy Gutman, “A Witness to Genocide. The 1993 Pulitzer Prize-Winning Dispatches on the ‘Ethnic Cleansing’ of Bosnia”(New York 1993). 27 The images of ITN were controversial: see also the VPRO, Tegenlicht episode “De zaak Milosevic. Kanttekeningen bij het proces”, at: http://www.vpro.nl/programma/tegenlicht/afleveringen/14130404/ , and “Concentratiekamp of opvangkamp. Wat was het kamp in Trnopolje precies?” and "De Zaak Milosevic. De Verdediging Aan Zet”, all viewed 10 April 2008. 28 The US president stated: “We know that there is horror in these concentration camps. I cannot confirm on hard evidence the – some of the charges that have been made. It is absolutely essential – whatever is going on there – that there be open inspection, and that humane treatment of the people in these concentration camps be guaranteed. But in all honesty, I can’t confirm to you of the claims that there is indeed genocidal process going on there.”. See Pierre Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the former Yugoslavia” (2004) 12-13.

11 religious lines, the NGO suspected genocide. 29 In its conclusion, the NGO recommended an international tribunal to investigate, judge and punish perpetrators of crimes. 30 In the London Conference of 26-27 August 1992 Yugoslav president Dobrica Ćosi ć, Serbian president Miloševi ć, Bosnian-Serb leader Karadži ć, Croatian president Tu ñman, and the Bosniak president Izetbegovi ć discussed ending the war. During this peace-conference, the German foreign minister Klaus Kinkel proposed the creation of an international tribunal. 31 After the Cold War, proposals to establish criminal courts were popular. 32 Proposals to create an international court were preceded by a number of statements proclaiming the perpetrators of grave breaches of the Geneva Conventions and other crimes were “individually responsible” and would be called to account. 33 The proposal of Kinkel became part of the final decision of the conference in London. 34 On 23 September 1992, Kinkel submitted the idea of a tribunal before the UN General Assembly. 35 In a letter of 24 November 1992 the British government, which held the presidency of the European Union, proposed “to draft a convention establishing an ad hoc tribunal to deal with war crimes and crimes against the humanity committed in the former Yugoslavia”. France, the United States (US) and various other UN Member States started to draft a statute for a tribunal to be established. 36 An internal UN study, the so called ‘Commission of Experts’, also proposed the establishment of an international tribunal. 37

29 Human Rights Watch, Report of 1 August 1992, “War Crimes in Bosnia-Hercegovina” (Volume I), 0839. 30 Hazan, Pierre, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the former Yugoslavia” (2004) 14. 31 Hazan, “Justice in a time of War”, 18 32 In response of the Iraqi invasion of Kuwait, the hostage taking of foreigners and atrocities committed in Kuwait were there proposals to create an international tribunal. Then Prime Minister of Great-Britain, Margaret Thatcher said in a television interview given on 1 September 1990: “If anything happened to those hostages then sooner or later when any hostilities were over we could do what we did at Nuremberg and prosecute the requisite people for their totally uncivilized and brutal behaviour. They cannot get out of these days by just saying: ‘well, we were under orders’. That was the message of Nuremberg.”. See ICTY, “The Path to The Hague”, 9. Then US president George Bush also mentioned Nuremberg several times and acting president of the council of ministers of the European Communities, Jacques Poos requested the UN Secretary-General to bring the Iraqi leaders before an international court. See ICTY, “The Path to The Hague”, 9 33 See for example the statements of the president of the UN Security Council of 4 August 1992, S/24378 and the acting US Secretary of State, Lawrence Eagleburger who named on 16 December 1992 amongst others Slobodan Miloševi ć as war criminal. See Hazan, “Justice in a time of war”, 30-34. Elie Wiesel and Eagleburger proposed to bring all war criminals before an international court for the former Yugoslavia. See ICTY, “The Path to The Hague”, 13, 65-67, 89-91. 34 The text states: “The Co-Charmen have undertaken to carry forward a study of the creation of an international criminal court.” See ICTY, “The Path to The Hague”, 63. President Cassese would later call it the “turning point”, see ICTY, “The Path to The Hague”, 13. 35 Hazan, “Justice in a time of War”, 23 36 See Michael Scharf, “Balkan Justice. The Story Behind the First International War Crimes Trial Since Nuremberg” (Durham, North Carolina 1997) 51-74. 37 Resolutions 764 (1992) of 13 July 1992 and 771 (1992) of 13 August 1992.of the UN Security Council affirmed in the course of 1992 the principle of individual responsibility for crimes under international law. Amid accounts of widespread violations of international humanitarian law and fundamental human rights in the

12 When the UN Security Council adopted on 22 February 1993 Resolution 808 it decided to establish an international tribunal. Under the authority of Chapter VII of the Charter of the United Nations, the Security Council announced that it:

“Decides that an international tribunal shall be established for the prosecution of persons responsible for serious violations of the international humanitarian law committed in the territory of the former Yugoslavia since 1991”. 38

By then, the long and bloody war in the former Yugoslavia had intensified. While the war between the former Yugoslavian republics of Croatia and Serbia had already caused the death of many thousands of citizens and the displacement of millions of refugees, these figures were easily exceeded by the casualties and the refugees resulting from the war in Bosnia-Herzegovina. 39 To describe the specific type of warfare, journalists invented the euphemism “ethnic cleansing” – where members of an ethnic majority persecute a minority to achieve ethnic homogeneity. Houses and apartments of the ethnic adversary were systematically plundered or burnt down and civilians were rounded up, captured and detained. In the process of ethnic cleansing, many citizens were beaten or killed, and many others were subject to systematic torture and rape. Through ethnic cleansing more than 70 per cent of the territory of Bosnia-Herzegovina had been conquered by the Bosnian-Serbs when the Security council decided upon the establishment of a war crimes tribunal to address these atrocities.

Ineffective Efforts on the Part of the Security Council Although the Security Council had created with this Resolution 827 (1993) an international court, most spectators were cynical. To end the war in Yugoslavia the UN Security Council had a history of passing many non-convincing resolutions. 40 The resolutions of the Security Council had produced little result: most resolutions were constantly violated. Increasingly, the Security Council appeared to be inflated. The unenforced resolutions made the Security Council look like a reluctant and ineffective institution and made its resolutions conflicts of the former Yugoslavia, the Security Council passed resolution 780 (1992) on 6 October 1992, establishing the Commission of Experts to provide conclusions on these accounts. This Commission of Experts’ provisional report of 9 February 1993 concluded that the establishment of an ad hoc international tribunal to try the perpetrators of atrocities in the former Yugoslavia: “would be consistent with the direction of its work”. 38 UN Security Council Resolution 808 (1993), at http://www.un.org/icty/legaldoc-e/basic/statut/S-RES- 827_93.htm , viewed 20 June 2009, 15:45 39 Zwaan and De Graaff, “Genocide en de crisis van Joegoslavië”, 57-203. 40 See for example Hazan’s list of unenforced Security Council Resolution: Security Council Resolution 713, 721, 743, 752, 776, 781, 798, 807, 836 and 837 in Hazan “Justice in a Time of War”, 22-23. Where Hazan for example, writes that: “Resolution 781 […] prohibits aerial surveillance of Bosnia, is violated five hundred times before subsequent resolution (816) authorizes flights of NATO aircraft to enforce compliance.” See Hazan, “Justice in a Time of War”, 23.

13 appear hardly more than symbolic. The history of unenforced resolutions made the creation of the international court also appear symbolic. The United Nations appeared even more reluctant and ineffective when it became clear that the U.S. would not invest large sums of money in the investigation of war crimes. M. Cherif Bassiouni, the leader of the commission that investigated war crimes in the former Yugoslavia, felt that the commission was hindered by the same institution that created it:

"We had zero resources to lead an investigation into war crimes that the U.N. Security Council, the most powerful organ in the international community, had entrusted us." 41

Furthermore, the Security Council was notorious for issuing resolutions such as Resolution 713 (1991) concerning the arms embargo to all the republics of the former Yugoslavia. 42 This Resolution was intended to stop the war, but the embargo had the effect of creating an unfair advantage for the Serbs. It had disastrous results for the Croats and especially for the weakly armed Muslims of Bosnia-Herzegovina, since almost all armaments and weapon factories of Yugoslavia were located in Serbia. Many skeptics perceived the establishment of a war crimes tribunal mostly as a public relations device of the western states. In the words of the French journalist Hazan:

“On the Richter scale of cynicism in politics, the creation of the ICTY is quite remarkable: The court served as an alibi for nonintervention.” 43

While the war was raging, international diplomats were trying to negotiate to achieve peace. It was clear that there could be no justice without peace, but it was equally clear that there could be peace without justice. Many observers were cynical because the ethics of an international court would probably not agree with the “real” politics as applied by most states. Thus, did it appear not very likely that the (always divided) international community would or could grant the international court the assistance it needed to become an effective court. Since two permanent members of the Security Council, Great-Britain and France, both had several thousand peacekeepers in the region, it appeared very likely that these states would insist on peace first– even at the cost of justice.

41 Hazan, “Justice in a Time of War”, 27. 42 See UN Security Council Resolution S/RES/713 of 25 September 1991, at http://www.nato.int/Ifor/un/u910925a.htm , viewed 20 June 2009, 15:00. De VN-veiligehidsraad besloot tot een wapenembargo om het conflict niet verder te laten escaleren. Het wapenembargo tegen Joegoslavië staat op slechte voet met Artikel 51 van het Charter van de VN waarin staat dat een staat het recht heeft om zichzelf te verdedigen. Zie http://www.un.org/aboutun/charter/ 43 Hazan,“Justice in a Time of War”, 191

14 The establishment of the ICTY On 25 May 1993, the UN Security Council decided to formally establish an international tribunal. 44 In the same resolution the Security Council decided that that all UN member states were obliged to “cooperate fully with the international tribunal” 45 and that:

“…all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests of assistance or orders issued by a Trial Chamber[…]”

Thus, by adopting Resolution 827, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) became a reality on paper. Practical arrangements for the establishment of the international tribunal had to be arranged by then Secretary-General of the UN, Boutros Boutros-Ghali. 46

By 25 May 1993, the international community had tried to pressure the leaders of the former Yugoslavian republics diplomatically, militarily, politically, economically, and – with Resolution 827 – through juridical means. As the international community had tried previously many times to stop the war (and to prevent war crimes) the newly established international tribunal did not impress observers initially. According to the American Assistant Secretary of State , the Tribunal was “widely viewed as little more than a public relations device”. 47 One of the strongest proponents of the Tribunal, then United States Ambassador to the United Nations Madeleine Albright, affirmed that: “There seemed to be a reasonable chance that the tribunal would fail and that once again the world community would be accused of promising much but doing little.” 48 The French journalist and tribunal- watcher, Pierre Hazan wrote:

44 SC Resolution 827 (1993). 45 Ibidem. 46 Ibidem. 47 Richard Holbrooke, “To End A War” (New York 1999) 189-190. 48 Madeleine Albright, “Mevrouw de Minister. Het persoonlijke verhaal van de machtigste vrouw van de VS” (Amsterdam 2004) 194. English translation by the author. According to Albright - one of the most committed proponents of the tribunal - almost everyone reacted skeptically as to whether another UN bureaucratic institution could and would be useful. When it was established, nobody believed that it would work. The media saw the court as a distraction - because the world community did not intervene in the massacres that were occurring in the Balkans. See also NRC Handelsblad, dated 11 maart 2006, “Dossiers, Joegoslavië Tribunaal", at: http://www.nrc.nl/dossiers/joegoslavie_tribunaal/ , viewed 11 February 2009. In Albright’s words before the ICTY Trial Chamber: “It was easy enough to take the first vote in February [1993] to get the Tribunal created, but nobody really believed that it would work. There were questions about how the Judges would be selected … And then a question was how to get a prosecutor. And that was very complicated, and nobody thought that would happen. And then nobody thought that there would ever be a court that actually functioned, that would be

15

“The establishment of the ICTY makes a show of addressing itself to the people of the Balkans, and reconciliation in the former Yugoslavia. In reality, its objective is less to ‘deter’ and to ‘reconcile’ Serbs, Croats, and Bosnians than to comfort Western public opinion through the judgment of a handful of criminals.” 49

The Tribunal was born into this skeptical environment. Established in The Hague, in The Netherlands, the courtroom was located more than 1,500 kilometres from the region over which it had jurisdiction. As time passed, it became clear that the international court could not work effectively while the war in the former Yugoslavia was still raging. It appeared that the skeptics were right. In 1995, the Croatian army launched ‘’, and conquered the Krajina area. Approximately 150,000 to 200,000 ethnic Serbs fled the approaching Croatian forces to Serb-held parts of Bosnia and Serbia. 50 It was one of the most efficient ethnic cleansing operations of the Balkans. However, the war completely transformed by the end of 1995. On 28 August 1995 a mortar shell fired by the landed on civilians in the crowded market of Sarajevo. The television crews on the scene filmed the hellish scene including the blood and body parts. By that time the long and bloody had resulted in the deaths of at least 10,000 people, including almost 1,800 children. 51 Because of the massacre of innocent civilians, international politicians felt they had to act: As soon as technical and weather conditions allowed, NATO Operation “Deliberate Force” commenced. Because of the successful Croatian military operation Storm, the Bosnian-Serbs already had lost the initiative on the war in Bosnia-Herzegovina. The wide NATO air strikes against Bosnian-Serb infrastructure and units compelled the Bosnian-Serbs to negotiate for peace. By the end of 1995, all warring parties were ready to negotiate peace. 52

set on what the precedents were going to be. And we then in May [1993] voted how the procedure of the Tribunal would work. And then still nobody thought it would work. They said that would never be indictees, and then they said there would never be any trials, and then they said there would never be any convictions, and there would never be any sentencing…”. See Mirko Klarin, “The Tribunal’s Four Battles”, Journal of International Criminal Justice, Vol.2, No.2 (2004) 546-557. 49 Pierre Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the former Yugoslavia” (2004) 42. 50 See also The Prosecutor of the Tribunal against Indictment, Case No: IT-01-45-I, at http://www.un.org/icty/indictment/english/got-ii010608e.htm , viewed 20 June 2009, 15:15. 51 See also BBC News report by Jim Fish, "Sarajevo massacre remembered", at http://news.bbc.co.uk/2/hi/europe/3459965.stm , viewed 10 March 2009, 16:30. 52 For more information concerning the negotiations, see the whole book “To End A War” by Holbrooke.

16 The Tribunal is both independent of and dependent on the States of the International Community. Judge Claude Jorda 53 Chapter 1: The ICTY 1993-1999

The ICTY pre-operational (1993-1994) The practical problems facing the ICTY at its inception appeared endless: to grow from a paper report of 35 pages 54 to an active international prosecutorial and juridical body it needed judges, a prosecutor, a registrar, investigative and support staff, an extensive interpretation and translation system, a legal aid structure, premises, equipment, courtrooms, detention facilities, guards and all the related funding. 55 When it was formally established by Resolution 827 in May 1993, it was not even certain if The Hague would be the seat of the Tribunal. 56

Election of Judges and Establishment of Rules and Procedures On 16 September 1993, the UN High Commissioner for Refugees reported that, as of that date, the war in Yugoslavia produced 3,6 million refugees. 57 The UN negotiator Thorvald Stoltenberg reported 200,000 dead. 58 By then, a new war had started in Bosnia between two former allies, the Bosniaks (Bosnian-Muslims) 59 and Bosnian-Croats. While Croats in Bosnia shelled the Bosniaks in Mostar, the General Assembly rejected any of the judges that could be accused of religious or cultural sympathy towards any of the warring parties. But by the end of September 1993, the UN General Assembly had elected eleven judges. Two months later, on 17 November 1993, the newly elected judges met in The Hague. In the Peace Palace of The Hague, the judges elected the Italian judge Antonio Cassese as the first president of the ICTY. 60 During their first months, the judges created the internal

53 See press release of 20 November 2000, "Speech by his Excellency, Judge Claude Jorda, President of the International Criminal tribunal for the former Yugoslavia, to the UN General Assembly." at http://www.icty.org/sid/7806 , viewed 24 June 2009, 13:30. 54 See Annex 4: Statute of the ICTY. 55 See 1994 Annual ICTY Report, S/1994/1007, 15. 56 See UN SC Resolution 827 (1993). 57 Hazan, “Justice in a Time of War”, 43. 58 Ibidem, see also The New York Times article by Stephen Kinzer, "Bosnian Muslims and Serbs Agree to Four- Month Truce" of 1 January 1995, at: http://www.nytimes.com/1995/01/01/world/bosnian-muslims-and-serbs- agree-to-four-month-truce.html , viewed 22 April 2009, 10:30. 59 In this thesis I use ‘Bosniaks’ for the Bosnian -Muslims in view of the fact that the Bosnian government adopted in 1994 national legislation to name those that until then identified themselves as Muslims, Bosniaks. The new implementation of an old term was resisted by Serb and Croat nationalists. See also Mark Thompson, “Forging War. The Media in Serbia, Croatia Bosnia and Hercegovina” (Luton, UK 1999) 5. 60 President Cassese remembered that for the inauguration ceremony “the UN hired judges robes at a local tailor for 25 gvuilders each”. According to the first President of the Tribunal were the hired robes "symbolic" as “the

17 procedures of the court. Within four months the rules of procedure and evidence of the court and rules governing the detention of persons awaiting trial were adopted by the judges. 61 A Headquarters Agreement was negotiated with the government of The Netherlands – making The Hague the seat of the Tribunal. 62 The judges also drafted internal regulations for each department of the Tribunal, such as the Victims and Witnesses Section (VWS). 63 At this point, the ICTY was barely noticed outside The Hague. The new court needed cases and it needed defendants. For this, however, the ICTY needed a prosecutor.

Appointment of a Prosecutor On 21 October 1993 the Security Council appointed the Venezuelan attorney Ramón Escovar Salom of Venezuela as the first prosecutor of the ICTY. Four months later, before ever setting foot in The Hague, the newly elected prosecutor informed the UN Secretary-General Boutros Boutros-Ghali (1992-1997) that he would no longer be available as he would become minister of justice in Venezuela. 64 A year after the formal establishment of the ICTY, the Security Council appointed the South African judge Richard Goldstone as ICTY prosecutor. Several months after appointing Goldstone, the Security Council decided to increase the mandate of the prosecutor by including the International Criminal Tribunal for Rwanda (“ICTR”) under his prosecutorial authority. 65 By July of 1994, the ICTY had a registrar, judges and a prosecutor, but it still had difficulties recruiting the supporting staff. By the time Goldstone was appointed, the Australian deputy prosecutor Graham Blewitt had hired eleven employees for the Office for the Prosecution (“OTP”). 66 Where in many national courts, eleven people investigate one murder case, the eleven employees of the OTP had to investigate hundreds of thousands of

UN did not want to spend money at the trial of war criminals from former Yugoslavia". Translation by the author. See Cees Banning and Petra De Koning, “Balkan aan de Noordzee. Over het Joegoslavië-tribunaal, over recht en onrecht ” (Amsterdam/Rotterdam 2005) 27. 61 See the Annual 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, to the Security Council and the General Assembly, S/1994/1007, 17. 62 See the 1994 Annual Report of the ICTY, S/1994/1007, 44-45. 63 See the 1995 Annual Report of the ICTY, S/1995/728, 27-28. 64 See Banning and De Koning, “Balkan aan de Noordzee”, 33 and the Annual ICTY Report of 1994, S/1994/1007, 7 where the Tribunal stated in its first annual report to the General Assembly that the ICTY Office of the Prosecutor (“OTP”) had been ”handicapped” by the long delay in the appointment of a prosecutor. See also annual report S/1995/728, 38 where it is noted: “during the summer of 1994 the image [of the ICTY] suffered greatly owing to the absence of a Chief Prosecutor, investigators and an adequate budget.”. 65 Also it was decided to combine the appeals chamber of the ICTY with the appeal chamber of ICTR. The Security Council created the International Criminal Tribunal for Rwanda (ICTR) by Resolution 955 of 8 November 1994. See also the ICTR website at http://www.ictr.org/default.htm , viewed 20 June 2009, 16:45. 66 Hazan, “Justice in a Time of War”, 53.

18 murder cases in a region half the size of France, where the fighting continued heavily and where they had no authority. 67 The recruitment problems had a financial background: as the Tribunal was funded through a temporary budget, it could not agree to any long term commitments. 68 As a result of insufficient funding, the new court could not offer any long term contracts for its employees nor could it engage in long term contracts for premises or services. Although the jurisdiction of the ICTY prosecutor had been effectively doubled with the inclusion of ICTR cases, the budget of the Tribunal was temporary and insufficient: the ICTY received just 11 million dollars from the General Assembly for its first year. To put this into context: the expense for a court management computer system for the OTP represented 2.3 million of the 11 million dollar budget. 69 When the budget for the Tribunal was finally approved by the General Assembly in New York, the ICTY became more viable. The Tribunal leased a wing in the Aegon building in The Hague and began building a modern courtroom. The Tribunal commenced the building of the detention unit within a Dutch prison in Scheveningen, near the Tribunal premises. Crucial assistance came by voluntary contributions by various UN member states. Several states provided the OTP with a loan of personnel. In particular, the expansion of the prosecutors office gave the Tribunal more credibility. The Tribunal grew further when the registrar in The Hague received the authority to engage staff directly rather than through the United Nations Headquarters in New York. Thus, after the initial budgetary considerations and recruitment difficulties, by July of 1994 the foundations for the ICTY were finally in place. 70

The Goldstone era (1994-1996)

When the newly elected prosecutor Richard Goldstone arrived in The Hague, he immediately received criticism from the media: on his first working day Goldstone was interviewed by the U.S. television program 60 Minutes which named the segment of its programme on ICTY “An Exercise in Hypocrisy ”. 71 It was not only the media, but also the UN who pressured this

67 See the whole book of Michael Scharf, “Balkan Justice. The Story Behind the First International War Crimes Trial Since Nuremberg” (Durham, North Carolina 1997) for more information concerning the first prosecutors at the ICTY and the first case of the ICTY. 68 See the 1994 Annual ICTY Report, S/1994/1007, 7. 69 See Banning and De Koning, “Balkan aan de Noordzee”, 40. 70 See the 1994 Annual Report of the ICTY, S/1994/1007, 16. 71 See Banning and De Koning, “Balkan aan de Noordzee”, 52.

19 expensive Tribunal to succeed. 72 Goldstone realized that after more than a year of its existence, the ICTY still needed to produce results: the prison needed detainees and the court needed accused. But before arresting suspected war criminals, the prosecutors first had to start indicting them. To instigate the prosecutions, Goldstone formulated a so-called “pyramid indictment strategy”. 73 In this prosecution plan, the ICTY prosecutors would investigate many lower and intermediate level perpetrators of war crimes. In time, Goldstone intended to indict the persons higher-up in the chain-of-command. The strategy of the prosecution caused the first conflict within the Tribunal. The judges disagreed with the indictment strategy since, given its ad hoc and temporary nature, the ICTY would not have enough time to prosecute lower and intermediate level perpetrators and still have enough time and resources for the “bigger fish”. After the presentation of the pyramid indictment scheme, the judges immediately issued a press release expressing their anxiousness with the formulated strategy. 74 Although the media, the United Nations and the ICTY judges were skeptical of the prosecutorial strategy, prosecutor Goldstone started issuing indictments against “secondary” suspected war criminals. On 4 November 1994 – within four months after the election of Goldstone - the OTP issued its first indictment against the Bosnian-Serb concentration camp commander Dragan Nikoli ć.75 The second indictment followed on 13 February 1995 against a group of 21 Bosnian-Serbs who were charged with committing atrocities against Muslim and Croat civilian prisoners held at Omarska prison camp in the Prijedor district, where under brutal conditions, more than 3,000 Bosniaks and Bosnian-Croats were detained. 76 In that prison camp, many had been murdered, raped, sexually assaulted, and severely beaten. One of the 21 accused, the Bosnian-Serb Duško Tadi ć, had been arrested by the German authorities even before the ICTY issued its indictment. 77 Before the German government could transfer

72 Hazan, “Justice in a Time of War”, 57. 73 Hazan, “Justice in a Time of War”, 59. 74 See press release of 1 February 1995, "The Judges of the Tribunal for the former Yugoslavia express their concern regarding the substance of their programme of judicial work for 1995.", at http://www.icty.org/sid/7251 , viewed 8 April 2009, 11:30. 75 See the 1995 Annual Report of the ICTY, S/1995/728, 6. 76 See ICTY press release of 13 February 1995, “The International Tribunal for the former Yugoslavia charges 21 Serbs with atrocities committed inside and outside the Omarska death camp”, at http://www.icty.org/sid/7250 viewed 15 April 2009, 14:00. 77 In 16 February 1994, the Bosnian Muslim refugee Refic Saric already had been arrested by Danish police after testimonies of other refugees that identified Saric as a prison guard who had tortured Muslims in Bosnia. As the ICTY did not request deferral, the Danish court initiated its own proceedings, culminating by November 1994 in the conviction of Saric on 14 counts of gross violence, leading to two deaths of fellow Muslims sentencing Saric to eight years of sentence. In August 1995, Denmark's Supreme Court upheld his conviction. See also "Trial Watch", at: http://www.trial-ch.org/en/trial-watch/profile/db/legal-procedures/refik_saric_517.html , viewed 12 March 2009, 11:30.

20 Tadi ć, the German parliament had to enact legislation concerning cooperation with the Tribunal. It was on 26 April 1995 – almost a year after the presentation of the prosecutorial strategy - that the first accused of the ICTY made his initial appearance before the Trial Chamber. 78 During the same month that the refugees were being executed in Srebrenica, the prosecutors of the Tribunal issued five indictments; one against the Bosnian-Serb camp commander Duško Sikirica and his 12 subordinates, accusing them of killing, sexually assaulting and torturing detainees of the Keraterm prison camp; one indicting six persons with 56 separate charges for their role in the campaign of terror against the non-Serb civilian population in Bosanski Šamac in northern Bosnia; and one indictment accusing two prison commanders, Goran Jelisi ć and Ranko Češi ć, for their crimes against Bosniak and Croat detainees in in Br čko. Some days later, the Tribunal confirmed the indictment against the self proclaimed president of the Croatian-Serb administration in Krajina, Milan Marti ć, accusing him of ordering a cluster bomb rocket attack against the civilian population in the Croatian capital Zagreb in May 1995. On 25 July 1995, the Office of the Prosecutor indicted the Bosnian-Serb leaders Ratko Mladi ć and Radovan Karadži ć for events preceding Srebrenica, such as the atrocities perpetrated against civilian population in Bosnia- Herzegovina, the sniping campaign against civilians of Sarajevo and the taking of UN Peacekeepers as hostages and using them as human shields. On 16 November 1995, an additional indictment was confirmed, accusing both Bosnian-Serb leaders of direct responsibility for the genocide in Srebrenica. 79

78 The case started on 7 May 1996, and on 14 July 1997, Tadi ć was sentenced to 20 years imprisonment. For the first time it was proven beyond reasonable doubt in a trial chamber that an accused had committed crimes against humanity and violated the laws or customs of war. See press release of 6 May 1996, “The Tribunal's first trial : another step in the fulfillment of the Tribunal's mandate” at http://www.icty.org/sid/7361 , viewed 15 April 2009, 14:45; and “Tadi ć (IT-94-1) Prijedor”, at: http://www.icty.org/case/tadic/4 , viewed 22 April 11:45 and see De Morgen, of 18 July 2008 "Joegoslaviëtribunaal laat Tadic vervroegd vrij", at: http://www.demorgen.be/dm/nl/990/Buitenland/article/detail/352567/2008/07/18/Joegoslavietribunaal-laat- Tadic-vervroegd-vrij.dhtml viewed 12 March, 13:30. 79 On 4 July 1995, while the ICTY was in summer recess, Bosnian-Serb forces commanded by General Ratko Mladiç shelled the UN safe area Srebrenica in Bosnia-Herzegovina. Approximately forty thousand Muslim refugees had fled to the village which was declared a ‘safe haven’ by the Security Council. For some days, the underequipped and understaffed Dutch UN peacekeepers endured a siege of the town, but eventually after several days the UN soldiers surrendered. The Bosnian-Serbs divided the Muslim refugees, separating the men, and on 12 and 13 July 1995, about twenty thousand women, children and elderly Muslim citizens were expelled from Srebrenica. The Muslim men received a different treatment: out of a group of fifteen thousand Muslim men, approximately four thousand reached the Bosnian city Tuzla. The others had disappeared. The survivors brought with them stories of atrocities, executions and massacres against the unarmed Muslim refugees. See also the Netherlands Institute for War Documentation (NIOD), at: http://www.niod.nl/default.asp , viewed 20 June 2009, 15:15. See also the press release of 25 July 1995, “Milan Martic, Radovan Karadzic and Ratko Mladic indicted along with 21 other accused”, at http://www.icty.org/sid/7237 , viewed 17 April 2009, 11:00.

21 During 1995, the Tribunal judges confirmed eight indictments against 46 individuals and issued 46 arrest warrants. As the Tribunal had no authority to arrest the accused, it gave the arrest warrants to the various embassies and official representatives. However, some entities had no official representation and others did not desire the documents. 80 The result of the indictments and arrest warrants were consequently limited. By indicting suspected war criminals, the ICTY had the power to stigmatise them but it could not force the authorities of the region to arrest the accused. Accordingly, Richard Holbrooke, the American Assistant Secretary of State who negotiated for peace with the leaders of the region, barred two of the indicted local leaders, Radovan Karadži ć and Ratko Mladi ć from participation in any international peace conference. 81 The reactions to the indictments were diverse; the media coverage was usually positive towards the work of the Tribunal, but it often stressed the ineffectiveness of the arrest warrants issued. But many politicians thought the indictments complicated the conflict in the former Yugoslavia further and as such, politicians often were negative about the work of the Tribunal. In particular, the countries that had peacekeepers in the region, such as France and Great-Britain, became hostile to the ICTY. The Secretary-General, Boutros Boutros-Gali, expressed “outrage” about the indictment against the Bosnian-Serbian leader Karadži ć.82 Goldstone however emphasised the independence of the prosecution efforts of the ICTY and constantly tried to increase the support for the Tribunal.

80 As the second Annual Report of the ICTY noted: “the cooperation of states – an obligation under the statute – begins with their willingness to receive the Tribunal’s official documents”. See S/1995/728, 24. 81 As Holbrooke stated: “Under international law they will be arrested if they set foot on the soil of the United States or any other member of the E.U. […] you understand that we will not, and cannot, compromise on the question of the war crimes tribunal.” “But you need Karadži ć and Mladi ć to make peace” he [Miloševi ć] replied “That is your problem” See Holbrooke, “To End A War”, 107. In such way, a result of the indictments was that ‘suspects’ became stigmatised as ‘accused’. Nevertheless, the prison cells of the tribunals’ detention unit continued to remain nearly empty. In 2008-2009 Karadži ć argued before the ICTY Trial Chamber he had a deal with the United States, see "Tribunaal verwerpt immuniteit Karadzic" of Knack.be, at: http://www.knack.be/nieuws/europa/tribunaal-verwerpt-immuniteit-karadzic/site72-section25-article36282.html , and BN DeStem, "'Deal' Holbrooke stopt zaak-Karadzic niet", at: http://www.bndestem.nl/algemeen/buitenland/5225242/Deal-Holbrooke-stopt-zaakKaradzic-niet.ece , and NRC Handelsblad of 9 July 2009, "Tribunaal wijst verzoek Karadzic af", at: http://www.nrc.nl/nieuwsthema/karadzic/article2295658.ece/Tribunaal_wijst_verzoek_Karadzic_af , all published and viewed on 8 July 2009, 21:30. 82 See Nu.nl van 26 April 2009, at: http://www.nu.nl/algemeen/1955060/voormalige-vn-baas-woedend-over- aanklacht-karadzic.html , viewed 29 April 2009, 10:00; see also Annual Report of the ICTY to the Security Council and the General Assembly: “The Tribunal has been called upon to dispense justice while warfare, very often pursued by illegal means and methods, continues. High-ranking planners and perpetrators of war crimes are still able to take shelter from prosecution under the protective umbrella of military or political power. The Tribunal, clearly, can expect no cooperation from those authorities who may have been complicit, or at least negligent, in preventing serious violations of international humanitarian law, and it does not anticipate that they will surrender any suspects, or themselves, to the Tribunal.” S/1994/1007, 42.

22 The work of the Tribunal was complicated greatly by the continued warfare in the former Yugoslavia. The war hindered ICTY logistics such as the examination of mass graves, the calling of witnesses, the conduct of investigations in the field and the execution of arrest warrants. The lack of freedom of movement of the ICTY investigators and the continuation of hostilities set the prosecution of suspected war criminals aside. IFOR, and later the international peacekeepers of SFOR, 83 assisted the ICTY prosecutors in their investigations of the crime scenes in the region. To better support their investigative teams, the OTP opened offices in Belgrade, Sarajevo and Zagreb. As result of the first investigations, the publications of the indictments and the progress made in the trial chambers, media coverage became more regular. 84 However, most media were still skeptical about the effectiveness of the Tribunal. 85 It was clear that the Tribunal needed detainees, but no arrests were being made. As time went by, it appeared that the international forces deployed in the region did not feel responsible to arrest the indicted war criminals. The peacekeepers were concerned that arrests of popular war criminals would provoke unrest and reprisals among the populations. 86 Although the international army consisted of approximately sixty thousand soldiers equipped with the best technology in the world, there was no action on the hunt for indicted war criminals, nor did the secret services of the Western states share their evidence about war crimes and war criminals. Prosecutor Goldstone was becoming increasingly worried about the lack of detainees when, on 30 January 1996, the Bosnian-Serb colonel Aleksa Krsmanovic and the Bosnian- Serb general Djorde Djukic accidentally drove into a Bosniak-controlled zone, where they were arrested by the Bosniak authorities for their responsibility in the siege of Sarajevo. Although ICTY prosecutors had not indicted the two Bosnian-Serbs, Goldstone requested a transfer of custody from the Bosnian authorities to the ICTY. 87 When Djorde Djukic refused

83 A little more than a year after the signing of the Dayton agreement, on 21 December 1996, the Implementation Force (IFOR) was taken over by the Stabilisation Force (SFOR). Although the name international peacekeepers had changed, its the mandate was similar as IFOR. See also http://www.nato-otan.org/ifor/ifor.htm , viewed 21 June 2009, 12:00. 84 See the Annual Report of the ICTY to the Security Council and the General Assembly, S/1995/728, 37. 85 See the Annual Report of the ICTY, S/1995/728, 37. 86 See Holbrooke, “The End a War”60-79, where Holbrooke explains the exaggerated fear of the American military establishment for a "mission creep." 87 The prosecutor amended the status of the Bosnian-Serbs into ‘witness and possible accused’ and several days later both Bosnian-Serbs arrived in the detention unit in The Hague, see press release of 1 March 1996, "General Djukic indicted", at: http://www.icty.org/sid/7407 , press release of 3 June 1996, "Djukic case terminated by the death of the accused.", at: http://www.icty.org/sid/7346 , press release of 7 February 1996, "Tribunal's Prosecutor requests Bosnia to provisionally arrest General Djukic and Colonel Krsmanovic.", at: http://www.icty.org/sid/7419 , press release of 14 February 1996, "Press statement by Justice R.J. Goldstone,

23 to appear as a witness, the prosecutors indicted the Bosnian Serb General for his involvement in the indiscriminate shelling of Sarajevo civilian areas during which thousands of people had been killed. By March 1996, the ICTY had indicted 53 persons, but had only Djukic and Tadi ć in custody. Two month later, the indicted Bosnian-Serb general died of cancer. Throughout 1996 the Tribunal continued to issue indictments. In June 1996, the ICTY issued its first indictment dealing specifically with sexual offences such as gang rape, torture and enslavement of Muslim women. 88 The ICTY “Foca” indictment was legally groundbreaking as it was the first time that sexual assaults were classified as torture and enslavement as a crime against humanity. 89 Between July and November 1996, the national authorities of Croatia and Bosnia-Herzegovina and the international peacekeeping force assisted the ICTY prosecutors with the first exhumation of mass graves. 90 The first exhumations recovered over 450 bodies from four graves that were linked to massacres in the Srebrenica enclave in July 1995 and a fifth mass grave exhumation recovered 200 civilian bodies from the Vukovar hospital that had been conquered by the Yugoslav People Army in late 1991. The majority of the 650 victims recovered died from multiple gunshot wounds. Some were found with their hands bound and a number had been blindfolded prior to execution. 91 Because of the publicity of the evidence from the mass graves, the Tribunal gained public support. As of April 1996, 57 arrest warrants had been sent to the national authorities of the region, but none had been executed. 92 At the end of April 1996, the judges issued a press release where they referred to the possibility of sanctions by the Security Council (and to the fact that no prior sanction had actually been implemented). The judges speculated that such

Prosecutor of the ICTY.", at: http://www.icty.org/sid/7417 and the press release of 13 February 1996, "General Djukic and Colonel Krsmanovic to be transferred to The Hague.", at: http://www.icty.org/sid/7418 , all viewed 29 April 2009, 11:00. See also De Volkskrant of 2 March 1996, "VN-tribunaal klaagt Servische generaal aan", at: http://www.volkskrant.nl/archief_gratis/article671574.ece/VN-tribunaal_klaagt_Servische_generaal_aan , viewed 13 March 2009, 10:30. 88 See press release of 27 June 1996, "Gang rape, torture and enslavement of Muslim women charged in ICTY's first indictment dealing specifically with sexual offences.", at: http://www.icty.org/sid/7334 , viewed 24 June 2009, 15:15. 89 See press release of 4 March 1998, "Dragoljub Kunarac is the first accused of rape and torture of Bosnian Muslim women to turn himself in.", at: http://www.icty.org/sid/7687 , viewed 29 April 2009, 11:00. 90 See press release of 5 July 1996, "First exhumation by ICTY to begin in Srebrenica area.", at: http://www.icty.org/sid/7329 , viewed 24 June 2009, 15:15. 91 See press release of 29 July 1997, "The 1997 exhumations program commences in Brcko.", at: http://www.icty.org/sid/7483 , viewed 17 April 2009, 12:00. See also press release of 15 April 1998, "The 1998 exhumations programme is about to begin.", at: http://www.icty.org/sid/7676 , viewed 24 June 2009, 15:15. See also De Telegraaf of 9 July 2009, "Dilemma's voor nabestaanden Srebrenica", at: http://www.telegraaf.nl/buitenland/4366561/__Dilemma_s_voor_Srebrenica__.html , viewed 10 July 2009, 17:00. 92 See press release of 26 April 1996, "The Judges take stock of the situation of the Tribunal on the eve of the first trial.", at http://www.icty.org/sid/7365, viewed 21 April 2009, 12:30.

24 sanctions would never be forthcoming. 93 The lack of assistance, by regional states and by the international community, made the judges of the Tribunal concerned that its mission would never be fulfilled. 94 The judge elected president of the Tribunal, President Antonio Cassese (1993-1997) tried to increase the pressure on the national authorities, and called for a boycott on the eve of the Olympic Games at Atlanta. 95 It was a great relief for the ICTY when on 18 March 1996, two accused were captured in two different countries: Zejnil Delali ć by the German police and Zdravko Muci ć by the Austrians. Less than two months later, on 2 May 1996, the indicted Hazim Deli ć and Esad Landžo were arrested by the government of Bosnia-Herzegovina and transferred to the detention unit of the ICTY. In particular, the arrests of Deli ć and Landžo were important. It was the first time an arrest warrant of the ICTY had been executed by a state of the region, and the first time that persons were arrested for war crimes against Serbs. The four newly arrested were prosecuted together and formed the first combined case at the ICTY. Combining cases for accused whose alleged crimes shared locations and/or dates would become a common practice for the Tribunal. 96 The cooperation of the region was further improved when the Bosnian-Serb Dražen Erdemovi ć was transferred to ICTY by the Serbian authorities. The ICTY’s investigators had indicted the former executioner Erdemovi ć after he had reported to an Amercian journalist with ABC News that his unit had shot "about 1,200" men during a period of 24 hours. Erdemovi ć testified on camera concerning his own role in the massacre at Srebrenica, and openly admitted killing scores of civilians. Because of his willingness to talk and the fact that he had served under General Mladi ć, the new detainee was an explosive witness. 97 On 31

93 See press release of 26 April 1996 supra 92. 94 Ibidem. A year before, the ICTY judges had successfully supported the Tribunal through the issuance of a press release. At the end of 1995, the budget of the United Nations was strained and the Organisation requested the tribunal to cut its spending. See the NY Times article by Barbara Crossette, "Four Months Into Its Budget Year, the U.N. Says It Is Broke", at: http://www.nytimes.com/1996/04/30/world/four-months-into-its-budget- year-the-un-says-it-is-broke.html , viewed 29 April 2009, 16:20 and see "Chronology of the UN Financial Situation" of http://www.globalpolicy.org/component/content/article/224/27239.html , viewed 29 April 2009, 16:30. The judges requested the ICTY that they be exempted of budgetary constraints otherwise the “[..] flow of indictments would cease, leaving heinous crimes to go uninvestigated and unpunished.”. See press release of 9 October 1995, "The Judges request that the International Tribunal be exempted of budgetary remains.", at http://www.icty.org/sid/7224 , viewed 29 April 2009, 18:00. The judges stated that the existence of the tribunal would be at stake if it lacked funds. 95 See press release of 13 June 1996, "The President of the International Criminal Tribunal for the former Yugoslavia calls for a sports boycott.", at http://www.icty.org/sid/7340 , viewed 21 June 2009, 12:30. 96 The four newly arrested were prosecuted together and formed the first combined case at the ICTY. See (IT-96- 21) Čelebi ći Camp at http://www.icty.org/cases/party/674/4 , viewed 21 June 2009, 12:35. 97 See The New York Times article of 13 March 1996 by Jane Perlez, "Serb Leader Expected to Turn Over Key War Crimes Suspects", at: http://query.nytimes.com/gst/fullpage.html?res=9504EED81639F930A25750C0A960958260 and see The New York Times article of 8 March 1996 by Stephen Engelberg, "U.N. Prosecutor Asks Serbs to Hand Over War-

25 May 1996, Dražen Erdemovi ć pleaded guilty to murder as a crime against humanity before the Tribunal. On 29 November 1996 the trial chamber of the Tribunal sentenced Dražen Erdemovi ć to ten years in prison for his part in the mass killing and genocide at Srebrenica. 98 Within several months the Tribunal had its first guilty plea and first sentence. Contrast this trial to the trial of Dusko Tadi ć, who pleaded not guilty: the pre-trial and trial phase took over two years with five years of appeals to follow. 99 As the ICTY had few detainees and even fewer cases, the media did not spend much time covering the proceedings. But the ICTY needed publicity to gain more public support to persuade states to cooperate with the Tribunal. The ICTY found a solution in Rule 61 of its Rules of Procedure and Evidence which allowed indictment proceedings (including witness testimonies) to be publicized. The Security Council of the UN would be officially informed of a State’s lack of cooperation with a Rule 61 warrant. 100 On 27 June 1996, almost a year after the , the Tribunal held Rule 61 hearings and issued international arrest warrants against Mladi ć and Karadic. 101 The testimonies of the French investigator Jean-Rene Ruez and several Dutch peacekeepers, and statements of the executioner Dražen Erdemovi ć and one of the victims painted a horrendous but remarkably detailed account of the Srebenica massacre. The international media suddenly paid more attention to pending arrests of the accused war criminals. One of the consequences of the increased attention by the media was that the indictees became stigmatised as criminals, and were unable to travel beyond international borders. 102

Crimes Suspect", at: http://query.nytimes.com/gst/fullpage.html?res=9503EFDA1F39F93BA35750C0A960958260&partner=rssnyt& emc=rss viewed 10 March, 12:30. See also ICTY press release of 30 March 1996, "Erdemovic and Kremenovic transferred to The Hague.", at: http://www.icty.org/sid/7387 , and press release of 7 March 1996, "Press statement by Justice R.J. Goldstone, Prosecutor of the ICTY.", at: http://www.icty.org/sid/7404 , viewed 24 June 2009. 98 Dražen Erdemovi ć appealed and his sentence was reduced to five years on 5 March 1998 by the Appeal Chamber. See Case IT-96-22-Tbis, Prosecutor v. Dražen Erdemovi ć Sentencing Judgement of 5 March 1998 at: http://www.icty.org/cases/party/683/4 , viewed 24 June 2009, 15:30. 99 The conflict in the former Yugoslavia had characteristics of an international war between the republics Serbia, Croatia and Bosnia-Herzegovina. Simultaneously, the conflict had characteristics of a civil war within Bosnia- Herzegovina as Bosnian-Serbs, Bosnian-Croats and Bosnian-Muslims fought each other. During the pre-trial of Tadi ć, ICTY judges decided over this matter. See Tadi ć (IT-94-1) Prijedor, at: http://www.icty.org/case/tadic/4 , for the indictment, transcripts, Trial Decisions, Trial Orders, Trial Judgement, Appeals Chamber Decisions, Appeals Chamber Orders, Appeals Chamber Judgement, President's Decisions and President's Orders, in the Tadi ć case, viewed 21 June 2009, 13:00. 100 See ICTY Rule 61 “Procedure in Case of Failure to Execute a Warrant” at Annex 5: The Rules of Procedure and Evidence of the ICTY. 101 See press release of 22 May 1996, "Evidence against Radovan Karadzic and Ratko Mladic will be publicly displayed beginning on 27 June.", at: http://www.icty.org/sid/7356 , The Hague, 22 May 1996 102 Prosecutor Goldstone declared that the “War criminals in Bosnia have become pariahs. They have become prisoners in a very small area within their own country. They are not even free to move around their own country.” See Goldstone, “Human Rights, Peace and Justice in Europe” (Europa lezing, Utrecht 1996) 23.

26 The international community felt more pressure from the media to arrest the indicted war criminals. Pierre Hazan for example asked: “How are we to understand that the most powerful armies in the world are incapable of arresting Radovan Karadži ć in a territory the size of a pocket handkerchief?” 103 ICTY’s prosecutor Goldstone requested action from the international community:

“[…] imagine feelings of the victims, those who have suffered death in their immediate family, who have been raped themselves, or whose wives, or mothers, or children have been raped. They are told that the people responsible, who have been indicted as suspected war criminals, are going to be left alone, because the masters of the armed forces - 60,000 strong, with the most modern weaponry and the best intelligence in the world – consider it too dangerous to take action.” 104

Although the Tribunal had experienced many hardships, the ICTY nevertheless kept indicting suspected war criminals. During 1996, 10 public indictments had been confirmed against 33 individuals. By August 1996, six of the indicted persons were in custody of the UNDU while the Tribunal had confirmed in total eighteen indictments with a total of 75 indictees. But for the six detainees, the Tribunal could not confirm that, if convicted, their sentences would be enforced. The UNDU was not meant to house convicted war criminals for extended sentences; rather, it operates as a holding facility for accused during trial, and for the convicted pending transfer to a permanent facility. The ICTY called on UN Member States to enforce sentences within their respective prison systems. However, the majority of the UN Member States expressed indifference or unwillingness to assist. 105 When prosecutor Goldstone announced his departure from the ICTY in February 1996, 106 the detention unit of the Tribunal was nearly empty. A day before Richard Goldstone left The Netherlands in July 1996 he spoke of a “great frustration and disappointment to all of us working in The Hague” that only a small number of the indictees that had been arrested. 107 Although some of the key players had been indicted for the most serious crimes known to

103 Pierre Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the former Yugoslavia” (2004), 192 104 Goldstone, “Human Rights, Peace and Justice” 21. 105 See for example the second Annual Report of the ICTY: “the majority of [UN] Member States did not express an eagerness to assist: most states simply did not respond, many said they were unable to help, some indicated they were not yet in a position to respond and others indicated a willingness to assist only if their own nationals or residents were convicted.”, in S/1995/728, 33. 106 See SC Resolution 1047 (1996): “Appointment of the Prosecutor for the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for such Violations Committed in the Territory of Neighbouring States”. 107 At that moment one indictee was at the trial stage, one had pleaded guilty and five were awaiting trial.

27 human kind – genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 and the violations of the laws or customs of war – no arrest had been made by the international peacekeeping forces in the field, nor were the three states of the former Yugoslavia cooperative in facilitating such arrests. At this point, the war in the former Yugoslavia was over and an international peacekeeping force had been deployed, but international justice seemed to have failed. It appeared that the skeptics of international criminal law had gotten it right. A day before his departure, a frustrated Goldstone said:

“What is wanting is political will on the part of the international community. If the International Tribunal fails, as it could and probably will, if this continues for long enough – if we are not allowed to do the job we were created to do, what is the point of keeping the Tribunal going – it will be the end of any thought of enforcing International Humanitarian Law for the foreseeable future.” 108

"Our primary mission is not to chase war criminal[s]. We have said that on so many occasions [that] it's not worth repeating. We will of course cooperate with the Tribunal, as we have done. And in the course of our mission [if] we [encounter] a war criminal, you can be sure [that] they will be where they should be." NATO Secretary-General Solana in Sarajevo on 3 January 1997 109

“If the Tribunal is not allowed to function effectively, it will not have failed. It will have been failed. The international community […] will have forsaken its commitment to the rule of law.” ICTY President Gabrielle Kirk McDonald 110

The Louise Arbour Era (1996-1999) The judicial activity of the court had never been so intense when the Canadian Justice Louise Arbour started at the ICTY, but many people were still skeptical about the fulfilment of its mission. 111 When the Canadian prosecutor arrived at The Hague,112 the office of the prosecutor had 22 separate ongoing investigations and was prosecuting four cases before the trial chambers. 113 The Blaški ć trial was in pre-trial phase and Dražen Erdemovi ć was appealing the first sentence pronounced by the Tribunal. The Tribunal’s first trial, that of Dusco Tadi ć, was well underway and the first joint trial at the ICTY, the Čelebi ći trial, had a

108 Richard J. Goldstone, “Human Rights, Peace and Justice in Europe” (Europa lezing, Utrecht 1996), 21. 109 See the Annual ICTY Report of 1997, S/1997/729, 48. 110 See press release of the ICTY of 9 December 1997, “ICTY President Gabrielle Kirk McDonald addresses the "Dayton" Peace Implementation Council.”, at: http://www.icty.org/sid/7433 , viewed 7 May 2009, 14:00. 111 See press release of 30 September 1996, “Justice Louise Arbour takes up her office”, http://www.icty.org/sid/7315 , viewed 6 May 2009, at 17:00. 112 NB: exactly fifty years after the Nuremberg trials. 113 See the Annual ICTY Report of 1997, S/1997/729, 20.

28 procedural problem – none of the three presiding judges were re-elected by the General Assembly. 114 While the level of juridical activity was higher than ever before, the skepticism concerning the Tribunal lingered: partly because of the scope of IFOR's mission in the former Yugoslavia, partly because the sanction mechanism of the UN Security Council appeared not to work and partly because of the uncooperative three states of the region: Bosnia- Herzegovina, Croatia and Serbia. The fact that the Tribunal had only a few detainees in custody while it had issued more than seventy indictments, evoked the image of a “virtual tribunal”. 115 The Tribunal appeared to operate in an international vacuum, where ICTY prosecutors indicted persons accused of war crimes but the arrest warrants were ignored, and no authority – regional, national or international - proceeded with arrests. Prosecutor Arbour became convinced that arrests were vital for the very survival of the ICTY, as she later said:

“Arrest was the issue, and it was clear that if we got people arrested then everybody inside the Tribunal would be busy. We would be starting to do what we were set up to do, the United Nations would have to continue to support us financially and politically, and that’s when we arrived at the point of no return.” 116

To promote initiative within the international community, Louise Arbour formulated a new prosecutorial strategy. A crucial element of the new strategy was that the Tribunal would not publicise the indictment, as before, but it would make use of secret indictments. Because of the element of surprise, the secret indictments reduced the risks of injuries and deaths during arrests. Moreover, if the sealed indictments would be unsealed, the Tribunal could reveal that the peacekeepers of IFOR did not meet its responsibilities. Thus, by using the secret indictments the prosecutors of the ICTY had more influence and independence. The new strategy was applied for the first time when the former mayor of Vukovar, Slavko Dokmanovi ć, arrived for what he thought was an appointment with a representative of the UN. Dokmanovi ć was unaware of the indictment accusing him of involvement in the murder of 260 men taken from a hospital. 117 On 27 June 1997, the regional United Nations

114 See press release of 21 May 1997, "The eleven elected ICTY Judges will be sworn in on 17 November 1997.", at: http://www.icty.org/sid/7527 , viewed 4 May 2009, 18:00. 115 John Hagan, “Justice in the Balkans. Prosecuting War Crimes in The Hague Tribunal” (Chicago and London 2003) 97. 116 Hagan, “Justice in the Balkans”, 128. 117 See De Volkskrant of 28 October 1997, "Tribunaal wijst vrijlating van Dokmanovic af", at: http://www.volkskrant.nl/archief_gratis/article739048.ece/Tribunaal_wijst_vrijlating_van_Dokmanovic_af, viewed 13 March 9:30.

29 forces 118 arrested Dokmanovi ć and immediately brought him to The Hague. It was the first time that the peacekeepers worked so closely with the Tribunal. 119 Less than two weeks after the arrest of Dokmanovi ć, a British commando team under NATO command arrested the secretly indicted Milan Kovacevic. 120 That same day, the commando team shot the secretly indicted Simo Drlja ća dead after the accused fired at the commandos. The arrest of Kovacevic was the first arrest of an ICTY accused by NATO forces. 121 The secret indictments and the first arrest by the peacekeepers had a chilling effect on the other accused. They began to fear the 60,000 UN peacekeepers. In addition, a forged document was circulated in the region causing mistrust and suspicion of the UN peacekeepers – it allegedly indicated that 178 persons were the subject of secret indictments. 122 Ten Croats who had been indicted in public by the Tribunal suddenly turned themselves in. 123 From October 1997 until June 1998, almost every month one or two accused was arrested and transferred to The Hague. At that point, the Tribunal had succeeded beyond its physical capacity: in June 1998, there were more than 30 detainees in the 24 cells of the Tribunal’s detention unit. Since its existence, the ICTY had found itself constantly struggling for an appropriate budget, but when the detainees suddenly started to arrive in the UN detention unit, the financial situation of the ICTY became critical. The new president of the ICTY, the American judge Gabrielle McDonald (1997-1999), urgently asked the Security Council for more funds to establish additional courtrooms and to expand the prison cells, and proposed more judges

118 These were the forces of United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), see also http://www.un.org/Depts/dpko/dpko/co_mission/untaes_p.htm , viewed 13 march 2009, 9:45. It should be emphasized that these forces belonged to an United Nations administration and were therefore independent from the Dayton Agreement and independent from NATO. 119 As Slavko Dokmanovi ć was suffering from depression, he twice attempted to commit suicide. He succeeded on the eve of the completion of his trial: on the night of 28 to 29 June, Slavko Dokmanovi ć hang himself. See also ICTY press releases of 27 June 1997, "Apprehension and transfer to The Hague of an Accused under sealed indictment.", at: http://www.icty.org/sid/7497 , 29 June 1998, "Accused Slavko Dokmanovic found dead in his cell", at: http://www.icty.org/sid/7658 , 18 June 1998, "Dokmanovic case and Furundzija case: both Trials to be completed next week.", at: http://www.icty.org/sid/7660 and 23 July 1998, "Completion of the internal inquiry into the death of Slavko Dokmanovic.", at: http://www.icty.org/sid/7650 , all viewed 7 May 2009, 10:30. 120 See press release of 10 July 1997, “Accused Kovacevic transferred to The Hague.”, at: http://www.icty.org/sid/7493 , viewed 7 May 2009, 11:00. 121 See the Annual ICTY Report of 1997, S/1997/729, 34. Not long later he died of a heart attack, see also ICTY press release of 3 August 1998, "Milan Kovacevic passed away", at: http://www.icty.org/sid/7647 , viewed 24 June 2009, 16:15. 122 See press release of 15 August 1997, “Prosecutor Louise Arbour warns against forged document being circulated in Eastern Slavonia.”, at http://www.icty.org/sid/7476 , viewed 7 May 2009, 11:00. See also press release of , “Statement by the Deputy Prosecutor: "Mrs Plavsic has never been indicted".”, at http://www.icty.org/sid/7670 , viewed 7 May 13:30. 123 See press release of 6 October 1997, "Dario Kordic and nine other indictees who have surrended voluntarily will enter a plea on Wednesday 8 October 1997.", http://www.icty.org/sid/7464 , viewed 7 May 2009, 11:00.

30 to be selected. 124 Because of lacking resources, Prosecutor Arbour changed the prosecutorial policy to focus on only the most brutal and senior indictees and removed the charges against 14 lower ranking accused. 125 The ICTY lobby produced the desired results: by mid 1998, voluntary contributions from various states allowed two more courtrooms to be constructed. 126 During Arbour’s prosecuting term, 1996-1999, the annual UN budget for the ICTY had more than tripled from about thirty million to nearly one hundred million dollars. 127

The war in Kosovo The budget of the ICTY did not increase only because of the lobby of the ICTY representatives. Increasingly the Serbian president, Slobodan Miloševi ć, was held responsible for causing so much suffering, and the ICTY appeared as a solution to quell the war crimes being committed in Kosovo. As the situation in Kosovo escalated, the support for the ICTY by the international community increased. 128 The support for the ICTY accelerated when Human Rights Watch reported a massacre of approximately forty male Albanians in the town of Ra čak, and Louise Arbour went to the region to investigate. On 17 January 1999, amidst a crowd of journalists and television crews, Arbour and her investigative team gave a Serbian custom officer her ICTY papers and

124 See press release of 16 February 1998, "President McDonald asks the Security Council to establish an additional Trial Chamber " where it is stated: “The recent surrender of two accused confirms the ICTY's need for additional support".", at: http://www.icty.org/sid/7695 , viewed 7 May 2009, 11:00. 125 All accused withdrawn were of the Omarska and Keraterm indictments, which were confirmed in February 1995 and July 1995 respectively. See also press releases of 19 December 1997, "Prosecutor has filed motions to withdraw four indictments.", at: http://www.icty.org/sid/7426 , 27 February 1998, "Prosecutor's comments on purported statements by Ambassador Robert Gelbard.", at: http://www.icty.org/sid/7689 , 8 May 1998, "Statement by the Prosecutor following the withdrawal of the charges against 14 accused.", at: http://www.icty.org/sid/7671 and 13 May 1998, "Statement by the Deputy Prosecutor: "Mrs Plavsic has never been indicted".", at: http://www.icty.org/sid/7670 , all viewed 7 May 2009, 13:00. 126 See press release of 1 May 1998, "Inauguration of Courtroom II will take place on 5 May 1998.", at: http://www.icty.org/sid/7673 , 8 June 1998, "Minister Van Mierlo and Ambassador Scheffer to inaugurate Courtroom III on Friday 12 June.", at: http://www.icty.org/sid/7663 , viewed 7 May 2009, 11:00. 127 See ICTY budget and staff table at Annex 1: Tables. 128 At the end of the 1990’s, the situation in Kosovo started to escalate. The Serbian authorities had directed the Serbian refugees from Croatia and Bosnia-Herzegovina to the southern Serbian province of Kosovo. The Serbian province of Kosovo, however, was populated by more than ninety percent Albanians who had, for many years, aspired to independence from Belgrade. When it became clear that the Dayton Accords did not provide a solution for the nearly two million Albanians, approximately two thousand Albanians formed the Kosovo Liberation Army (English abbreviation: ‘KLA’, in Albanian: Ushtria Çlirimtare e Kosovës or UÇK ) to seek independence through guerrilla tactics. In the summer of 1998, the war between the KLA and the Serbian army escalated after various provocations by the Serb authorities. The Serbian offensive pushed the KLA soldiers and 100,000 civilian Albanians out of their homes and into the mountains, without shelter, as winter approached. It was a humanitarian crisis waiting to happen. See the articles in Vanity Fair of October 1999 by Sebastian Junger "Letter from Kosovo. The Forensics of War", at: http://www.vanityfair.com/magazine/archive/1999/10/kosovo199910 and December 2008 by William Langewiesche, "House of War", at: http://www.vanityfair.com/politics/features/2008/12/kosovo200812 , viewed 8 July 2009, 22:00.

31 requested entry to Kosovo. When the Serbian guard refused her entry to Kosovo, the image of the helpless prosecutor went around the world. 129 After she was refused admission to Kosovo, Arbour was ready to resign:

“I was completely discouraged and started drafting my letter of resignation […] I had taken it physically to the end of the road and in a real sense: when I turned around, there was nobody behind me. NATO wasn’t there, the Security Council wasn’t there […]” 130

But although Arbour had lost the “border battle”, the prosecutor later realised that she had won the “media war”: the Ra čak massacre brought renewed international attention to the conflict in Kosovo. 131 Within weeks of the Ra čak massacre, an international conference was arranged at the French castle Rambouillet. The Serbian delegation refused to sign the ‘Rambouillet Accords’. As a result, NATO started to bomb the Federal Republic of Yugoslavia (FRY). 132 In January 1999 – the same month as the massacre in Ra čak – the prosecutors of the ICTY started drafting an indictment against Miloševi ć.133 ICTY investigators were on the border of Kosovo building up their case by taking testimonies of Albanian refugees. It was clear that Miloševi ć was not only the instigator of the war against the Albanian rebels, the Serbian president was also in the line of command judicially. Because of the Tribunal’s increased international support, the prosecutors of the ICTY received information from several secret service agencies from western states as well as institutions such as NATO. 134

129 See press releases of 16 January 1999, "Kosovo: Statement by Justice Louise Arbour, Prosecutor of the ICTY.", at: http://www.icty.org/sid/7792 , 7 July 1998, "Communication from the Prosecutor to the Contact Group Members.", at: http://www.icty.org/sid/7656 , 4 November 1998, "Statement by Justice Louise Arbour, Prosecutor of the ICTY.", at: http://www.icty.org/sid/7623 , 5 November 1998, "Statement by Justice Louise Arbour, Prosecutor of The ICTY.", at: http://www.icty.org/sid/7621 , 26 March 1999, "Justice Louise Arbour, the Prosecutor of the International Tribunal, writes to President Milosevic and other senior officials in Belgrade and Kosovo to remind them of their responsibilities under international law.", at: http://www.icty.org/sid/7780 , 31 March 1999, "Kosovo: Statement by the President of the ICTY, Gabrielle Kirk McDonald", at: http://www.icty.org/sid/7777 , and 20 January 1999, "Press Statement from the Prosecutor regarding Kosovo Investigation.", at: http://www.icty.org/sid/7791 , viewed 7 May 2009, 14:30. 130 Hagan, “Justice in the Balkans”, 117. 131 Hagan, “Justice in the Balkans”, 117. 132 By June 1999, the NATO bombing produced a withdrawal of the Serbian troops and the subsequent foreign military presence in Kosovo. By then, roughly a million Albanians had fled or were forcefully driven from Kosovo while thousands had died, thousands of others were wounded and 68,000 houses in Kosovo had been destroyed. See Ton Zwaan and Bob De Graaff, “Genocide en de crisis van Joegoslavië”, 212. For the name and territory of the FRY see supra 209. 133 Hagan, “Justice in the Balkans”, 120. 134 Hagan, “Justice in the Balkans”, 121. See also press release of 31 March 1999, "Press Briefing - 31 March 1999 / Statement by the Prosecutor.", at: http://www.icty.org/sid/7778 , viewed 12 May 2009, 11:00 where prosecutor Arbour states: “In recent days, the US, the UK and NATO have indicated publicly that they have evidence of the commission of crimes within our jurisdiction, including information about the perpetrators, and that they will share this information with my Office. I welcome these statements and I take these assurances

32 After fifty-two days, the ICTY confirmed the indictment against the Serbian president, Slobodan Miloševi ć.135 The first time that a sitting president was indicted by a UN tribunal was reported by the press all over the world. Because of the war in Kosovo and the issuance of the indictment against Slobedan Miloševi ć, the ICTY gained momentum: never before in its history did the ICTY receive so much attention.

seriously. I expect to be provided with this information on a continuous basis, not only from these sources but from all governments, international organisations, NGOs and private individuals who are committed to peace and justice, and the dispassionate pursuit of truth.”. 135 Hagan, “Justice in the Balkans”, 121.

33 Chapter 2 Criticism from the Balkans, 1993-1999 By 1999 the ICTY had become a fully functioning international criminal court. 136 However, within the UN the ICTY was criticised for its lack of outreach. In a review of the effectiveness of the ICTY, the UN Advisory Committee on Administrative and Budgetary Questions (‘ACABQ’) concluded that:

“it is likely that, except for a very small proportion of the population of the former Yugoslavia and elsewhere, there is large-scale, if not total, lack of knowledge regarding the international humanitarian laws enforced by the ICTY”. 137 (emphasis added).

The rules and procedures of the ICTY were not known by the peoples that the Tribunal was established to serve. The Tribunal was remote from the affected communities, and entirely foreign to local notions of justice . Studies about the effectiveness of the ICTY were critical. In 1999, a survey conducted among Bosnian non-governmental organizations (“NGOs”) showed that NGOs had received little information on the Tribunal and that they felt remote from it. 138 Over 60 percent of the interviewed NGOs did not know what laws govern war crimes and 66 percent had not received any information about the kind of war crimes for which one can be indicted. 139 In the same year an interview study had been conducted among Bosnian judges and prosecutors which revealed negative local perceptions of the Tribunal. 140 Just as with the local NGO’s, the Bosnian legal professionals felt marginalized by a procedure of which they lacked any clear understanding. Another survey conducted at the same time highlighted the “striking lack of understanding by most of the participants of the procedures and work of the Tribunal.” 141 The general perception of the Tribunal, especially among Bosnian-Serb and Bosnian-Croat judges and prosecutors, was that the ICTY was a biased, political organization incapable of providing fair trials. The majority of Bosnian legal

136 See the 1999 Annual Report of the ICTY, S/1999/846, 3. 137 The Expert Group mandated by the Secretary-General to evaluate the effectiveness of the Tribunal’s activities further to the Resolution of 18 December 1998 gave rise to 46 recommendation, see A/54/634, “Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda”, (“ACABQ Report”) , 11 November 1999, 37, paragraph 97-98. 138 In 1999, a survey conducted among Bosnian non governmental organizations (“NGOs”) showed that NGOs had received little information on the tribunal and that they felt remote from it: “The Hague is some distant thing that is not understood at all.” See Victoria Enaut, "The ICTY’s Outreach Programme and the Challenges to its Success at Shaping Local Popular Perceptions of the Tribunal. (September 2006) 11. 139 Over sixty percent of the interviewed NGOs did not know what laws govern war crimes and 66 percent had not received any information about the kind of war crimes for which one can be indicted. See Victoria Enaut, "The ICTY’s Outreach Programme”, 11. 140 See Enaut, "The ICTY’s Outreach Programme”, 11. 141 Ibidem.

34 professionals perceived the ICTY as a contemporary form of “victor’s justice” and an “illegitimate instrument of the great powers.” An ACABQ report commissioned by the UN General Assembly advised for more transparency and accessibility of the ICTY. 142 Even within the Tribunal, staff members started to criticize the course of action of the Tribunal. For example, Paul Stuebner, staff member of the OTP, stated:

“In 1995, we received some requests from Sarajevo, from Banja Luka, from Belgrade, from the different faculties of law in the former Yugoslavia. They asked us to give them courses on the tribunal, to explain its statutes and functioning, but the prosecutor was never interested. A lot of material was never even translated into the local languages. When the Tadi ć judgment was finally translated [into the regional language(s)] two and a half years later after the verdict, it was already on the point of being obsolete, since the Chamber of Appeal was also in the process of making its ruling. There was an inexplicable lack of interest in getting our message across.” 143

The Tribunal watcher Hazan noted that:

“this absence of will to explain the ICTY’s work to the people most concerned by it is one of the most important failures of the Tribunal at The Hague”. 144

The clearest example of neglect of the population of the former Yugoslavia was that up to 1999, the ICTY had produced its documents only into the two working languages of the Tribunal: English and French. Only in 1999 did the ICTY announce that documents would be translated into Bosnian, Croatian and Serbian. 145 Years later, the ICTY announced that it would translate all of its documents also into Albanian. The fact that it was not until six years after its establishment that ICTY undertook to translate its publications, documents, press releases and judgements into Bosnian, Croatian or Serbian (‘BCS’) indicates clearly that the Tribunal had overlooked the population of the region. It can be assumed that the reason the ICTY had overlooked the peoples of the region was because its essential audience was in the West rather than in the Balkans. As a UN institution, the ICTY mainly looked to its UN headquarters in New York, for guidance, administrative authority, support and in the constant struggle for an adequate budget. 146

142 The ACABQ report recommended the ICTY (and the ICTR) an Outreach programme to increase awareness of the role of the Tribunal in protecting and enhancing humanitarian values, see Experts Group Report, UN Doc. A/54/634, S/2000/597, 11 November 1999, page 37, paragraph 97-98 and page 90, recommendation 15. 143 Hazan, “Justice in a Time of War”, 186. 144 Ibidem. 145 Annual ICTY Report 1999, S/1999/846, 37-39. 146 In particular, its constant fight over an appropriate budget caused the tribunal to focus on UN Headquarters in New York.

35

Many ICTY employees were unacquainted with the conflict of the former Yugoslavia. ICTY employees were recruited from countries over the world, as is the case with all United Nations staff, with a certain concentration of Dutch nationals resulting from its location in The Hague. 147 Only a small number of employees understood the very complex war in the former Yugoslavia. Most employees perceived the fast developments in the conflict of the Balkans as complicated and confusing. Even high representatives of the Tribunal, such as judges, were sometimes poorly informed concerning the conflict in the former Yugoslavia. 148 When the ICTY issued reports, they were directed mostly towards its Western audience - which was also its principal funding source, its political support and its cultural origin. Prosecutor Louise Arbour recognized this when she said:

“if there was one thing to redo, and if we were sure of the Tribunal’s growth, I would have my staff learn Serbo-Croatian, so that they could better understand the documents, so that the people would no longer be such strangers. It is very frustrating to work in a language that you do not master. There is something of the culture, of the history, of the emotion that is necessary to us”. 149

Adding to the difficulty was the fact that many ICTY judges, prosecutors, investigators and the numerous legal officers supporting all sections came from national courts where they did not have to explain their work to the public. The Tribunal was a unique international tribunal but the employees who were recruited often continued in their familiar national manner. The unique ICTY required unique communicative court methods, such as a public relation office for the region. 150 Consequently, the rules and procedures of the ICTY became a legal specialty – international war crimes – withdrawn into itself. The ACABQ report recommended the ICTY to be more accessible and more transparent to the affected communities. 151 The judge elected President of the Tribunal, Gabrielle McDonald, decided to create a special section within the Tribunal that would inform and engage with the people in the former Yugoslavia. As such, it was in 1999, six years after

147 See the Charter of the United Nations, at: www.un.org , Article 101, point three, where it is stated: “Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible”. See "The Cost of Justice", at: http://www.icty.org/sid/325 , viewed 24 June 2009, 17:30 where it is stated that the ICTY had as of 23 March 2009: 1118 staff members which represented 82 nationalities. 148 For example, the Chinese judge Haopei Li upon his arrival in The Hague had never even heard of the country of Yugoslavia. See Banning and De Koning, “Balkan aan de Noordzee”, 28. 149 Hazan, “Justice in a Time of War”, 189. 150 Meanwhile, most of the publications by ICTY employees were generally inside their own legal specialized discipline. 151 See the Experts Group Report, UN Doc. A/54/634, S/2000/597, 11 November 1999, 37, 90.

36 its establishment, that the Tribunal decided to establish an “Outreach” program to “reach out” to the population of the region. It had taken six years before the ICTY became aware that what it was doing had very little resonance within the affected communities of the former Yugoslavia. Only the work of the prosecutor required direct contact with the local communities. OTP employees had a daily contact with victims, witnesses, local governments and NGO’s. But the office of the prosecutor was too understaffed to explain its work and the confidentiality of the investigation process excluded public openness. By 1999, most peoples of the former Yugoslavia felt disconnected from the ICTY. The isolation of the court from the people of the former Yugoslavia was partly due to the location of the international court. When the ICTY was established, it was uncertain where the court would be established but by May 1993 one thing was clear: the ICTY could not be set up in the territory of the former Yugoslavia. In 1993 with the war still raging, the country was torn between ethnic rivalries and no regional authority could confirm safety nor security. But one of the obvious disadvantages of the location in The Hague was the distance of the court to its region of jurisdiction: more than 1,500 km. The Tribunal’s results were experienced far from the former Yugoslavia. The people of the region had many misconceptions and misunderstandings of the work and procedures of the ICTY. 152 As the ICTY was never explained to the peoples of the former Yugoslavia, the media in the Balkan had to explain the workings of the Tribunal for them, largely to the disadvantage of the ICTY.

The role of the media

Since its inception, the ICTY offered courtroom recordings to press and media. The media of the Balkans, however, interpreted the existence, procedures and proceedings of the international Tribunal differently than it intended. Each of the three states had a different agenda and explained the war in the former Yugoslavia differently. Consequently, Croatian media, Bosnian media and Serbian media all had a different interpretation of the ICTY and international justice. When the media in the Balkans broadcast ICTY’s court TV, they often did so selectively. The ICTY offered complete trials to the media, but the media in the Balkans used only small selections or quotations within often critical news segments. The coverage of ICTY trials was complicated because the procedures and proceedings of the ICTY were complicated. The ICTY used an unfamiliar mix of common law as used in

152 Annual ICTY Report 1999, S/1999/846, 37-39.

37 Anglo-Saxon countries and civil law as used in many European countries (including the countries that formely made up Yugoslavia). Moreover, the ICTY commenced in 26 April 1995 (with the initial appearance of Dusko Tadi ć) with a compelling start (the guilty plea of the defendant) but after only a few days of coverage, boredom triumphed. The ICTY used more than a year to prepare the pre-trial phase and clarify the law and facts of the case, but it was not until 7 May 1996 that the case, (the Tribunal’s first) commenced. Other ICTY cases were often also unexciting for the majority of the peoples of the former Yugoslavia. The seniority level of the defendants was low and the proceedings were complex and slow. So, the cases of the international Tribunal did not receive much attention from the local media. 153 Each media outlet in the Balkan countries often had an agenda of its own. In the years preceding the outbreak of war in 1991, during the years of fighting and in the first two years of peace (1995-1997), the media in the Balkans were able to behave with impunity. Because of political support and financial assistance from the leaders in the Balkan countries, the media became one of the crucial weapons in the conflict. Even when the war had ended, the media did not stop supporting the extreme nationalistic views. Even in the communistic Yugoslavia, media had been an instrument of the ruling elite to explain their views to the oppressed population. 154 As the conflict escalated and as Yugoslavia disintegrated in the beginning of the nineties, the media of the various republics served increasingly less to inform the population and increasingly more to encourage and strengthen the support for the opinion of their political leaders. Since there were few alternative sources of information, the media that was backed by the political leaders became the prime supplier of information and the prime supplier of interpretation. While the media supported their political leaders, the common man became increasingly indoctrinated with the extreme nationalistic propaganda views offered by the local media. When the ICTY was established on 25 May 1993, the war in the former Yugoslavia - and the media war - was still raging. By then, all different ethnic communities had used media propaganda for years to brainwash their citizens of the nationalistic party line. Within each ethnic community, nationalistic extremist reasoned that the “other” ethnic community was the perpetrator of old (sometimes ancient) crimes. Nationalistic propaganda often asserted that each member of a community carried the collective guilt of its ethnic group. As a result, the

153 The Balkan journalist Mirko Klarin was the only exception that offered for various media in Yugoslavia a twenty minute weekly program concerning the work of the international tribunal. See also Hazan, “Justice in a Time of War”, 187, and Mirko Klarin in the Journal of International Criminal Justice, “The Impact of the ICTY Trials on Public Opinion in the former Yugoslavia”, 4-5 and Klarin, “The Tribunal’s Four Battles”, 546-557. 154 Klarin, “The Impact of the ICTY Trials on Public Opinion in the former Yugoslavia”, 5-6.

38 nationalistic propaganda asserted that the people in the former Yugoslavia had to take vengeance on the “Turks” (Muslim), the Ustašes (Croats) or the Chetniks (Serbs). In this way, aggressors often saw themselves either as victims or as “correctors” of ancient crimes left unpunished. 155 As all three sides considered their own community to be the victim of the war, and all three sides believed that justice could only occur if members of the other ethnic community would be prosecuted. But during the crucial period when the ICTY should have explained its mandate and its functioning to the peoples of the former Yugoslavia, the Tribunal was completely preoccupied with internal UN difficulties, such as recruitment issues, funding and the selection of a prosecutor. When the first indictment of the ICTY was issued at the end of 1994, the people of the former Yugoslavia were either ignorant or largely skeptical toward the Tribunal. But because the first indictment was against an ethnic Serb, the media in Croatia and Bosnia were interested. 156 The accusation by the ICTY prosecutors supported their interpretation of the war. The attitude of the media towards the ICTY changed on 14 December 1995, when the Dayton peace agreement was signed. 157 With this historic peace agreement, Bosnia- Herzegovina, Croatia and Serbia were obligated by law to cooperate with the ICTY. Because the ICTY was imposed by the UN Security Council on the region, the court in The Hague was often portrayed by the media of the region as an external imposition. But although the three Balkan states had signed the Dayton agreement - and agreed to cooperate with the Tribunal –

155 Hazan, “Justice in a Time of War”, 176-197. 156 The annual report of the ICTY reported “regular contact” with RTV Bosnia, the official news service Tanjug and private radio stations from Croatia but no contacts with any media from Serbia, see S/1995/728, 40. 157 In November 1995, at the Wright-Patterson Air Force Base near Dayton, Ohio, a peace agreement was reached between the Serbian president Slobedan Miloševi ć, the Croatian president Franjo Tu ñman and the Bosnian President Alija Izetbegovi ć. The Bosnian Serbs received 49 percent of the territory of Bosnia- Herzegovina, while the Federation of the Bosnian-Muslims and Bosnian-Croats received 51 percent. It was agreed that a NATO Implementation Force (‘IFOR’) would be responsible for implementing military aspects of the agreement and the Organization for Security and Cooperation in Europe (OSCE) would organize fair elections. By signing the agreement in Paris on 14 December 1995, the three and a half years long war in Bosnia-Herzegovina was formally put to an end. ICTY representatives had not been invited to participate in the Dayton peace negotiations, and the indictments were not used as bargaining chips during the negotiations, though rumours assumed the opposite. At Dayton it was decided that the implementation of the Dayton peace agreement would be the primary objective of IFOR and the hunt for indicted war criminals would be its secondary objective. It was decided that IFOR would have the authority, but not the obligation, to arrest war criminals. The three different governments in Bosnia pledged to cooperate with the tribunal and agreed that accused wouldn’t be permitted to run in local elections. As the international force of 60.000 peacekeepers could support the ICTY, the Dayton peace agreement appeared as a turning point for the international tribunal. See the General Framework Agreement for Peace in at http://www.ohr.int/dpa/default.asp?content_id=380 , viewed 9 March 2009, 12:30. and http://www.nytimes.com/specials/bosnia/context/dayton.html viewed 10 March 2009 11:15. The Dayton Accords would mean momentum for the ICTY: finally its staff members would have freedom of movement in the region and unrestricted access would be provided to crime sites and relevant persons.

39 the local media still portrayed the ICTY as an institution that was established as part of an international conspiracy against their sovereignty. Conspiracy theories have always been common in the region, particularly in Serbia, so when the media reported ICTY as part of an international scheme against Serbs these views were quickly accepted by many Serbs. 158 Not only the Serbian people were receptive to conspiracies: Croats and Bosniaks also often believed in conspiracies. After the rise of the Serbian president Milošević through the populistic and nationalistic anti-bureaucratic revolution, the Serbian president gained control and influence effectively in four out of the eight republics and autonomous provinces of the Yugoslav federation. 159 The overturned balance of power in the Yugoslavian federation provoked separatism and extremism within all republics of the federation. The elections of 1990 were in all republics won by nationalistic, often xenophobic, parties that desired separation from the Yugoslavian federation. These xenophobic separatists interpreted the ICTY as an instrument of an international conspiracy. 160 The voluntary contributions and donations of the US, and the fact that the US had sent dozens of prosecutors on loan to the Tribunal were often depicted by the Balkan media as making the court dependent on US politics. The secondments of national personnel, while giving credibility to the OTP, fuelled these theories even further, as the US (along with the United Kingdom, The Netherlands, Denmark, Norway and Sweden) was one of the largest contributor of staff. Moreover, the US was the fourth largest contributor to the ICTY, with only Malaysia, Italy, and Pakistan above. By the time that the states of the former Yugoslavia signed on to cooperate with the ICTY under the Dayton Accords, many people of the region were already convinced that the Tribunal was an instrument of an international conspiracy. While the ICTY began to request assistance of the states of the region, it never explained its mandate nor the workings nor the reasons for the existence of the court to the people of the region.

158 For example, many Serbs believed that Tito’s Yugoslavia were part of a conspiracy against the Serbs. Many Serbs also believed that the Ottoman predecessor had been part of a conspiracy against the Serbs. These views were widely believed because of all Yugoslavian communities, the Serbs were the biggest and most dominant, but this did not appear in the power structure of the state. According to Kaplan’s account, many Serbs believed that especially the Albanians and the Croats profited from this anti-Serbian conspiracy. See Robert D. Kaplan, “Balkanschimmen. Een reis door de geschiedenis.” (Nieuwegein 1999) 66. 159 The Serbian president had gained control over Serbia, Montenegro, Vojvodina and Kosovo 160 While the war continued, the beliefs in conspiracies theories continued because the local media supported and sustained them. In Yugoslavia there therefore was a certain schizophrenia concerning the facts and the reality of the war. The Markale massacre in Sarajevo for example was widely reported in the international media, but ignored in Serbia See The Helsinki Committee for at http://www.helsinki.org.yu/ , viewed 18 May 2009, 18:00. For more on media see Thompson, “Forging War”, and among others http://www.pbs.org/wgbh/pages/frontline/shows/karadzic/bosnia/media.html , and see “Role of Serbian media in the ” at Wikipedia site: http://en.wikipedia.org/wiki/Serb_propaganda , viewed 18 May 2009, 17:30.

40

Cooperation of the region with ICTY

Bosnia-Herzegovina The Federation of Bosnia-Herzegovina was optimistic about an international tribunal even before the Tribunal was established. By then, the military situation in Bosnia- Herzegovina was desperate. 161 When the ICTY was established, the Federation of Bosnia- Herzegovina had lost 70 per cent of its territory to the Bosnian-Serbs. Moreover, the alliance with the Bosnian-Croats deteriorated quickly, escalating in 1994 in a full-scale war between the Bosniaks and the Bosnian-Croats. As the Federation Bosnia-Herzegovina became increasingly isolated by the Bosnian-Serbs and the Bosnian-Croats, international support could significantly change the war. By cooperating with the ICTY, the Federation of Bosnia- Herzegovina hoped to gain more international support for its cause. Moreover, as most of the victims of war crimes were Muslims the Federation of Bosnia-Herzegovina had much to gain and little to fear from an international tribunal. Internationally, the ICTY was also perceived as a defender of the Muslims of Bosnia- Herzegovina. In its first years, the largest part of the voluntary contributions to the ICTY were from Islamic countries such as Malaysia, which in 1995 gave 2 million dollars, and Pakistan which gave 1 million dollars. 162 The initial indictments appeared to support the idea of partiality of the Tribunal as all the accused had either Serb or Croat ethnicity. When the OTP first commenced their work at the end of 1994, the Federation of Bosnia-Herzegovina immediately responded favourably to requests by the Tribunal. 163

161 When Yugoslavia started to disintegrate, nationalistic ideals in all republics became more attractive for more people. In the republic Bosnia-Herzegovina the parliamentary elections of 1990 led to three anti-communistic ethnic based parties. After the declaration of independence of the republics Croatia and Slovenia, the republic Bosnia-Herzegovina found itself marginalized at federal level. Only the Bosnian-Serbs desired to stay within the Yugoslav federation while the Bosniaks and Bosnian-Croats overwhelmingly favoured independence. When the republic Bosnia-Herzegovina decided upon a referendum concerning independence, it was boycotted by the Bosnian-Serb party as they considered the referendum unconstitutional. The independence referendum consequently was attended by only 63.7 percent of the Bosnian population whereof 99.4 percent voted for independence. Shortly after the referendum, on 5 April 1992, the republic Bosnia-Herzegovina declared independence. Two days later, the Bosnian-Serbs declared their own Serb republic within Bosnia-Herzegovina, “Republika Srpska”, claiming huge territories elsewhere in the country where minorities of Bosnian-Serbs lived. Before April 1992, war between Bosnian-Serbs and Bosnian-Croats and Bosnian-Muslims had started but because of the referendum the war quickly escalated. Assisted by the Yugoslav People's Army that consisted primarily out of Serbs from Belgrade, the Bosnian-Serbs started to ethically cleanse whole areas in Bosnia- Herzegovina and kill civilian Bosniaks in the cities Bijeljina, Visegrád, Fo ča, Bratunac, Sanski Most, Prijedor, Kozarac. By 1993, the situation of the Bosnian government appeared hopeless as about 70% of Bosnia- Herzegovina was controlled by the Bosnian-Serbs from Republika Srpska while war broke out between the Bosnian-Croats (supported by Croatians from Zagreb) and the Bosniaks. 162 In contrast, the United States provided merely 700.000 dollars 163 On 3 December 1994, a memorandum of understanding (MOU) regarding cooperation with the ICTY was signed. Under the MOU, the Federation of Bosnia-Herzegovina agreed to cooperate fully and unconditionally

41 The Federation of Bosnia-Herzegovina complied with the Tribunals request to defer local investigations and prosecution of a group of Bosnian-Croats who were suspected of having murdered over 100 Bosniaks in the Lasva Valley. By acting accordingly, the Federation of Bosnia-Herzegovina became the first state that recognised the primacy of the Tribunal in theory and in practise. 164 In early 1995, the Federation of Bosnia-Herzegovina agreed to defer the national cases against three ethnic Bosnian-Serbs: president Karadžic, general Mladi ć and the Chief of the State Security Services Stanišic. In the spring of 1996, the Federation of Bosnia-Herzegovina informed prosecutor Goldstone that they would provide approximately 1,500 local cases for review by the Tribunal. The Federation of Bosnia-Herzegovina was the most cooperative party of the various states (and various entities) of the former Yugoslavia, responding to nearly every arrest warrant addressed to it or explaining its inability to do so in territories outside its control. In May 1996, this cooperation resulted in the arrest of Hazim Deli ć and Esad Landžo, which led to the first ICTY indictment dealing with Bosnian-Serbian victims. 165 The Federation of Bosnia-Herzegovina allowed an office to be established in Sarajevo and it provided investigators of the Tribunal access to crime sites and relevant persons. 166 Later in the nineties, the Federation of Bosnia-Herzegovina executed search warrants of the ICTY. 167 Unfortunately, when the Tadi ć trial was well underway it appeared that the Federation of Bosnia-Herzegovina did more than what was legally permissible. The defence proved that Dragan Opa čić, a witness of the prosecution had lied about his testimony in court. Later Opacic asserted that his evidence had been fabricated at the instigation of the authorities of Bosnia-Herzegovina. 168 The false testimony during the first trial of the ICTY not only with the ICTY. The Bosnian Federation also accepted the rights, duties and obligations it had under the statute and the rules of the tribunal. See S/1995/728, 17 164 Because the accused that were tried by the ICTY couldn’t be tried again for the same crimes by a national court. 165 See press release of 22 March 1996, “International Tribunal issues first indictment dealing with Bosnian-Serb victims.”, at http://www.icty.org/sid/7392 , viewed 19 May 2009, 11:30. 166 See the 1996 Annual Report of the ICTY, S/1996/665,41. 167 See press release of 23 September 1998, “Search warrants being executed in Bosnia Herzegovina”, at: http://www.icty.org/sid/7639 , viewed 18 may 2009, 12:00. 168 See ICTY press release of 25 October 1996, "Tadic case: press statement by the Prosecutor.", at: http://www.icty.org/sid/7289 , 13 December 1996, "Tadic case: update on Witness L (Dragan Opacic).", at: http://www.icty.org/sid/7257 , viewed 27 April 2009, 16:15. See also the 1997 Annual Report, S/1997/729, 13, where it is noted: “On 8 May 1997, the Prosecutor informed the Judges that it did not consider the case of witness L - whose name was now disclosed as Dragan Opacic´ - to be an appropriate one for prosecution for false testimony under rule 91. Accordingly, in an order of 27 May 1997, the Trial Chamber ordered that the witness be returned to the custody of the authorities of Bosnia and Herzegovina, whence he came and where he was serving a prison sentence of 10 years.” Se also De Volkskrant of 26 oktober 1996, "Opacic leerde verzonnen verhaal uit zijn hoofd", at: http://www.volkskrant.nl/archief_gratis/article697962.ece/Opacic_leerde_verzonnen_verhaal_uit_zijn_hoofd , viewed 9 July 2009, 12:30.

42 embarrassed the Tribunal but it stressed the relationship with the Federation of Bosnia- Herzegovina. (Predominantly Serbian) claims that the ICTY was a “show-court” suddenly appeared correct. Although the Federation of Bosnia-Herzegovina cooperated with the Tribunal, the Federation did not control all the territory of the state Bosnia-Herzegovina. At Dayton it was decided that the Bosnian-Serbs would control 49 percent of the territory of Bosnia- Herzegovina which was named ‘Republika Srpska’. 169 When the Dayton agreement was implemented, at the end of 1995, the Federation of Bosnia-Herzegovina had no influence in this Bosnian-Serb controlled part of the country.

Republika Srpska The Bosnian-Serbs of Bosnia-Herzegovina had been responsible for most crimes against international humanitarian law during the war, and had been responsible for the most brutal crimes. It is not surprising then that the authorities of Republika Srpska were against an international war crimes court. With help of the local politicians, the local media initiated a campaign against the ICTY. The authorities of Republika Srpska did not recognise the primacy of the ICTY and consequently did not arrest any ICTY indictee. 170 Representatives of Republika Srpska refused to meet ICTY representatives because they considered the court in The Hague as an illegal court and contested its primacy over courts in Republika Srpska. 171 OTP investigators were unable to interview witnesses and victims in Republika Srpska. 172 The only cooperation of Republika Srpska with the ICTY was the acceptance of ICTY investigators’ access to crimes sites and more importantly, mass grave sites. 173 At the same time there were numerous media reports that these mass grave sites had been emptied of corpses or otherwise had been tampered with. 174 After the realization that

169 See note 157, supra . 170 After Dayton, the Tribunal reported that: “some of these States or Entities still fail [to cooperate with the Tribunal]. This applies in particular to the Federal Republic of Yugoslavia () and Republika Srpska, which so far have failed fully to cooperate by arresting and surrendering to the Tribunal persons indicted of war crimes, crimes against humanity and genocide.” See the 1996 Annual Report, S/1996/665, 9. 171 It should be noted that ICTY did not want to meet representatives of Republika Srpska too: The persistent refusal of Republika Srpska to even recognize the Tribunal, made ICTY representatives believe it would be inappropriate to meet representatives of Republika Srpska, see the 1996 Annual Report of the ICTY, S/1996/665, 42. 172 See the 1996 Annual Report of the ICTY, S/1996/665, 14. Ultimately, arrangements were made for witnesses to travel to other countries to be interviewed. 173 See the 1996 Annual Report of the ICTY, S/1996/665, 41. 174 Which constituted destruction of evidence, see also the 1996 Annual Report of the ICTY, S/1996/665, 41 and page 24, where it is stated: “[…] the first exhumations of mass graves began on 7 July 1996. The most difficult aspect to date in the exhumations projects has been to clear mines and "booby-traps" from sites and to prevent their redeployment when the areas are not being excavated.”.

43 Republika Srpska was failing to cooperate even minimally, the ICTY noted in its annual report to the General Assembly that arrest and transfer of major indictees would be “a forlorn hope”. 175 After the success of the radical nationalistic party at the 1996 elections, cooperation of Republika Srpska with the ICTY became even more uncertain. Together with the Federal Republic of Yugoslavia (“FRY”, later Serbia and Montenegro) the authorities of Republika Srpska attempted to trump the jurisdiction of the ICTY by proposing to try the ICTY indictees in their own territory. 176 Almost two years after the issuance of their indictment, three former commanders of the were easily located by the media because they were still holding public law enforcement positions. 177 The two highest-level ICTY indictees, Radovan Karadžic´ and Ratko Mladi ć´, were not arrested by the authorities of Republika Srspka and remained in official positions. 178 Republika Srpska became a safe haven for ICTY indictees. By mid-1997, Republika Srpska had more than 40 indictees in its territory but it had “consistently refused to arrest a single one”. 179 Many of the ICTY indicted war criminals, such as Mladi ć and Karadžic, were extremely popular in the region. While the authorities of Republika Srpska maintained that they could not find any of the ICTY accused, the Bosnian-Serb leader Radovan Karadži ć was relentlessly broadcasted on local television. 180 Only in late 1997 did the international peacekeepers deployed in Republika Srpska start to assist the Tribunal. When the NATO-led peacekeepers in October 1997 seized the

175 See the 1996 Annual Report of the ICTY, S/1996/665, 47. 176 The judgements of the local courts in Bosnia-Herzegovina simply dealt along ethnic lines, whereby the courts of one ethnic zone indicted other ethnics for alleged war crimes. Even the Serbian administration in Pale had been adjudicating accused war criminals. In July 1995, a Bosnian Serb district court in Br čko tried in absentia and convicted 37 Croats of grave crimes against POWs. It sentenced 25 members of the Croat Defense Council (HVO) to 12 years imprisonment and five members of the 108th HVO Motorized Brigade to ten years (BBC July 10, 1995). In February 1996 a Bosnian Serb court in Doboj indicted and issued arrest warrants for 461 Muslims, charging them with illegally detaining Serbs in camps and shelling civilian targets (BBC, Feb. 26, 1996). See the 1996 Annual Report of the ICTY, S/1996/665, 48. 177 The fact that ICTY accused were walking free throughout Republika Srspka was a clear breach of the provisions of the Security Council Resolution and the Dayton Agreement. The fact that they were still holding public offices was an additional breach of the Dayton Agreement. See press release of 30 October 1996 “international tribunal demands immediate arrest of accused”, at http://www.icty.org/sid/7287 , viewed 14 may 2009, 17:15. 178 See the 1996 Annual Report of the ICTY, S/1996/665, 41. 179 See the 1997 Annual Report of the ICTY, S/1997/729, 45. 180 Holbrooke considered that the use of local media by the indicted wartime leader could lead failure of the peace process and advised president Clinton that the success of the international peacekeeping force IFOR was threatened by the success of Karadži ć in defying the political portions of Dayton. Meanwhile the wartime Bosnian-Serb leader and indicted war criminal continued to use the local media as an instrument to communicate and manipulate the Bosnian-Serb citizens of Republika Srpska. See Holbrooke “To end a war”, 339-340: “Everyday, Karadži ć uses television and the controlled media to prevent local reconciliation efforts. IFOR has the ability and authority to cut these lines, but has refused to do so.”.

44 transmitters of Bosnian-Serb television, they deprived the Bosnian-Serb leader Radovan Karadži ć of his best instrument to communicate and manipulate the Bosnian-Serb citizens of Republika Srpska. In addition the NATO action heralded a restructuring of the entire Bosnian media. However, the ICTY’s relationship with Republika Srpska did not improve significantly. In July 1998 the ICTY reported that Republika Srpska supplied indicted accused false identification papers. 181

Croatia When the ICTY was established in May 1993, the Croatian army was still fighting the Serbs from the Krajina area. Because of the war, the foundation of the ICTY encountered in Croatia “almost complete silence of the press”. 182 During the 1995 Croatian military “Operation Storm” approximately 150,000 to 200,000 Serbs fled the approaching Croat army to Serb-held parts of Bosnia-Herzegovina and Serbia. 183 The remaining Serbs living in Croatia were subjected to harassment by the Croatian authorities with the intent to drive non- Croats out of Croatia. National prosecutions against war criminals were almost exclusively motivated by the ethnicity of the victims and the suspects, and local prosecutors initiated many unsubstantiated cases against Serbs living in Croatia. Although the Croatian authorities were openly anti-Serbian, the Croatian authorities were not openly anti-ICTY. Authorities in Zagreb allowed the opening of an ICTY office, and the first investigations in Croatia by the ICTY investigators were not hindered by the local authorities. 184 The Croatian media became less suspicious towards the ICTY when the first indictments were issued and all accused were of the Serbian ethnicity. 185 Until November 1995, only one indictment had been issued against an ethic Croat. But the cooperation of the republic of Croatia with the ICTY was reluctant at best. The official view of Croatia was that the war was a product of Serbian aggression and all actions of the ICTY that could support this view were embraced in Croatia. The first Croatian ICTY indictee was in a Croatian prison at the time of the issuance of the indictment but instead of

181 See press release of 24 July 1998, "False identifications", at http://www.icty.org/sid/7648 , viewed 18 May 2009, 16:00. 182 The Scholars’ Initiative, Vojin Dimitrijevi ć and Julie Mertus, "Research Team 10, “International Criminal Tribunal for the former Yugoslavia", 57. See The Scholars’ Initiative: Confronting the Yugoslav Controversies, at: http://www.cla.purdue.edu/academic/history/facstaff/Ingrao/si/scholars.htm , viewed 24 June 2009, 21:15. 183 See Case no: IT-01-45-I, The Prosecutor of the Tribunal Against Ante Gotovina Indictment, at http://www.un.org/icty/indictment/english/got-ii010608e.htm , viewed 21 June 2009, 18:45. 184 Press Release of 6 February 1996, “President Cassese takes stock of current co-operation between Croatia, the FRY and the Tribunal.”, at: http://www.icty.org/sid/7420 , viewed 25 June 13:30. 185 Dimitrijevi ć and Mertus, “Team 10: The Hague Tribunal (ICTY)”, 57.

45 handing him over, the Croatian authorities set him free. 186 The relationship between the ICTY and Croatia deteriorated quickly when on 10 November 1995 the ICTY issued indictments against 21 ethnic Croats. By March 1996, approximately one third of all ICTY accused were of Croatian ethnicity. Since its parliament did not implement the necessary legislation, the Croatian authorities had a legislative argument not to cooperate with ICTY, and used this argument to avoid executing arrest warrants of the Tribunal. On 11 November 1995, the day after the indictment of the former Croatian general Tihomir Blaški ć, the Croatian president Franjo Tu ñman appointed Blaški ć to become the Croatian army's general inspectorate. Croatian authorities fully failed to investigate and prosecute the alleged crimes by Croatian forces during and after Operation Storm. 187 Croatia refused to provide the prosecutors of the ICTY with necessary internal documents. 188 Like Republika Srpska, the juridical department of the Croatian government announced it would try suspected war criminals themselves, announcing in January 1996 it would start procedures against more that a thousand Croatian-Serbs. It appeared that Croatia only cooperated with the ICTY when it could accuse ethnic Serbs. 189 Following the end of the war in Yugoslavia, the regime of Franjo Tu ñman repeatedly showed contempt for the ICTY and refused to cooperate. Because of this Croatian policy towards the ICTY, the state came under increasing international pressure and became increasingly isolated from the international community. 190 Only when an agreement with the International Monetary Fund (“IMF”) to benefit Croatia was postponed did the Croatian government enact a law concerning cooperation with

186 On 9 September 1995, the Tribunal indicted its 47th person and first non Serb Ivica Rajic a Bosnian Croat, who the prosecutor claims was a commander in the self styled Croatian Defense Force (HVO) which attacked the village of Stupni Do in central Bosnia in October 1993, killing at least 16 Muslim civilians, forcing over 230 others to flee, and razing village homes. A Tribunal spokesman said he was fairly confident that this Croatian indictee, who was being held on unrelated charges in a Croat run jail in Mostar, would be handed over to the Tribunal for trial. But the authorities in Mostar, instead, set him free. 187 See the 1996 Annual Report of the ICTY, S/1996/665, 41. 188 Especially documents relating to Croatia’s military operations to regain control of Eastern Slovonia and Krajine in 1995. Croatia justified its refusal by arguing that the operations concerned were internal police operations and that the ICTY was not competent to rule on such internal matters. 189 In its 1996 report did the ICTY state to the General Assembly that the republic of Croatia was cooperating unwillingly and it “failed to exercise its acknowledged authority and influence over other Bosnian-Croats with a view to effecting their apprehension.” See the 1996 Annual Report, S/1996/665, 41. 190 The international community increasingly pressured Croatia to cooperate more fully with the ICTY. Reports by the OSCE and the Helsinki International Federation for Human rights criticized the Croatian government for their (in)actions for the return of refugees displaced during the war, the electoral law that Bosnian-Croats could vote in Croatia and the press-situation as well as co-operation with the International Criminal Tribunal for the former Yugoslavia. (See for example: http://www.d-n-i.net/fcs/euro_croatia_report.htm )

46 the ICTY. 191 The juridical department of the republic of Croatia immediately submitted more than 100 national cases to the OTP for review. 192 Through mediation of the Croatian authorities the former general Tihomir Blaški ć surrendered himself to the ICTY.193 On 8 June 1996, Croatian authorities arrested the indicted Zlatko Aleksovski and transferred him to the ICTY. 194 In October 1997, ten indicted Croats were arrested by the Croatian authorities, and on 6 October 1997, the ten accused surrendered themselves. 195 When the trials of general Tihomir Blaški ć and leader Dario Kordi ć were before the ICTY trial chambers, the prosecutorial policy of ”command responsibility” materialised, whereby senior officials could be held responsible for the atrocities committed by those under their command. But when it appeared that the Croatian president Tu ñman and his inner circle could be associated with war crimes, Croatia immediately became less cooperative. With the Blaški ć case in trial phase, the prosecutors of the Tribunal suddenly had problems getting information from Croatia. 196 The relationship between the ICTY and Croatia deteriorated again beginning in 1997. Croatia criticized the Tribunal and cooperated only with the greatest reluctance. According to prosecutor Arbour, the complaints were “no more than a convenient way to evade obligations. 197 In 1999, Croatia refused to transfer two ICTY indictees, Vinko

191 In April 1996, four months after signing the Dayton agreement, the Croatian government implemented the necessary legislation to cooperate with the tribunal. See press release of 26 April 1996, "The Judges take stock of the situation of the Tribunal on the eve of the first trial" at http://www.icty.org/sid/7365 viewed 20 April, 16:30. 192 See the 1996 Annual Report of the ICTY, S/1996/665, 26. 193 See the 1996 Annual ICTY Report, S/1996/665, 41. 194 See the 1997 Annual ICTY Report, S/1997/729, 17-18. 195 On 10 November 1995 they had been indicted by the prosecutor of the ICTY, accusing them of "persecution on political, racial and religious grounds of the Bosnian/Muslim population" of the Lašva Valley Region (Central Bosnia) in 1993. See also press release of 6 October 1997, "Dario Kordic and nine other indictees who have surrended voluntarily will enter a plea on Wednesday 8 October 1997.", at:, http://www.icty.org/sid/7464 , viewed 13 May 2009, 15:00. As the ten accused were charged in two separate indictments, "Kordic and others" and "Kupreskic and others", the prosecutor combined the trials. See also De Volkskrant of 7 October 1997, "Dario Kordic: een 'grote vis' met een schoon geweten", at: http://www.volkskrant.nl/archief_gratis/article736633.ece/Dario_Kordic_een_grote_vis_met_een_schoon_gewet en , viewed 15 July 2009, 18:00. 196 See press releases of 19 February 1997, "Blaskic case: Judge suspends order against Croatia to allow informal resolution of evidence issue.", at: http://www.icty.org/sid/7580 , 28 February 1997, "Blaskic case: the defence requests issuance of a subpoena to the "Republic of Bosnia and Herzegovina" compelling the production of documents "believed exculpatory".", at: http://www.icty.org/sid/7575 , 3 March 1997, "Blaskic case: Federation Defence Minister directed to produce the subpoenaed documents or face contempt proceedings.", at: http://www.icty.org/sid/7574 , 18 July 1997, "Trial Chamber II hands down its Decision on the subpoena issue: the subpoena duces tecum issued to Croatia and its Defence Minister in January 1997 must be complied with by 18 August 1997.", at: http://www.icty.org/sid/7485 and 29 October 1997, "Subpoena issue - The Appeals Chamber unanimously quashes the subpoenae issued to Croatia and its defence minister.", at: http://www.icty.org/sid/7455 , all viewed 24 June 21:45. See also 1997 Annual ICTY Report, S/1997/729, 11-12. 197 During Arbour’s last visit to Croatia, Arbour said concerning Croatia’s cooperation: “On 22 June 1999, I presented to Croatia a consolidated Request for Assistance, representing many outstanding unanswered inquiries, some going back to 1996, and renewed many times. I requested an answer within three weeks, and was informed yesterday that it may be a few months before I am provided with some answers. Other answers, I was told,

47 Martinovic and Mladen Naletilic to The Hague until they had served their prison sentences in Croatia. Only after lengthened negotiations and requests by the ICTY to the Security Council to impose sanctions did Croatia agree to their extradition. The ICTY showed that the Croatian president and his inner circle were associated with war crimes and assisting war criminals. It was not a question of whether Franjo Tu ñman would be indicted but of when. Thus, Tu ñman and his inner circle constantly delayed cooperation by Croatia. On 10 December 1999, Franjo Tu ñman, the “founding father” of independent Croatia died, leaving behind a controversial legacy. Tu ñman had led Croatia as an independent country away from communism and towards democracy. But he had developed Croatia into an authoritarian country ruled by a corrupt elite. By December 1999, Croatia had serious social-economic problems. One in five Croatians were unemployed while the country had become increasingly isolated from the international community as a result of not cooperating with the court of the international community.

Serbia When the international community decided to establish a tribunal for the former Yugoslavia, there was no reaction from Serbia. Politicians and media in Serbia explained the war in the former Yugoslavia as part of an international conspiracy against Serbs and Serbia and the creation of the ICTY fit this picture. Since the war in the former Yugoslavia had been fought outside the territory of Serbia, the war had stayed at a distance for the majority of the Serbian population. As the Serbian people had no experience with the war, it became easy for the Serbian state to manipulate the imagery of the war in general and the role of the ICTY in particular. 198 Because the international politics and media were generally hostile towards Serbs, the people of Serbia believed that the ICTY would be part of a hostile international encirclement. When the ICTY started to issue the first indictments against ethnic Serbians, it fitted the image of an international court against Serbs. The Serbian media accused the court in The Hague of having anti-Serbian prejudices and asserted that the Serbs were being unfairly would not be provided because they relate to Operation Storm, or involve matters of national security, or would be offensive to the dignity of the Croatian people, or would require turning over all of Croatia's military archives.” See also the press release of 28 July 1999, “Statement by Justice Louise Arbour Prosecutor of the International Criminal Tribunal for the former Yugoslavia on her request to the President of the Tribunal asking her to report Croatia's non-cooperation to the Security-Council.”http://www.icty.org/sid/7747 , viewed 13 May 2009, 16:30. 198 Dimitrijevi ć and Mertus, “The Scholars’ Initiative: Research Team 10, “International Criminal Tribunal for the former Yugoslavia" (2006) 63.

48 singled out for prosecution by the Tribunal. 199 Out of the first 53 indictees, 46 were ethnic Serbs and seven were ethnic Croats. 200 But in Serbia, people instead believed that Serbs had been the victim of the wars and that most war crimes had been committed against Serbs. 201 Prosecutor Goldstone stated that the investigations of his office into allegations of war crimes committed against Serb victims were being “hampered” by the low level of cooperation from the Yugoslavian government and the Serbian entities in Bosnia- Herzegovina and Croatia. The indictments against non-Serbs did not persuade Serbians to believe in the impartiality and independence of the court. 202 The Serbian opposition against the ICTY arose partially because of a state controlled media campaign. The position of the Yugoslavian army and Yugoslavian politics had been that Serbia was not a faction in the war of the former Yugoslavia. But the Karadži ć- Mladi ć indictment and the Vukovar indictment made the Serbian regime anxious that the accused in these cases might expose links to the leadership of Serbia. 203 The Serbian state initiated a manipulative news campaign to delegitimize the ICTY and refused to "recognise" the ICTY. 204 Local juridical authorities asserted that an international tribunal such as the ICTY

199 See the 1995 Annual ICTY Report, S/1995/728, 40. 200 As of mid March 1996, the ICTY had indicted 53 persons. (NB: Six persons were twice indicted). 201 At the end of the term of prosecutor Goldstone 18 indictments had been confirmed with a total of 75 indictees, with Serbs the overwhelming majority of the accused not only the Bosnian-Serb political and army leaders had been indicted for event surrounding the fall of Srebrenica and the siege of Sarajevo, but also Croatian-Serbs had been indicted for the firing of rockets at the Croatian capital Zagreb and some Bosnian-Serb perpetrators of crimes committed after occupation of villages in Bosnia-Herzegovina had been indicted. Also, the Yugoslav People’s Army, which consisted mostly out of Serbs, was accused of the offences relating the destruction of Vukovar. Bosnian-Croat forces had been indicted for ethnically cleansing Muslims out of Bosnia- Herzegovina. And the offences committed against Serbian detainees were also persecuted (“Celebici indictment”). 202 When the ICTY announced in March 1996 its first indictment dealing with Bosnian-Serb victims, the Office of the Prosecutor of the ICTY emphasized again that all persons could be investigated and prosecuted if they were responsible for war crimes, “ irrespective of the political or ethnic group to which they belong .”. Original press release stressed this point in Italic: See press release of 22 March 1996, “International Tribunal issues first indictment dealing with Bosnian-Serb victims.” at http://www.icty.org/sid/7392 , viewed 14 May 2009, 14:45. 203 See press release of 11 July 1996 , “Trial Chamber issues international arrest warrants against Karadzic and Mladic and rebukes Federal Republic of Yugoslavia and Republika Srpska for failing to arrest them.” At http://www.icty.org/sid/7327 , viewed 14 May 2009, 16:30. The press release of the Vukovar indictment stressed the “very high level of authority” . This found the Trial Chamber on 3 April 1996 when the Vukovar indictment was confirmed by a ICTY judge that: "the acts charged in the indictment submitted to it constitute only one aspect of a broader operation, including inter alia the shelling, the siege, the capture of Vukovar, the deaths and disappearances of individuals and the massive expulsions of the civilian population which followed. The evidence produced during the hearings, particularly the televised images which were shown, brought out the fact that the military and political responsibilities of the operation derive from very high level of authority ". See also Press release of 3 April 1996, “The Tribunal issues international arrest warrants against Mrksic, Radic and Sljvancanin and reprimands Belgrade for its refusal to co-operate.”, http://www.icty.org/sid/7380 , viewed 14 May 2009, 16:16. 204 Dimitrijevi ć and Mertus, “Team 10”, 63. See also press release, of 6 February 1996, “President Cassese takes stock of current co-operation between Croatia, the FRY and the Tribunal.” http://www.icty.org/sid/7420 , viewed 20 May 2009, 10:15.

49 should have been created by treaty and that they considered the ICTY “illegal”. 205 The Serbian government prevented its citizens from knowing about war crimes and distorted the reality of the crimes. The local media described the ICTY as a vehicle for revenge of the international community. 206 Because of the state supported media campaign the ICTY was rendered even more alien to and remote from the people. The ICTY appeared irrelevant and wrong. 207 Under the Dayton Accords, the Federal Republic of Yugoslavia (FRY) was also responsible for the compliance (or lack thereof) of Republika Srpska. Instead, the Serbian authorities obstructed the ICTY: accused, such as Mrkši ć and Šljivan čanin, were promoted instead of arrested. 208 ICTY indictees used Serbia as a safe haven to escape punishment under international law. 209 The Serbian authorities had “allowed Bosnian-Serb indictees such as Ratko Mladi ć´ […] to roam freely on their territory without fear of apprehension”. 210 Authorities of FRY and

205 The ICTY acknowledged that the traditional approach of establishing an international tribunal was by treaty but the international tribunal emphasised that such a diplomatic approach “had been discarded [by the Security Council] as being too slow (possibly taking many years to reach full ratification) and insufficient effective as Member States could not be forced to ratify such a treaty against their wishes.”, see the 1994 Annual ICTY Report, S/1994/1007, 10. 206 The media criticized the fact that there was no local Balkan participation in the establishment of the international tribunal and it showed the ICTY as a means to achieve “victors justice” of the international community. The fact that there were no judges with the orthodox Christian religion and made the ICTY appear more anti-Serb. Meanwhile the constant demands of the Office of the Prosecutor for better cooperation together with the continuing issuance of indictments of ethnic Serbs only benefited the Serbian media in their scheme to create an atmosphere of paranoia throughout Serbia. 207 See press releases of 11 July 1996 , “Trial Chamber issues international arrest warrants against Karadzic and Mladic and rebukes Federal Republic of Yugoslavia and Republika Srpska for failing to arrest them.”, at: http://www.icty.org/sid/7327 , and of 23 May 1996, "President Cassese reports to Security Council on the continuing violation by the FRY of its obligation to cooperate with ICTY.", at: http://www.icty.org/sid/7355 , viewed 14 May 16:30. 208 See press releases of 2 October 1998, "ICTY President McDonald addresses the Security Council.", at: http://www.icty.org/sid/7633 and 9 January 1998, "Dokmanovic case: The defendant's three co-accused called upon to surrender to the Tribunal before the beginning of the Trial.", at: http://www.icty.org/sid/7704 , viewed 14 may 2009, 18:00. In spite of the issuance of arrest warrants, including international warrants, of orders for surrender and of reports by the President of the ICTY to the Security Council, the three accused were not arrested by the authorities of the Federal Republic of Yugoslavia. Later these three ICTY accused were prosecuted by the local court in Belgrade for the similar war crimes whereupon the ICTY prosecutor immediately stated that: "[…] there is a lack of impartiality or independence and the said [national] investigations or proceedings are designed to shield the accused from international criminal responsibility". See press release of 7 December 1998, ""Vukovar Hospital" case: the Prosecutor seeks the deferral to the ICTY of proceedings instituted in serbia against M. Mrksic, V. Slijvancanin and M. Radic deferral hearing to be held on wednesday 9 December", at http://www.icty.org/sid/7611 , viewed 15 May 2009, 14:30. 209 President McDonald reported to the Security Council that: “The FRY had become a haven for fugitives from international law.”, see press release of 9 September 1998, “The tribunal for the former Yugoslavia seeks the assistance of the security council.”, at: http://www.icty.org/sid/7640 , viewed 14 may 2009, 18:00. 210 See the 1997 Annual Report of the ICTY, S/1997/729, 45. The Serbian parliament was also the last parliament in the former Yugoslavia that had not passed any law implementing the tribunal's Statute. See also press release of 7 June 1996, “President Cassese holds high-level talks in Belgrade.”, at: http://www.icty.org/sid/7344 , viewed 14 May 2009, 16:45.

50 the Republika Srpska constantly hampered the investigations of the ICTY prosecutors. 211 ICTY investigators were not permitted to interview witnesses or victims in Serbia nor Republika Srpska. 212 With Serbia the ICTY constantly entered into discussions about the jurisdiction of the Tribunal. Where Serbia emphasised its own sovereignty, the ICTY emphasized Serbia’s agreement under the provisions of the Dayton Accords. When the crisis in Kosovo escalated, the poor relationship between the ICTY and Serbia was intensified. According to the Serbian government, ICTY investigations into war crimes in Kosovo represented a violation of the sovereignty of Serbia. 213 While ICTY prosecutors were blocked access to the crime scenes, war crimes within the territory of Serbia continued. At the end of 1998 president McDonald reported that the relationship between Serbia and the ICTY was characterised “by near-total non- compliance”. 214 Nearly a month later the ICTY President said that Serbia had become “a rogue State" and wrote a letter to the Security Council, as prosecutor Arbour again was refused a visa to the Serbian province Kosovo. 215 Because the Serb government refused to

211 NB: the Federal Republic of Yugoslavia (“FRY”) was a federal state consisting of the republics of Serbia and Montenegro from the former Socialist Federal Republic of Yugoslavia (“SFRY”), created after Slovenia’s declaration of independence on 25 June 1991 which effectively ended SFRY’s existence. By April 1992, the further declarations of independence by three other republics, Croatia, Macedonia, as well as Bosnia- Herzegovina, left only Serbia and Montenegro within the Federation. The state existed from 1992 to 2003, when it was reconstituted as a State Union of Serbia and Montenegro. The state union effectively came to an end after Montenegro's formal declaration of independence on 3 June 2006 and Serbia's formal declaration of independence on 5 June 2006. 212 See press release of 22 March 1996, “International Tribunal issues first indictment dealing with Bosnian- Serb victims.” at http://www.icty.org/sid/7392 , viewed 14 May 2009, 15:00. 213 See press release of 7 October 1998, “Statement by the Office of the Prosecutor: "The Prosecutor does not accept the refusal by the FRY to allow Kosovo investigations".”, at http://www.icty.org/sid/7631 , viewed 15 may 2009, 9:30. Where the Serbian government issued such statements without legal arguments, the ICTY continually referred not only to the Statute of the Tribunal, but also to various United Nations Security Council resolutions which unequivocally stated that the ICTY did have jurisdiction over Kosovo. See for example the press releases of 7 October 1998, “Statement by the Office of the Prosecutor: "The Prosecutor does not accept the refusal by the FRY to allow Kosovo investigations".”, at http://www.icty.org/sid/7631 ; 15 October 1998, “Prosecutor seeks assurance from President Milošević regarding Kosovo investigations.”, at: http://www.icty.org/sid/7629 ; 22 October 1998 “Letter from President McDonald to the President of the Security Council.”, at: http://www.icty.org/sid/7626 ; 9 September 1998, “The tribunal for the former Yugoslavia seeks the assistance of the security council.”, at: http://www.icty.org/sid/7640 , all viewed 14 May 2009, 18:00. While the war crimes were being committed in Kosovo, president McDonald emphasised relentlessly that the position of Serbia had no basis in law and that the refusal to allow the prosecutors access to Serbia was illegal. See press release of 5 November 1998, "Statement by Judge Mcdonald, President of the International Criminal Tribunal for the Former Yugoslavia.", at: http://www.icty.org/sid/7622 , viewed 14 May 2009, 13:15. 214 See press release of 22 October 1998, “Letter from President McDonald to the President of the Security Council.”, http://www.icty.org/sid/7626 , viewed 15 May 2009, 9:30. 215 See press releases of 5 November 1998, "Statement by Judge Mcdonald, President of the International Criminal Tribunal for the Former Yugoslavia.", at: http://www.icty.org/sid/7622 ; 11 November 1998, “The President urges the Security Council "to provide the support necessary to enable the Tribunal to discharge its mandate".” at http://www.icty.org/sid/7619 ; 8 December 1998, "Judge Gabrielle Kirk Mcdonald, President of the International Criminal Tribunal for the Former Yugoslavia addresses the United Nations Security Council." at

51 cooperate with the Tribunal indictments, including the indictment against the paramilitary leader Željko Ražnatovi ć (also known as “”), were not served in the FRY. By the end of the nineties the ICTY had become a full juridical institution that was beginning to have an impact on the former Yugoslavia. 216 By 1999, the ICTY had developed into a “mature”court, conscious of its potential and its responsibilities. The Serbian regime meanwhile had lost most of its credibility in the eyes of the rest of the world: international politicians were convinced during the third Balkan war that the Yugoslavian president Miloševi ć was an obstacle for a peace process in the Balkans. 217 However, those in the peace process and the prosecutors of the ICTY were well aware of the political difficulties of indicting a sitting head of state. 218 Although the regime of the Serbian president Miloševi ć had tried on numerous occasions to call off the ICTY investigations and prosecutions, the prosecutors were confident enough to accuse the most senior leaders responsible for the crimes that were being committed in the war in Kosovo. The ICTY indicted exclusively senior level persons for crimes committed in the third war in the former Yugoslavia: nine Serbian and Yugoslavian leaders and six high level commanders of the Albanian KLA. 219 Among the high ranking officials were the Yugoslavian President Slobodan Miloševi ć and the Serbian President Milan Milutinovi ć and several Serbian ministers and generals of the Yugoslavian army. 220 Until 1999, war had remained at a distance for the majority of the Serbs in Serbia. But NATO bombing of strategic targets in Serbia made the war suddenly very close and very real. The only way the people of Serbia understood the war was by state supported media. The Serbian state-controlled media reported only acts of violence committed against the Serbs.

http://www.icty.org/sid/7610 ; 18 March 1999, "President McDonald Reports the continued Non-Cooperation by the Federal Republic of Yugoslavia to the Security Council.", at: http://www.icty.org/sid/7783 , all viewed, 15 May 2009, 15:15. 216 See the 1999 Annual Report of the ICTY, S/1999/846, 4. 217 Madeleine Albright, “Mevrouw de Minister. Het persoonlijke verhaal van de machtigste vrouw van de VS”, (Amsterdam 2004) ”), 386-400. This whole chapter (nr. 25), is titled “‘Miloševi ć is het probleem” (“Miloševi ć is the problem”). 218 As stated by the negotiator Lord : “[…] I believe that Goldstone and his successor Louise Arbour had this pragmatic attitude, this judgement of good sense, and the tribunal only indicted Miloševi ć when the prosecutor understood that he was no longer an obstacle, politically. Because after Kosovo there were no more means to negotiate with Miloševi ć.”, see Hazan, “Justice in a Time of War”, 61-62. 219 The six KLA commanders were indicted in two cases: Fatmir Limaj, Isak Musliu and Haradin Bala, as well as Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj. 220 Among the ministers and generals were the Yugoslavian Deputy Prime Minister Nikola Šainovi ć, Yugoslavian Chief of the General Staff General Dragoljub Ojdani ć, Serbian Interior Minister Vlajko Stojiljkovi ć, General Nebojša Pavkovi ć, General Vladimir Lazarevi ć, Deputy Interior Minister of Serbia Vlastimir ðor ñevi ć and Chief of the Interior for Kosovo Sreten Luki ć. See also the press release of 27 May 1999, “Statement by Justice Louise Arbour, Prosecutor ICTY.”, at: http://www.icty.org/sid/7764 , viewed 20 May 2009, 10:30.

52 And so the people of Serbia identified with Serbia’s authoritarian president Slobodan Miloševi ć and were united in their opposition to the ICTY.

Conclusion chapter 2 The majority of all ethnical populations were in denial about their past and the conduct of their forces during the armed conflict. The Serbs, Croats and Bosniaks viewed themselves mostly as victims and not as perpetrators of aggression and atrocities against the other parties. Hence local courts indicted and prosecuted war criminals only of the ethnic rival group(s). As the Tribunal had no enforcement agencies at its disposal, the court was entirely reliant upon the cooperation of states. The cooperation of the states of the former Yugoslavia depended upon the local leaders who often possessed senior authority during the war. As ethnic cleansing and the other war crimes appeared to be part of an organized policy by the warring factions of the former Yugoslavia, it did not appear likely that the politicians of these states would arrest the executioners of their own policies. Without consent of the local leaders that controlled most of the Balkan media, the work of the Tribunal could not reach its intended beneficiaries: the peoples of the former Yugoslavia. Nationalistic, xenophobic and often paranoid local leaders opposed the primacy and even the existence of the ICTY. Thus, the ICTY became increasingly obstructed by this refusal to cooperate. There existed a sharp distinction between the states that recognized their duty to cooperate with the ICTY, and those that did not. Bosnia-Herzegovina and Croatia fell into the first category, and the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Bosnian-Serb entity within the state Bosnia-Herzegovina, Republika Srpska, fell into the second. Yugoslavia’s total refusal to cooperate with the ICTY and the war crimes committed in the Serbian province Kosovo culminated at the end of the nineties in the indictment of the Yugoslavian President Slobodan Miloševi ć. By then Serbia, Montenegro and Republika Srpska had each become a safe haven for (ethnic Serbian) ICTY indictees. To legitimize their attitude against cooperation with the ICTY, the local leaders used propaganda through the state supported media. During the nineties, many leaders of the states of the former Yugoslavia used the media to discredit the ICTY. The wide misunderstandings of the ICTY appeared within the region because nationalist politicians had assimilated the ICTY within their own mythologized versions of the past. Local perceptions of the Tribunal were to a large extent based upon local media: the local media portrayed the court and its accused as controversial (while reporting little or nothing about the war crimes). At the end of

53 the nineties many peoples in the former Yugoslavia, especially in Serbia, believed that the court for the former Yugoslavia was an illegitimate and biased court.

54 The Tribunal is founded on fine principles but in practice how can it actually render the justice that victims want and deserve? We are in The Hague, the affected communities are in the former Yugoslavia. The process must remain relevant to the people affected by the conflict. It is critical that they are informed about the Tribunal and its activities and have the opportunity to apply its work to their own communities. Judge Gabrielle Kirk McDonald 221

[…] there was a strong perception that the Tribunal was shrouded in mystery, depersonalized, distant and unresponsive; too narrow in its focus; and too legalistic in its outlook. Judge Vohrah 222

Chapter 3 The ICTY 1999-2009 By 1999 the ICTY was finally working at full juridical capacity. Nevertheless, the work of the ICTY was not viewed favourably by its constituency: the people of the former Yugoslavia. Although the peoples from the former Yugoslavia were crucial for the fulfilment of the mandate of the Tribunal, it appeared that these people were until 1999 largely ‘forgotten’. The then President Gabrielle Kirk McDonald recognised this when she said:

“I realised that there was a need – a necessity, really – for the Tribunal to do more: to actually communicate with the people of the former Yugoslavia, living hundreds of miles away from the Tribunal that had been established for their benefit.” 223

To this end, the Tribunal’s President McDonald ordered in September 1999 the launch of an ‘Outreach program’. 224 The time appeared right: While the ICTY launched Outreach and its own public information campaign in late 1999, Croatia and Serbia respectively in 1999 and 2000 each got rid of its nationalistic regime and its all-persuasive propaganda machinery.

After six years, our judicial infrastructure is complete and is functioning. We are now able to disseminate our work to its principal beneficiaries, to explain what we are doing and why. Judge Gabrielle Kirk McDonald 225

221 See press release of 13 May 1999, "the International Criminal Tribunal for the former Yugoslavia: making a difference or making excuses?", at: http://www.icty.org/sid/7766 , viewed 25 May 2009, 15:30. 222 Vohrah and Cina, “The Outreach Programme”, 554. 223 Gabrielle Kirk McDonald, “Problems, Obstacles and Achievements of the ICTY”, in Journal of International Criminal Justice, Vol.2, No.2 (2004) 569. 224 See also press release concerning the first Outreach symposium in The Hague of 20 October 1998, "Outreach symposium marks the first successful step in campaign for better understanding of the icty in the Former Yugoslavia.”, at: http://www.icty.org/sid/7627 , viewed 4 May 2009, 14:00. 225 See press release of 13 May 1999, "the International Criminal Tribunal for the former Yugoslavia: making a difference or making excuses?", at: http://www.icty.org/sid/7766 , viewed 25 May 2009, 15:30.

55 “Although a public relations capacity has existed since very early in its creation, the courts primary constituency – the population of the former Yugoslavia – was typically not its principal focus. […] Whilst interested individuals in other parts of Europe and in America could obtain copies of ICTY documents, those in the former Yugoslavia were left wondering “what The Hague is doing”.” Judge Vohrah 226

ICTY: Reaching out to the region; the ICTY “Outreach” program When the Outreach program was launched in September 1999, the Tribunal finally had a section entirely devoted to (communication with) the peoples of the former Yugoslavia. The intention of the Outreach programme was to make the ICTY better accessible and more understandable to the peoples in the territory of the former Yugoslavia. Thus, with the launch of the Outreach programme, the region of the former Yugoslavia became (again) at the centre of the ICTY’s work. Since the ICTY had no press officers for the various states of the region, it was decided that the employees of the Outreach programme would speak on behalf of the Tribunal. To represent the ICTY effectively throughout the region, the Outreach program would have several offices throughout the former Yugoslavia. The office in The Hague would function as the headquarters and would coordinate the communicative activities. The several regional dependencies throughout the region would organise local outreach activities and would function as the point of contact between the ICTY and the peoples of the former Yugoslavia. 227 In due course the Outreach program was established in four capitals in the region: in Sarajevo (early 2000), 228 in Zagreb, in Priština (January 2001) and in Belgrade (April 2001). 229 These regional offices intended to provide information about the ICTY directly to the peoples of the former Yugoslavia. The initial strategy was that the regional offices of Outreach would engage the people at the local level. The regional Outreach offices thus would act as:

226 Vohrah and Cina, “The Outreach Programme”, 550. 227 Annual ICTY Report of 2001, S/2001/865, 39. 228 Initially there was also one Outreach office planned in Banja Luka in the Republika Srpska entity of Bosnia- Herzegovina. It should be noted that the General Assembly Reports asserts that Outreach opens offices, but in the same cities the OTP usually already established offices. It is can be assumed that these ICTY offices are the same and that Outreach did not spent time nor resources to establish brand new offices in the region. 229 In 2003, the Outreach programme expanded its activities to include the former Yugoslav Republic of Macedonia. See the 2003 Annual Report of the ICTY, S/2003/829, 60. For the opening of the ICTY Outreach offices in Kosovo and the opening of the office in the Belgrade (FRY), see the 2001 Annual Report of the ICTY, S/2001/865, 39. See also Vohrah and Cina, “The Outreach Programme”, 555.

56 “centres of information to an extremely broad range of actors, such as journalists, lawyers, victims, judges, academic institutions, think tanks, and the general public”. 230

The Outreach program formulated a strategy to communicate to certain groups within the societies of the region, such as local judicial professionals and local media, so that they could function as intermediaries between the ICTY and the peoples of the region. 231 President McDonald posited that these groups would be best placed to act as information liaisons to explain the Tribunal’s role. 232 The programme finally commenced in September 1999. The Outreach programme operated in the languages of the region: initially only the Bosnian, Croatian and Serbian (BCS) and later also in the Albanian and Macedonian languages. 233 The employees of Outreach would translate and explain the rules and procedures of the court, making the ICTY more transparent for the peoples of the region. The Outreach concept presumed that if those in the legal sector of the former Yugoslavia knew how the court worked, misconceptions of all the people in the region would be challenged. It was intended that the local people in the legal sector would act as mediator between the ICTY and the peoples of the former Yugoslavia. The new section would also be responsible for making the Tribunal better accessable to the peoples of the former Yugoslavia. For this, the Outreach section started to organize and facilitate visits to the ICTY in The Hague. Outreach would attempt to make the ICTY more transparent, more accessible and better understandable to the communities in the region. 234 According to Outreach coordinator Liam McDowell the mandate of Outreach was:

230 International Criminal Tribunal for the former Yugoslavia, “Outreach Programme. Proposal for Contributions to the UN Voluntary Fund for the continued operation in 2003 of the ICTY Outreach Programme” (The Hague 15 August 2002), 6. 231 President McDonald decided upon the policy priority after the first Outreach symposium and after she had send the spokesperson of the ICTY to conduct more than 100 interviews with local and international governmental and non-governmental representatives, lawyers, judges, activists, and international institutions in both entities of BinH and Croatia. See also Vohrah and Cina, “The Outreach Programme”, 553. See also ICTY press release of 20 October 1998, "Outreach symposium marks the first successful step in campaign for better understanding of the icty in the Former Yugoslavia.", at http://www.icty.org/sid/7627 , viewed 10 June 2009, 14:30. 232 President McDonald determined that the Outreach program had to build on an: “effective relationship between the Tribunal and legal and judicial professionals in the region, to ensure that they have access to accurate and timely information concerning the Tribunal.” See press release of 20 October 1998, "Outreach symposium marks the first successful step in campaign for better understanding of the icty in the Former Yugoslavia.", at http://www.icty.org/sid/7627 , viewed 10 June 2009, 14:30. 233 See the 1999 Annual Report of the ICTY, S/1999/846, 38-39. 234 See for example the 2003 Annual Report of the ICTY, S/2003/829, 59-61 where it is stated that the: “[…] outreach programme strives to ensure that the Tribunal’s activities are transparent, accessible and intelligible to different communities in former Yugoslavia. Failure to provide basic information not only permits groups hostile to the Tribunal to project negative and inaccurate information about it but militates against the Tribunal’s achieving one of its key missions of contributing to the restoration and maintenance of peace in the region.”

57 “to explain to all those in the Balkans who want to hear it that the Tribunal is neither an abstract document nor an organ charged for organizing vengeance, but an instrument with a role in the reestablishment of the rule of law and which contributes to the reconciliation, and thus in the end to peace and stability. […] The objective […] is for people to at last acknowledge that the ICTY is theirs, even if it is geographically in The Hague. 235

The new section of the ICTY stumbled after its launch upon the same problems as the Tribunal itself had done six years before: it needed funds. The Outreach program was a United Nations Trust Fund and was therefore entirely funded by voluntary contributions. 236 The 2000 Annual ICTY Report refers to the Outreach programme as becoming part of the main budget of 2001, but the 2001 Annual ICTY Report states that it would "be part of the main Tribunal budget for the period 2002/2003" and the 2002 Annual Report does not mention Outreach becoming part of the regular budget at all. The section thus never received funding from the United Nations. The UN did not fund the program from the Tribunal’s regular budget, but it did assist the new section, through various means. Certain regular budget posts at ICTY headquarters in the Hague were allocated to Outreach-related functions, such as web support, security, and translation. To reduce logistical and security costs, the regional Outreach offices used the existing capacity of UN missions (and, presumably, existing ICTY OTP offices) in the region. 237 But despite this assistance, the Outreach programme needed funds. President McDonald repeatedly urged United Nations member states to support Outreach in contributions. 238 The president referred to Outreach as a “vital project” in the contribution to reconciliation in the region, but the section remained completely dependent on voluntary contributions. 239 And so the section became, immediately after its launch, under-financed. The financial difficulties made the work of the Outreach program more problematic. Many positions at the office could not be filled and the program became understaffed. Of the 1,200 persons working for ICTY in The Hague, only two worked for the Outreach section. 240 In each regional office, only two persons could be employed with one functioning as an

235 Hazan, “Justice in a Time of War”, 190. 236 See press release of 2 January 2001, "Support from Norway to the ICTY Outreach Programme.", at: http://www.icty.org/sid/8039 , viewed 24 June 2009, 22:00. 237 See the ICTY Annual Report of 1999, S/1999/846, 37-39. 238 See press release, of 19 April 1999, “The United States Pledge USD 500,000 to Tribunal's Outreach Project.”, http://www.icty.org/sid/7771 , viewed 5 May 2009, at 12:20. 239 See press release, of 19 April 1999, “The United States Pledge USD 500,000.”. 240 Janine Natalya Clark, “International War Crimes Tribunals and the Challenge of Outreach” in International Criminal Law Review 9 (2009) 105. For more information about ICTY staff, see Table 3: “ICTY budget and staff” in Annex 1: Tables.

58 assistant dealing with administrative matters. 241 Moreover, the regional offices experienced recruitment problems because of the relatively difficult criteria of the position: employees working for the local Outreach office needed to speak the language(s) of the region, needed to have essential knowledge of the conflicts in the former Yugoslavia as well as knowledge of the cases at the ICTY. 242 The Tribunal could not hire a person that could officially speak on behalf of the ICTY in the local languages until the year 2000. 243 The lack of funds of the Outreach program caused understaffed offices in The Hague and in the region while the existing staff used much valuable time to acquire financial sponsors for Outreach activities.244 The Outreach section became increasingly dependent upon cooperation with NGO’s. The NGO’s had the necessary funds and staff which ICTY Outreach lacked. Many outreach- related activities were organized by external NGO’s and most of the activities of Outreach were funded by these NGO’s. 245 Local NGO’s organised and funded seminars, roundtables and symposiums about the ICTY and often invited Outreach representatives to visit and speak. NGO’s with similar objectives as the Outreach programme, gained more tangible results in communicating the work of the ICTY to the people of former Yugoslavia than Outreach itself. 246 It was clear that the work of Outreach was heavily supplemented by this

241 The assistant in the regional office was responsible for distributing materials and monitoring local media. See Clark, “International War Crimes Tribunals”, 105. 242 See the 1999 Annual Report of the ICTY, S/1999/846, 39-40. The office in Zagreb was even run for many years by only one person. See also Clark, “International War Crimes Tribunals”, 105. 243 See also Clark, “International War Crimes Tribunals”, 105. 244 After one year had the ICTY received contributions from the government of the United States of America; the Peace and Stability Fund of the Royal Danish Ministry of Foreign Affairs; the Ministry of Foreign Affairs of The Netherlands; the Ministry of Foreign Affairs of Finland; the Foreign & Commonwealth Office of the United Kingdom and the John D. and Catherine T. MacArthur Foundation. Because Outreach employees had to plead for funds, valuable time was spend on receiving more donations. See press release of 11 October 2000, "Support from the United States of America to the ICTY Outreach Programme.", at: http://www.icty.org/sid/7815 , viewed 2 June 2009, 18:30. 245 The very first Outreach symposium in October 1998 was actually organized by the Coalition for International Justice (CIJ), and financed by the United States Institute of Peace. The two activities that the Outreach programme organized in 1999 - a visit by a group of students from Sarajevo University and a symposium for 15 journalists from the former Yugoslavia had been funded respectively by the Sarajevo University and the CIJ. See press release of 20 October 1998, "Outreach symposium marks the first successful step in campaign for better understanding of the ICTY in the Former Yugoslavia.", at http://www.icty.org/sid/7627 , and "ICTY Outreach Activities - 1999", at: http://www.icty.org/sid/10110 , viewed 10 June 2009, 15:30. 246 In particular, had the Coalition for International Justice (CIJ) similar intentions. See http://www.justiceinitiative.org/db/resource2?res_id=101642 , viewed 10 June 2009, 15:15. The CIJ had been established when the ICTY and the ICTR were established with the purpose to coordinate several NGO’s that supported both tribunals. The CIJ communicated with the region on behalf of the Tribunal while it was in its first years. While the ICTY did not have its own website until May 1997, (see S/1998/737, 45) did the website of CIJ publish ICTY related documents and publicity materials (See http://www.icj-cij.org , and for ICTY related matters see http://iwpr.net/?apc_state=hen&s=c , viewed 6 June 2009, 14:30.). Thus, the website of the CIJ became more relevant than the website of the ICTY. Moreover, the CIJ had field offices throughout the former Yugoslavia in which legal training was given about international criminal proceedings. The CIJ gave also unofficial translations of (relatively simple) ICTY documents to the peoples of the former Yugoslavia. The CIJ

59 level of cooperation. The independent news agency SENSE, 247 for example, continuously publicised news reports about the ICTY throughout the former Yugoslavia. In March 2000 SENSE launched a weekly 15-minute television programme named “The Tribunal” about the ICTY. 248 The program broadcasted in the local languages every week some coverage of the ICTY courtroom proceedings. 249 In addition to daily reports and weekly TV programs, SENSE agency later produced six documentary films that reached an even greater audience. 250 Another NGO that performed a large component of the Outreach mandate was the US based Court TV, which used audiovisual transmissions from the ICTY to broadcast the Tadi ć trial in parts to the former Yugoslavia. 251 When Outreach was launched in 1999, the program immediately made trial proceedings easily available. The availability of live audio and visual broadcast of court proceedings was used by television and radio broadcast media throughout the region. This enabled NGO´s to establish online archives of proceedings in particular trials. 252 Whenever a courtroom was “ín action” the live audio broadcast was transmitted on the internet and consequently was available to the peoples of the former Yugoslavia. This service became especially popular throughout the former Yugoslavia when the former president Slobodan Miloševi ć appeared before the Trial Chamber of the ICTY. 253 The Outreach programme carried out its mandate in large part due to cooperation with and funding by NGO’s, and the Outreach program rarely organised and funded activities on its own. In distributed these and other information about the ICTY throughout the region. The CIJ thus became a key source for human rights groups and legal associations within Yugoslavia. When the Outreach program was launched it immediately cooperated with the experienced CIJ. 247 See the 2000 Annual Report of the ICTY, S/2000/777, 33-34, where Outreach reports it provided: “extensive support for the launch and continuation of an independent BCS television programme”. 248 See "SENSE TRIBUNAL / SENSE", at: http://www.sense-agency.com/en/stream.php?kat=20 and for ICTY related matters, see http://www.sense-agency.com/en/stream.php?kat=3 , viewed 24 June 2009, 22:15. 249 See "ICTY Outreach Activities - 2000", at: http://www.icty.org/sid/10109 , viewed 24 June 2009, 22:15. 250 The six documentary films are entitled: “Triumph of Evil, about the Srebrenica genocide trial” (2001), “Against All Odds, about the first ten years of the ICTY” (2003), “Beyond Reasonable Doubt, an examination of the Srebrenica massacre 10 years later” (2005) and three documentaries detailing the case against Dr. Radovan Karadzic and General Ratko Mladic – “The Fugitives” (2004), “Life and Deeds of Radovan Karadzic” (2005) and “Rise and Fall of General Mladic” (2005). All available at http://www.sense- agency.com/en/multimedia/index.php?mulkat=2 , viewed 10 June 2009, 19:30. 251 This broadcast initially received high viewing figures but these figures soon dropped when the trial became more technical, and the program was suspended due to lack of funding. See Vorah, “The Outreach Programme”, 552. 252 ICTY, “Outreach Programme. Proposal for Contributions to the UN Voluntary Fund for the continued operation in 2003 of the ICTY Outreach Programme”, 8. 253 According to the press releases was the trial of Slobodan Miloševi ć broadcasted by two TV stations in Bosnia and Herzegovina and later distributed throughout Serbia (B92) only after negotiations and lobbying by Outreach. The two tv-stations were Federation Television (FTV) and Republika Srpska Television. See "ICTY Outreach Activities - 2003", at: http://www.icty.org/sid/10114 and see the ICTY press release of 15 February 2002, "Broadcast of Proceedings at the ICTY through the Internet.", at http://www.icty.org/sid/8122 , and see press release of 29 June 2001, "Slobodan Milosevic transferred into Custody of the International Criminal tribunal for the former Yugoslavia.", at: http://www.icty.org/sid/7978 , viewed 8 June 2009, 18:00.

60 2000, for example, Outreach organized 4 activities out of its own budget, with the other 13 activities that year being organized and funded by external NGO’s. 254 One Outreach activity was a seminar in the Croatian capital Zagreb for 45 Croatian attorneys where the legal professionals were informed about the various possibilities for employment at one of the ICTY-Defense teams. 255 Another Outreach activity was a two-day visit of three ICTY judges to Zagreb where the ICTY judges met with representatives of Croatian legal institutions and organizations. Remarkably, this was the first visit of ICTY-Judges to Croatia in the seven years since Tribunal existed. 256 Outreach organized another working visit of ICTY representatives, this time to Sarajevo, and the Outreach program produced a video entitled “Justice at Work” which Outreach employees showed during subsequent presentations. 257 Although these Outreach activities appeared successful in their own means, there was a big contrast between the participants of these small, focused activities and the 18.3 million people that made up the general population of the region. 258 The small group visits were often explaining the workings of the Tribunal to legal professionals and students, and the Outreach activities did result in relationships with the legal communities of the region. But the number of people reached overall was in the hundreds and the activities were relatively few: In 2000 there were 17 outreach-related activities spread out over the states of the region and The Hague and largely funded and organized externally. Activities increased in 2001, when the Outreach program organized together with external NGO’s 75 outreach-related activities, of which ten activities were funded by its own budget. This represented an increase in activities of almost fourfold. However, these activities

254 See also 245 supra, and “Annex 2: ICTY Outreach Activities website 1999-2009”. 255 This seminar was organised in partnership between Outreach and the Croatian Bar Association. See "ICTY Outreach Activities - 2000", at: http://www.icty.org/sid/10109 and “Croatian Bar Association”, at: http://www.hok-cba.hr/en , viewed 29 May 2009, 16:30. 256 See "ICTY Outreach Activities - 2000", at: http://www.icty.org/sid/10109 , and see the press release of 22 September 2000, "The ICTY Judges' Visit to Zagreb has elicited a significant Dialogue.", a http://www.icty.org/sid/7820 , viewed 24 June 22:30. 257 See the video at “XY Films - Justice Unseen”, at: http://www.xyfilms.net/content/view/19/31/lang,english/ , viewed 24 June 2009, 22:00, see also “ICTY Outreach Activities – 2000”, at: http://www.icty.org/sid/10109 , viewed 24 June 22:30. 258 According to the CIA World Factbook had Bosnia-Hertzegovina: 4,613,414 , Croatia 4,489,409, Serbia 7,379,339 and Kosovo 1,804,838 citizens. In total 18.287 million persons (round up to 18,3 million people). All figures are estimates as of July 2009. See CIA World Factbook at https://www.cia.gov/library/publications/the- world-factbook/ , viewed 19 June 2009, 15:00. While the peoples of the former Yugoslavia consisted approximately of 18.3 million persons, did the ICTY report that the Outreach program in its ten years of existence has reached “thousands”. See “ICTY Manual on Developed Practices”, 193-194, where ICTY states that: “[…]this program, thousands of people - victims and members of their families, legal professionals, government representatives, students, journalists and others - have had an opportunity to communicate directly with ICTY representatives.”, at: http://www.icty.org/x/file/About/Reports%20and%20Publications/manual_developed_practices/icty_manual_on _developed_practices.pdf , and "Reports and Publications, ICTY Manual on Developed Practices", at: http://www.icty.org/tabs/14/4 , both viewed 23 June 2009, 21:45.

61 were also of the small, focused group nature, with visits by judges and the ICTY Registrar to the region, workshops with local lawyers in Belgrade, meetings with victims groups, and the first seminar in Kosovo. These activities were successful in their own limited way, but did not produce the necessary sizeable effect on the perceptions of the peoples of the region. The message, well transmitted to the small groups that received it, had not yet trickled down. Yet Outreach continued with this strategy. Outreach Visit to the ICTY ICTY reps to the Local Outreach Total activities activities in The Hague region activities 1999 2 0 0 2 2000 4 2 11 17 2001 11 6 58 75 2002 14 1 47 62 2003 19 1 30 50 In 2002, the level of activity decreased slightly from the prior year, with 14 visits to the ICTY in The Hague, 1 from ICTY representatives to the region, and 47 activities organised by the local regional outreach offices. In 2003, the level of activity decreased further: from a modest 62 in 2002, down to 50 total activities in 2003. 259 Despite its initial problems, the Outreach program did experience some successes. Relatively easy to organise (but very essential for the distribution of information) was the translation of official ICTY documents. The Outreach Programme provided (finally) ICTY documents and press releases in the local languages available to the public. These documents included indictments, judgments, decisions and orders, as well as all basic legal documents such as the Statute of the Tribunal, Rules of Procedure and Evidence and the Rules governing defence and detention matters. These documents were made available on the website of the ICTY, and in hard copies and on CD-roms in The Hague and in the regional Outreach offices. Outreach created a BCS sub-website for the Tribunal; a translation of the website of the ICTY into the local languages. 260 Web-broadcasts of trials and the information-sheets about the cases were

259 To keep these figures in context: when Outreach organises the Office of the Prosecutor to speak for an hour in front of a small group of visiting lawyers from the region, it constitutes an Outreach activity. When a small group of law students from the region visits Chambers and views the proceedings for an afternoon, that constitutes an activity. 260 The 2003 Annual Report of the ICTY noted that “the pages in B/C/S and Albanian generated by the Outreach programme have been frequently visited.” See S/2003/829, 59. It should be noted however that the Albanian website was launched only in 2003.

62 popular. 261 Outreach made public court sessions of the previous years accessible on the internet, and sent documentation about the ICTY to libraries and other educative institutions throughout the region. 262 Although Outreach had few resources and was lacking employees, the program attempted to initiate a public information campaign about the ICTY throughout the region. Sometimes the local media were more than willing to broadcast Outreach activities. For example, when Outreach coordinated a visit of the Registrar of the Tribunal, Hans Holthuis, to Belgrade to meet with the state officials, the visit received “considerable attention” in the media. 263 Often, however, the activities organised by Outreach for the general public in the region had a low turnout. 264 The population in the region was often too hostile to attend the presentations. 265 Some of the events organised by Outreach were broadcast throughout the region. For example, the series “The Hague Live” broadcast by the Serbian channel B92 on 14 May 2002 in which ICTY and Serbians simultaneously were on the air and had a live discussion. But a much greater audience was reached through the efforts of SFOR, which filmed a documentary about the ICTY entitled “Justice for All”. 266 Two state television stations in Bosnia- Herzegovina broadcast the SFOR documentary, watched by 45 per cent of the population aged between 20 and 45 (about 41 per cent of the total population). The broadcast was preceded by a campaign in the local media with billboards and posters to inform people. The documentary was both informative and useful in dismissing some misperceptions, and was rebroadcast by several local TV stations in January 2003. 267 One accomplishment of Outreach was the establishment of a broad network of contacts with local NGO’s, government officials, victims’ groups and educational institutions. 268 This would prove to be valuable in the execution of Outreach’s changing

261 ICTY Completion Strategy Report of 18 May 2009, S/2009/252, 13-14. 262 See the 2000 Annual Report of the ICTY, S/2000/777, 34 where the report notes that the Outreach programme established an "extensive" mailing list for regional organizations to receive material about the ICTY. 263 See "ICTY Outreach Activities - 2001", at: http://www.icty.org/sid/10111 , viewed 24 June 2009, 23:00. 264 Most activities were attended by between ten and some dozen attendees. See “Outreach Activities Archive”, at: http://www.icty.org/sections/Outreach/OutreachActivities , viewed 10 June 2009, 19:30. See also Clark, “International War Crimes Tribunals”, 103 and Annex 4: Outreach Activities 1999-2009. 265 Clark, “International War Crimes Tribunals”, 103. 266 The film is an overview of the ICTY’s establishment and functioning, with comments by some public figures from the region including the director of Belgrade Centre for Human Rights and president of Croatian Helsinki Committee for Human Rights. See "ICTY Outreach Activities - 2002", at: http://www.icty.org/sid/10113 , viewed 24 June 2009, 23:00. 267 See "ICTY Outreach Activities - 2002", at: http://www.icty.org/sid/10113 , viewed 24 June 2009, 21:15. 268 In August 2002, the Outreach section reported: “many hundreds of individuals and organisations from across the former Yugoslavia [that had] voiced their praise for its [Outreach] activities.”, see ICTY, “Outreach Programme. Proposal for Contributions to the UN Voluntary Fund for the continued operation in 2003 of the

63 mandate. Outreach representatives were also involved with the communication between the ICTY and members of the international community (instead of exclusively the peoples of the region). While the efforts of the Outreach program were confined because of financial difficulties, the section did not limit itself to the former Yugoslavia. 269 However, the majority of outreach-related activities organised were limited in their reach. Visits from the people of the former Yugoslavia to The Hague involved very small groups. 270 Accordingly, the local media were not enthusiastic to broadcast these activities. Moreover, the membership of the groups was often limited. The Outreach program concentrated predominantly on law-students, legal professionals, media and politicians from the region. The program thus rarely reached the general public of the region.

Outreach’s expanded mandate Where once the Security Council was pushing the ICTY for indictments, for results and therefore relevance, now that these results had largely been achieved, the Security Council was pushing the ICTY to close down. The Security Council instructed the OTP to end the issuance of indictments in 2004 and ordered the ICTY to transfer some (minor and intermediate) cases to national jurisdictions and requested the ICTY to increase its activities

ICTY Outreach Programme”, 6. However, it should be noted that there is a large gap between the Outreach mandate, its published efforts, and its actual accomplishments. The number of activities published is overshadowed by the fact that these events are small, occur relatively infrequently in light of the number of people to be reached, and are mostly organized and paid by other organizations. Outreach counts each and every visit, seminar, speech, lecture roundtable, tour or meeting as an “Outreach activity”, no matter how big or small. So, the already small number of Outreach activities each year appears to be inflated by this method. To put this into context, Outreach reported 50 total activities in 2003, less than one activity per week to be shared over four countries plus The Hague, over approximately 18.3 million people. See CIA “The World Factbook””, at supra 258 and both charts with outreach activities, Annex 1; Table Outreach Activities 1999-2009; Table Outreach activities in the former Yugoslavia. 269 See for example a conference in January 2004 that Outreach organised in Budapest (Hungary), and the visit of the Canadian Ambassador to Croatia, Stephanie Beck, to the ICTY that Outreach organised in 2004, the presentation of Outreach at the Swedish human rights gathering in November 2005 in Stockholm, Sweden, an Outreach representative visited between 5-19 April 2007 Michigan and New York (US) to promoted the ICTY- “e-internship” and the celebration of The Hague as City of Peace between 27 April - 01 May 2007, were the ICTY held a stand at the exhibition, on 13 September 2008, an Outreach employee travelled to Denver (US) to attend the opening of an exhibition about crimes committed in the area of Prijedor, an Outreach employee attended a seminar on prioritising war crimes cases on 26 September 2008, Oslo, (Norway), and 31 October 2008, Outreach held a video-conference with Iowa University and 10, 11 Nov. 2008, Vienna, Austria, International conference “Dealing with the Past in Western Balkans”, see "Outreach Activities Archive", at: http://www.icty.org/sid/8938 , viewed 24 June 2:00 and Appendix five: ICTY Outreach Activities website 1999- 2009. 270 Visits were also expensive and time consuming. Whenever Outreach organised such visits to the ICTY, the section relied on presentations from employees of the ICTY and on external sponsors that could compensate the expenses. Although the experience of a visit at the ICTY could makes more difference in creating a realistic and accurate view of the work at the ICTY, were these visits expensive, were difficult to organise and reached only a small audience.

64 in the strengthening of judicial systems in the countries of the former Yugoslavia. 271 The Outreach section already had contacts with some professionals of the local courts, and had focused much of its time and resources towards cooperation with and instruction of local judiciaries. The Security Council therefore determined to incorporate the Outreach program in implementation of the Tribunal's Completion Strategy. 272 Although the United Nations did not provide for a budget for the Outreach program, it did provide for a bigger and shifting mandate. Outreach, in becoming part of the Completion Strategy and facilitating the transfer of expertise and cases to the region, was moving further and further away from its stated purpose: to inform the people of the former Yugoslavia about the work and achievements of the Tribunal. As part of the effort to strengthen judicial systems in the region, the ICTY and the international community contributed to the establishment of specialised organs for war crimes investigations and proceedings in Bosnia-Herzegovina, Serbia and Croatia. Because of its prior experience and networks, the Outreach program was called upon to further develop the national judicial potential. The program thus started to play an increasingly important function in the Completion Strategy of the ICTY. The 2005 Annual Report of the ICTY noted even that the Outreach Programme:

“primarily focused on transferring knowledge and best practices to the judiciaries of States of the former Yugoslavia .” (italics added). 273

The difficult financial position of the Outreach program improved in 2004, when the program became entirely supported by the European Commission. 274 In February 2005, an

271 With Resolution 1503 (2003) did the UN Security Council request the ICTY to further develop and encourage the Outreach programme, see Security Council resolution 1503 (2003), “International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda”, where the Security Council states: "Acting under Chapter VII of the Charter of the United Nations, 1. Calls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR and encourages the ICTY and ICTR Presidents, Prosecutors, and Registrars to develop and improve their outreach programmes;[...]", at www.un.org , viewed 27 May 2009, 18:45. See all ICTY Completion Strategy Reports at: http://www.icty.org/tabs/14/2 , viewed 22 June 2009, 15:30. 272 In 2002, the then President of the Tribunal, Judge Claude Jorda, submitted the Annual Report of the Tribunal, which outlined the Tribunal’s strategy for fulfilling its task and winding down its operation. In its resolution 1503, adopted 28 August 2003 (“resolution 1503”), the Security Council endorsed the ICTY’s completion strategy, which envisioned completion of investigations by the end of 2004, completion of all trial work at first instance by the end of 2008, and completion of all work in 2010, by concentrating on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal (“Completion Strategy”). The Security Council reaffirmed the schedule of the Completion Strategy in Resolution 1534. See also SC Resolution 1503 (2003) and SC Resolution 1534 (2004) all available at http://www.icty.org/tabs/14/1 , viewed 22 June 2009, 15:30. 273 See the 2005 Annual Report of the ICTY, S/2005/532, 39. 274 See for example "Read More on the Outreach Programme", at: http://www.icty.org/sid/8936 , viewed 5 May 2009, 18:00. Earlier the European Union was one of the most important contributors, see also ICTY press

65 internal reorganization of the ICTY changed the functioning of the program. The Public Information Services Section and the Outreach Programme merged into a new Communications Service of the Tribunal. The Communication Service was divided into two separate sections: “media, outreach and website” and “ICTY publications, ICTY tribunet (the internal internet portal for ICTY employees) and ICTY visits”. 275 As the mandate of Outreach expanded, the functions of the section also increased. Part of its mandate was to include monitoring the developments of the local and regional courts of the former Yugoslavia, and tracking developments and reforms in domestic criminal justice systems, and war crimes cases conducted by national authorities in the region. In Croatia, the Outreach programme assisted training seminars for judges and prosecutors of local war crimes cases. In 2004, Outreach organised training seminars to share expertise and information with the Croatian authorities, for eventual referral of cases from the Tribunal. 276 Outreach worked with these local courts to facilitate their establishment but mostly to facilitate the transfer of cases in service of the Completion Strategy. Local courts in the region began to establish their own specialised courts for dealing with war crimes. 277 In late 2003, the Belgrade District Court established a Department of War Crimes. 278 In Bosnia-Herzegovina, a national War Crimes Chamber (“WCC”) was established to try the most sensitive war crimes cases, including several ICTY referred cases. 279 The WCC was fully operational by January of 2005. 280 Between 2005 and 2007, eight cases involving 13 indictees were ordered by a special chamber of the ICTY to be referred to local authorities of Bosnia-Herzegovina, Croatia and Serbia. Ten accused were transferred to Bosnia and Herzegovina for trial before the WCC, two accused were transferred to the authorities of Croatia for trial before the Zagreb County Court, and one accused was transferred to Serbia for trial before the Belgrade District release of 7 December 2000, "Support from European Union to the ICTY.", at http://www.icty.org/sid/7796 , viewed 26 May 2009, 15:33. 275 See the 2005 Annual Report of the ICTY, S/2005/532, 39. 276 See the 2004 Annual Report of the ICTY, S/2004/627, 77. See also “Capacity Building, Croatia” at http://www.icty.org/sections/Outreach/CapacityBuilding#croatia , viewed 22 June 2009, 15:30. 277 For more information on the national war crime tribunals see the website of the Court of Bosnia and Herzegovina: www.sudbih.gov.ba ; of the Prosecutor’s Office of Bosnia and Herzegovina: www.tuzilastvobih.gov.ba ; of the Registry of the Court of Bosnia and Herzegovina: www.registrarbih.gov.ba ; of Zagreb County Court: http://sudovi.pravosudje.hr/zszg/ ; of Osijek County Court: http://www.zupsudos.t- com.hr/ ; of Rijeka County Court: http://sudovi.pravosudje.hr/zsri/ ; of Split County Court: http://www.zupsudst.t- com.hr/ ; of the Belgrade District Court: http://okruznisudbg.org.yu and of the Serbian War Crimes Prosecutor’s Office: http://www.tuzilastvorz.org.yu , viewed 22 June 2009, 16:30. 278 See the 2004 Annual Report of the ICTY, S/2004/627, 77 279 To establish the WCC, Outreach and the ICTY worked in Bosnia-Herzegovina closely with the Office of the High Representative , See “Office of the High Representative”, at http://www.ohr.int/ , viewed 22 June 2009, 15:45. 280 See the 2005 Annual Report of the ICTY: S/2005/532, 48.

66 Court. 281 Up to early 2009, the ICTY Outreach programme continued to assist the development of a public information and outreach-strategy of the WCC as the court desired to involve the general public more in the effort to deal with war crimes. 282 However, the Outreach programme itself did not appear to share this agenda. The transfer of cases and expertise continued to absorb the large part of Outreach resources.

“Bridging the gap” As victims´ groups demanded more attention, the Outreach program began to address this crucial part of its focus. The victims association “Mothers of Srebrenica and Žepa Enclaves” reacted harshly to the deal that the OTP made with the accused Momir Nikoli ć and in May 2003 the Outreach program initiated discussion with this NGO. 283 The ICTY had by then seventeen accused persons that had pleaded guilty before the courts of the Tribunal but had not disseminated these statements of guilt throughout the region. 284 It became apparent that more interaction was necessary “to narrow the gap” of information between the ICTY and the victims of the conflict. To narrow this gap, Outreach began a series of conferences titled “Bridging the Gap”. 285 This small effort by Outreach at engagement of victims throughout the region was more in line with the original mandate of the programme. During the conference, senior ICTY officials described what they had done in the relevant cases. The ICTY employees showed the evidence presented during trials, as well as the facts established during the trials and explained factors considered in determining the sentences. These “Bridging the Gap”- conferences were held throughout Bosnia-Herzegovina, especially in the communities that were most affected by the crimes that fell under the Tribunal’s jurisdiction. While the Outreach programme had neglected these communities, the courts of the ICTY had revealed much of what had happened during the wars of the former Yugoslavia. In 2004, eleven years after the Tribunal had been established, and five years after the launch of the Outreach

281 See Annex at 334 supra 282 See Completion Strategy Report of 18 May 2009, S/2009/252, 13-14. 283 Amongst victims there was a growing dissatisfaction with the ICTY: victims increasingly doubted the neutrality of the ICTY, its decision fairness, and the right to plea bargain. For victims - who usually have no opportunities to participate in the trials themselves - it is a matter of trust in the decision-makers and the perceptions of decision fairness. More on the meeting with the Mothers of Srebrenica and Žepa enclaves with the local Outreach representative, see "ICTY Outreach Activities - 2003", at http://www.icty.org/sid/10114 , viewed 24 June 2009 3:30. 284 The ICTY presented at the end of 2003 a conference specially concerning guilty pleas at the ICTY, see "ICTY Outreach Activities - 2003", at http://www.icty.org/sid/10114 , viewed 14 June 2009, 17:00. 285 See press release of 10 May 2004, "Brcko Conference "Bridging the Gap Between the ICTY and Communities in Bosnia and Herzegovina" at http://www.icty.org/sid/8428 viewed 19 June 2009, 18:30.

67 program, did Outreach explain the Tribunal’s work to the victims and the ordinary citizens of the former Yugoslavia. The Outreach programme announced the Bridging the Gap conferences in December 2003. 286 These one-day conferences began in Bosnia-Herzegovina. ICTY staff held talks in places where some of the most notorious crimes under the Tribunal’s jurisdiction had been committed: Br čko, Fo ča, Konjic, Prijedor and Srebrenica. Some conferences later were repeated in Republika Srpska and elsewhere in the region. As of July 2009, eleven Bridging the Gap conferences had been held throughout the former Yugoslavia. While the Outreach programme continued its regular activities and the several one-day Bridging the Gap conferences, most of the focus was on continued relationships with the local judiciaries. 287 From autumn 2005 to autumn 2007 Outreach contributed a number of articles to the bi-monthly journal titled “Justice in Transition” which was published by the Serbian War Crimes Prosecutor’s Office. The journal was distributed to members of the Serbian judiciary, government representatives, NGO’s, international organisations and the diplomatic community. 288 The employees of the Outreach programme made appearances on local television programs explaining the workings of the court. 289 Sponsored by the Belgrade-based NGO Youth Initiative for Human Rights, Outreach selected during 2008 ten students from Belgrade to work for six months as interns across various sections of the ICTY. 290 After the internship at the ICTY, the Serbian interns would serve an additional internship at the WCC in Belgrade. Although the ICTY had for many years of its existence almost a hundred interns during each month, these interns were the first from the former Yugoslavia. 291 Outreach Visit to the ICTY ICTY reps to the Local Outreach Total activities activities in The Hague region activities

286 See press release of 10 May 2004, "Brcko Conference "Bridging the Gap Between the ICTY and Communities in Bosnia and Herzegovina"." at http://www.icty.org/sid/8428 . See also press release of 13 October 2004, "Foca Conference "Bridging the Gap Between the ICTY and Communities in Bosnia and Herzegovina"" at http://www.icty.org/sid/8353 , see also "Outreach Activities Archive", at: http://www.icty.org/sid/8938 , and the 2004 Annual Report of the ICTY, S/2004/627, 77. 287 For example, employees of Outreach contributed a weekly commentary focusing on the ICTY-related issues from late 2003 to early 2005 in a daily Belgrade newspaper “Balkan”. See "View from The Hague", at http://www.icty.org/sid/9974 viewed 5 June 2009, 17:30. 288 See "View from The Hague", at: http://www.icty.org/sid/9974 , viewed 5 June 2009, 17:30. 289 See ANNEX 4: Outreach Activities 1999-2009. 290 See “Outreach Activities - 2008”, at: http://www.icty.org/sid/8938#2008 , viewed 4 June 2009, 18:30. 291 See "Outreach Activities Archive", at http://www.icty.org/sid/8938#2008 , viewed 4 June 2009, 18:30.

68 2004 10 3 38 51 2005 14 3 66 292 83 2006 10 2 31 43 2007 293 15 5 61 81 2008 * 9 0 18 27 2009** 8 0 13 21 * Due to unavailability, not all figures could be inserted in the 2008 row of the chart. ** This chart dates till 20 June 2009: therefore the figures of 2009 are till June 2009.

These efforts, more focused on the victims and general populations of the region, enjoyed some success. However, misperceptions had been allowed to fester among these groups for over a decade, with those in the region believing that the Tribunal was a biased institution that prosecuted selectively.

Conclusion chapter 3 During its first years of existence, the Outreach program predominantly communicated with local legal professionals. There was no initial plan for a widespread program of outreach to the general population of the former Yugoslavia. The Outreach program relied on the local legal professional as points of contact for disseminating the message throughout the region. This initial strategic decision, though successful in its own aims, would have far reaching consequences on the perceptions of the ICTY of the majority of those located in the former Yugoslavia. The distance of the Tribunal in The Hague from its war-torn origins made the international court lose cultural resonance. Many employees of ICTY were not from the region and many more did not understand the conflict or speak the language. At the same time, the attitude of the peoples of the former Yugoslavia was, by and large, still dictated by the local political powers and the media they controlled. The Outreach program was launched to improve the image and significance of the ICTY in its region.

292 It should be noted that the local NGO Youth Initiative for Human Rights (instead of the Outreach programme) organised in 2005, 14 activities that have been inserted into this chart. 293 Although Outreach refers to several visits of the Advisory Committee on the Archives (ACA) as an outreach activity have I not inserted these visits in the charts. This is because the visits of the ACA served more as a fact- finding mission in preparation for the decision about the future of the ICTY archives, than as an Outreach-related activity. I believe that these visits would inflate the Outreach-activities figures. For more information, see the visits of 19-20 December 2007 in Belgrade, Serbia, 17-18 December, Zagreb, Croatia, 11 December, Skopje, Macedonia, 10 December, Pristina, Kosovo and 22 November, Sarajevo, Bosnia and Herzegovina, at: http://www.icty.org/sid/10128 , viewed 5 June 2009, 17:30.

69 However, in achieving these aims, the Outreach section initially narrowed its focus to a select number of activities with small groups of legal professionals. While this strategy would prove to be very beneficial to the eventual expansion of the Outreach mandate to include transferring knowledge and cases to the region in line with the Tribunal’s Completion Strategy, it missed the one group that the Tribunal was created to benefit, and the one group that Outreach was established to reach: the citizens of the region, many of whom were victims. Outreach activities became more focused on juridical cooperation and education with its incorporation into the Completion Strategy, and it wasn’t until 2004 that Outreach began a program focused on victims and the general population. Considering that the ICTY had been established to achieve justice for the victims, it seems scandalous that these groups were not considered a focus of Outreach until they themselves began to stir controversy and demanded to be heard over ten years after the Tribunal was founded. 294 Although the Outreach programme was seen by the Tribunal as one of its core activities, the section was not provided for by the United Nations in the Tribunal’s budget. The European Commission had funded the program since 2004 by contributions estimated ad one million euros per year. Rather than acting as a funding supplement, to increase the scope and audience of outreach activities, this has become the sole source of Outreach funding. The Outreach section has assisted in the establishment of national courts in Bosnia and Herzegovina, Serbia and Croatia specialized in the prosecution of war crimes, but this is arguably outside of the Outreach mandate. Outreach representatives on the ground in Bosnia- Herzegovina, Croatia, and Serbia participated in a variety of public events, communicating directly with the most affected communities, legal professionals, public officials, and civil society leaders in order to counter myths and misperceptions about the Tribunal and its proceedings and to disseminate facts about the Tribunal’s achievements and its contribution to the reconciliation of the former Yugoslavia. However, it is debatable whether the relatively small number of Outreach activities that are truly focused on the victims and citizens of the region have been effective in changing long-standing misperceptions that were used as a nationalistic weapon in the waning days of the conflict.

294 The ICTY in principle has a fivefold objectives: (i) spearheading the shift from impunity to accountability (by trying the (most brute or most senior) persons responsible for serious violations of international humanitarian law, “IHL”), (ii) establishing the facts , (iii) to render justice to the victims , (iv) to develop international law (v) to deter further crimes, and to contribute to the restoration of peace (by trying p) (emphasis added). See also "bringing justice to the former Yugoslavia. The tribunal’s core achievements", at: http://www.un.org/icty/cases- e/factsheets/achieve-e.htm#5 , viewed 10 July 2009, 17:15.

70 Chapter 4 An assessment of Outreach

Perceptions in the Region Despite the accomplishments of the ICTY, the opinion of the people of the region of the ICTY is dismally low. This is partially a result of years of propaganda by state controlled media. The popularity of the ICTY is inversely proportionate to the number accused that came from the countries and particularly the ethnic communities concerned. 295 According to a study in late 2001 and early 2002 the ICTY enjoyed strongest support in the region among the Kosovo Albanians – as much as 83.3 percent. 296 According to a 2002 survey the opinion of the Tribunal was quite high in the Federation of Bosnia-Herzegovina and quite low in Republika Srpska where only 3.6 percent of the population had a positive opinion of the ICTY. The reputation of the ICTY in Serbia was little better (only 7.6 percent favourable) while 21 percent of the people of Croatia had a positive view of the ICTY. 297 The local political powers used their propaganda instruments to influence the dominant ethnic group in their country against the ICTY, so the ethnic minorities were usually positive about the ICTY: the Muslims in Republika Srpska; the Hungarians and the Muslims in Serbia; the Serbs in Croatia and the Muslims in Montenegro. 298 The political and military elite that ruled Bosnia-Herzegovina, Croatia and Serbia were often themselves suspected of involvement in the investigated war crimes. The regimes in these countries did all they could to convince their citizens that the ICTY was biased and hostile towards their states and their ethic groups. The political and military elites used the same method as during the war nationalistic, extreme-dogmatic, hate-inciting propaganda. Therefore, the ICTY continued to have a poor public perception. With help of the local media, the local elite continued to distort and manipulate the message of the Tribunal. Media and public figures were usually hostile towards the Tribunal. In the region, the general public felt usually most connected with the accused of their ethnicity: as every ethnic community perceived its own members as the victim of aggression of war crimes, Bosniaks of Bosnia-Herzegovina supported “their” Naser Ori ć, Croatians supported “their” accused Ante Gotovina, Albanians supported “their” Haradinaj, and even

295 Klarin, “The Impact of the ICTY Trials on Public Opinion in the former Yugoslavia”, 3. 296 As this figure was before the OTP indicted the first Albanians from Kosovo, it is likely that later figures would show a substantial lack of trust in the proceedings of the ICTY. 297 Klarin, “The Tribunal’s Four Battles”, 546-557. 298 The only exception were the Muslims in the Federation of Bosnia and Herzegovina the Muslim majority had a far better opinion of the ICTY than the Croatian minority where this is likely owing to the fact that the ICTY indicted very few Muslims, for much lesser offences. See Klarin, “The tribunal’s four battles”, 546-557 and Klarin, “The Impact of the ICTY Trials on Public Opinion in the former Yugoslavia”, 1-3.

71 during the trial of Slobodan Miloševi ć, Serbs aligned again with their former president. The ICTY accused were perceived as “heroes” by members of their own ethnic community and most ethnic communities in the former Yugoslavia are still in denial about the war crimes. 299 The perception of the ICTY in the former Yugoslavia has not improved significantly since the launch of the Outreach program. According to a 2004 survey of the Belgrade Centre for Human Rights the majority of the polled Serbian citizens were not familiar with the ICTY as an institution. 300 As a matter of fact, the public view of the ICTY became instead more negative. 301 According to a survey the NGO published in 2007 only 7% of the polled Serbian citizens believed that the ICTY was unbiased while 63% believed that “too many” Serbs were accused compared to other ethnic groups. 302 Moreover, trials against ethic Serbs are widely believed to be unfair, and their sentences are considered much harsher than those of accused with other ethic backgrounds. 303 In other countries of the former Yugoslavia, media broadcasts and public figures are also hostile towards the ICTY. 304

The failure of Outreach Currently the ICTY is in its sixteenth year of existence. The Tribunal is estimated to conclude all but three of its trials in 2010. 305 Year after year surveys show that the number ready to testify in war crime trials before the ICTY or national courts are diminishing. 306 The journalist Mirko Klarin reported in June 2009 that:

“Regular polls in Serbia over the past four years have shown that the public view of the ICTY has constantly been negative; if anything, it has deteriorated.” 307

According to a 2007 survey of the Belgrade Center for Human Rights only 7% of the polled believed that the ICTY was unbiased when it tried Serbs. As many as 63% believed

299 See for example Klarin, “The Impact of the ICTY Trials on Public Opinion in the former Yugoslavia”, 1-6. 300 And does the majority of the Serbian citizens not follow the war crime trials in The Hague. See the site of the Belgrade Centre for Human Rights at http://www.bgcentar.org.yu/ , viewed 23 June 2009, 10:30. See the two reports about the ICTY and the public opinion: “Public opinion in Serbia - Attitudes towards the International Criminal Tribunal for the Former Yugoslavia (ICTY) 2004”, and “Public Opinion in Serbia - Attitudes towards the International Criminal Tribunal for the Former Yugoslavia (ICTY) 2003”. 301 Klarin, “The Impact of the ICTY”, 3. 302 Ibidem, 3. 303 Ibidem, 3. 304 Ibidem, 1. 305 This constitutes the latest (and therefore the best) estimate. Two more trials are estimated to finish in early 2011, and the final trial, that of Karadži ć, in early 2012. See press release of 4 June 2009, "President Robinson’s Address Before the Security Council", at: http://www.icty.org/sid/10148 , viewed 23 June 2009, 10:45. 306 The percentage of witnesses willing to testify in The Hague is down from 40% in 2004 to 28% and those willing to testify before national courts is down from 59% to 47% See Klarin, “The Impact of the ICTY”, 3. 307 Klarin, “The Impact of the ICTY”, 3.

72 that there were “too many” Serb indictees (compared with other ethnic groups). The ICTY is currently more unpopular than when the Outreach program was launched ten years ago. In Serbia, for example, the majority believes that the ICTY is a greater danger to the national security than NATO (which was responsible for the bombing campaign against Serbia in 1999). 308 There have been no recent surveys in the other former Yugoslavian countries but:

“statements by public figures and comments in the media are hostile and increasingly derogatory, contemptuous and disparaging towards the ICTY in general, and the Office of the Prosecutor (OTP) in particular.” 309

Clearly the perception of the ICTY in the region has deteriorated. Given that the Outreach program has been a priority within the ICTY since 1999, 310 why is it then that after 16 years, 161 indictments, concluded proceedings against 120 accused in 86 cases and more than 1,000 years of total prison sentences, the opinion of the ICTY throughout the former Yugoslavia is so low? First, Outreach was not in the minds of the ICTY organisers when they established the Tribunal, who had many other tasks to focus on. That the people, the victims and the language of the region were largely ignored was glaringly apparent. To be fair, how could they focus on getting publicity when there were no results to publicize? Second, after six years of existence Outreach was launched under financed. The Outreach program was established to get the message out and correct misperceptions in the region. But Outreach was established with no budget. Third, the Outreach program had a flawed strategy. The strategy of the program had a limited focus which did not address (and reach) the large potential audience in Yugoslavia. Instead the Outreach program favoured a small, focused audience of juridical backgrounds. The focus on local judiciary would prove useful in the later transfer of cases, mandated by the Security Council. But it would also lead to a change in Outreach focus further away from the people and victims. Fourth, the Outreach program was static and passive. Instead the program had to be more dynamic and more flexible. The program selected in 1999 upon a strategy to reach out to the peoples of the former Yugoslavia. Outreach continued the policy even when it appeared not to work very well. The Outreach program had to reach about 18.3 million persons, with

308 Klarin, “The Impact of the ICTY”, 1. 309 Klarin, “The Impact of the ICTY”, 1. 310 Vohrah and Cina, “The Outreach Programme”,547, and 551, where it is stated: “throughout 1999 the situation became a policy priority within the court”.

73 different religious backgrounds, living in seven different states, speaking even more local languages and with an often hostile regime and media. The program decided to connect with the peoples of the former Yugoslavia by reaching out through persons acting as intermediaries between the ICTY and the former Yugoslavia. 311 The trickle-down strategy did not work as expected, but nevertheless the program continued its (ineffective) efforts. The Bridging the Gap series of conferences is the only witness-focused, public-focused program, yet it represents a very small part of the Outreach activities. 312 Most Outreach-related activities remained targeted at judicial and journalist intermediaries. Fifth, when the program finally changed its mandate, it abandoned its original focus: the peoples of the former Yugoslavia. Because of its focus at local judiciaries, the mandate of the Outreach program changed. In time the Outreach mandate has shifted to Completion Strategy. The Outreach program facilitated local judiciaries in the establishment of specialised organs for war crimes investigations and proceedings in Bosnia-Herzegovina, Croatia and Serbia. These Outreach activities were effective for helping the ICTY to close its doors, but not for getting the message out. Moreover, this shift in mandate diverted necessary funds from disseminating the ICTY achievements to the transfer of cases and knowledge for its completion. Sixth, the activities of the program never increased to the necessary extent. Initially this delay was caused by the insufficient funds. However, once EU funding was in place, Outreach operated with a budget that can be estimated at approximately one million euros per year. 313 With this funding, much could have been and should have been accomplished. The total number of Outreach activities launched by the program is for every year approximately fifty, which would be about one Outreach activity per week. 314 To reach 18,3 million people throughout four countries, speaking different languages with merely one speech, lecture,

311 For the calculation of the number of people in the region, see: 258. ICTY Manual on Developed Practices, 193-194, at: http://www.icty.org/x/file/About/Reports%20and%20Publications/manual_developed_practices/icty_manual_on _developed_practices.pdf , viewed 23 June 2009, 21:45. 312 So far there are eleven “Bridging the gap” related conferences in throughout the history of the Outreach program. 313 The 2003 Annual ICTY Report states that the Outreach programme had as of 30 June 2003 expenditures of approximately $1,106,499. See , S/2003/829, 64. NB: all other Annual ICTY Reports make no mention of expenditures. The chart “Table Outreach Activities 1999-2009” in ANNEX IV, ICTY Outreach Activities 1999- 2009 demonstrates that the total number of Outreach activities other years were not considerably more (in 2000, 17 activities, in 2001, 75; in 2002, 62; in 2003, 50 ; in 2004, 51; in 2005, 83 in 2006, 43 in 2007, 81 activities, etc). As the program had not much more activities in 2003 than in other years, does it appears appropriate to assume that the expenditures of the Outreach program in other years would match the 2003 expenditures: approximately $1 million dollars. 314 See “Table Outreach Activities 1999-2009” in Annex4: Outreach Activities 1999-2009, 2.

74 roundtable, conference, visit, or meeting a week would be impossible. The activities never increased to the necessary extent. It should be noted that the reports of the program are vague. It is unclear how the program spent its funds. It is also unclear on what activities the collected funds were spent. It is remarkable that the Outreach section – which had to make the ICTY more transparent, more accessible and better understandable - is unclear about its own expenses. Moreover, it appears that the registration of activities have been inflated by activities of other departments such as the OTP and external NGO’s. Outreach organised or funded few of the reported activities. Sixth, the employees at the Outreach section had little cultural resonance with the region. The Outreach staff were, as ICTY staff, recruited from all over the world. Although it is understandable that some ICTY organs, such as the OTP, were wary of recruiting people of the region, is it not understandable that the Outreach section had such anxieties. The section dealing entirely with the former Yugoslavia, should have been constituted mainly of people from this area. All staff of the Outreach program should be able to communicate in the languages of the region. Seventh, the execution of the Outreach activities were irregular and disproportionate. Serbia received at any time almost half of all the Outreach related activities - the activities were unevenly divided amongst the states of the former Yugoslavia. 315 The activities were unequally distributed throughout the region and the activities were also irregular throughout time: in 2004 the program conducted 10 activities in Bosnia-Herzegovina where in 2005 it conducted 31 activities. 316 The Outreach section had two staff members for every state of the region and a small headquarters in The Hague. Funded by approximately a million euros per year and staffed with approximately like ten staff members, the Outreach program should have increased its activities and distributed them more equally across the region. 317 Eighth, the Outreach program did not assess the results of its activities. Like ICTY had done up to 1999, it seems that the Outreach program expected its work to speak for itself. After the translation of several key documents such as the Statute of the Tribunal, the Rules of Procedure and Evidence, the Key Figures and an ICTY leaflet into the languages of the region, the Outreach section assumed that spreading these documents would explain the

315 See “Table Outreach activities in the former Yugoslavia” in Annex I. 316 See “Table Outreach activities” in Annex 4. 317 The regional Outreach offices all had one administrative assistant and one professional officer. As there were four regional offices, the program had eight employees throughout the region. As it is likely that the Outreach- headquarters in The Hague would have at least two employees, the program has in total ten Outreach employees.

75 workings of the ICTY. 318 However, these documents, such as the Statute and the Rules of Procedure, were too legalistic and the other documents, such as the ICTY leaflet, were designed more for tourists visiting the Tribunal. 319 Nine, Outreach neglected the digital channel of communication. Instead, the program focused on more traditional techniques of communication. For the most part of its existence, Outreach did not have a meaningful web presence. 320 The website was both in English and in only one language of the region. The layout of the web page was not understandable nor was it transparent: it consisted of one page (no tabs nor any links) where all the activities of the section since its inception in September 1999 were listed in a calendar. Only when the ICTY launched its improved website in December 2008 did the Outreach section have a complete web presence with information about the workings of the ICTY. 321 Ten, too much attention of the Outreach program was directed at the dissemination of basic legal documents such as the ICTY key figures. Documents, such as the Statute of the ICTY, the Rules of Procedure and Evidence and the key figures contain much valuable information but they do not explain the workings of the Tribunal. Outreach should have presented evidence of ICTY cases, instead of key figures. In the trial chambers of the ICTY certain facts were proven beyond reasonable doubt, which should have been communicated to the peoples of the region. 322 ICTY judges have heard testimonies of eyewitnesses, survivors and perpetrators which should have been distributed throughout the region. Forensic data and documentary and video evidence should have been easily accessible for the peoples of the former Yugoslavia. Outreach should have proactively distributed the evidence which was showed during ICTY trials.

318 See for example the leaflet “ICTY Leaflet - Dépliant du TPIY - Brošura MKSJ”, http://www.icty.org/sid/10050 , 23 June 2009, 16:00. The Statute of the ICTY and the Rules of Procedure and Evidence are an annex. 319 See “ICTY Leaflet”, at: http://www.icty.org/sid/10050 , viewed 24 June 2009, 22:00. 320 See the previous website of the ICTY Outreach program, “ICTY Outreach Programme” at: http://www.un.org/icty/bhs/outreach/events.htm , viewed 23 June 2009, 16:00. See also Appendix five: ICTY Outreach Activities website 1999-2008. 321 It should be noted that the new Outreach page in the new ICTY website contains considerably more past Outreach activities than its predecessor. It appears that the section has inflated their activities with external activities of NGOs. In December 2008, the ICTY launched its new website with more information about its history and its work. See press release of 10 December 2008, "New Tribunal Website Launched - www.icty.org", at: http://www.icty.org/sid/10024 and see “Welcome to the New ICTY Website” at http://www.icty.org/sid/9995 ,viewed 4 June 2009, 17:45. 322 See for example: "The Institute for War and Peace Reporting (IWPR): Balkan Crisis Report, Execution Video Jolts Serbia's Memory" dated 9 June 2005, at: http://www.iwpr.net/?p=bcr&s=f&o=242137&apc_state=henibcr2005 , viewed 25 June 2009, 10:30 where horrifying images of mass murder were made public thru the trial of the former Serbian leader Slobodan Milosevic in The Hague. Subsequently, a professor at the University of Hamburg Institute for Peace, Janja Bec- Nojman, told IWPR: “After the publication of these images, nothing will be the same" .

76

What Could Outreach Have Done Better? When the ICTY was established Outreach was neglected. In 1999, the Outreach program got launched with a misguided strategy. While the program should have abandoned the strategy, it continued. The program got undermined by lack of substantial activities. Initially, the program got underfunded. Later, the program received nearly a million euros a year. The people of the region and the international community could and should expect more. The Outreach program had a difficult mandate: the section had to make ICTY trials understandable to audiences of all ethnic communities in the territory of the former Yugoslavia, while the ICTY trials were difficult to understand even for the local legal professionals. However after ten years of Outreach activities, some recommendations for the program can be made: First, a more comprehensive website should have been an early priority and it should have been launched in the local languages. The web is a powerful tool. Information can be spread and shared rapidly among a huge audience. The ICTY could have provided evidence, such as videotapes of mass killing online available for the general public of the region. 323 The Outreach program claimed that victim protection and confidentiality prevented meaningful information sharing simply is not valid, if there is so much public information that has not been publicized or promoted. Second, the ICTY should have mounted an aggressive campaign. The ICTY and the outreach program on its behalf, should be utilising all tools available to counter clear misstatements of fact about the cases put forth by the media and political leaders in the region. The Tribunal should (not be afraid to) go to the national courts of the region if local persons utter clear lies about the ICTY. All means possible should be used to counter the propaganda of the local media. Misstatements on the internet should be immediately contradicted. 324 Third, the Outreach program should have focused on explaining the evidence presented in court, the conflict and the events that took place to the general populations of the region, instead of focusing continually on small groups of juridical professionals and students who often already possessed an understanding of these issues.

323 322 supra. 324 The ICTY should use its own website to publicise information about the ICTY and should try to counter clear lies about the Tribunal, see for example Table 4: “Q & A examples” in Annex 1: Tables.

77 Fourth, the Outreach program should have addressed victims groups proactively and sooner in its mandate, rather than waiting for these groups to vocally complain about being ignored. Better steps should have been taken to reach out to these groups, such as keeping good contacts after their contacts with the ICTY-Victims an Witnesses Section (“VWS”) and after the trial activity. Fifth, the ICTY should have focused more on what the court actually accomplishes, the work that is done on a day to day basis, instead of releasing rules, procedures, facts and figures. Sixth, while forming networks and alliances with local judiciaries, and assisting and facilitating the eventual transfer of cases is a necessary step, the substantive part of this process is not an outreach-related function, and should have been handled perhaps by a transition team, but certainly should have been funded from the ICTY regular budget, and not the limited funds of Outreach. Moreover, if Outreach were to focus its message on larger groups of the general population, rather than small groups of lawyer and journalists, more people could be reached. Seventh, Outreach should have worked much more with the cooperative and knowledgeable local NGO’s. These NGO’s have proven willing to do the work for Outreach, but the limited number of activities Outreach facilitates each year, and the number of participants, must be increased if perceptions are to change. Together bigger and better programs could be coordinated. Eighth, the successful Bridging the Gap-conferences had many strong elements: evidence from court cases, a focus on people and victims, presentations by ICTY staff who could better explain the cases and evidence all made for a rich presentation. However, these conferences were not conceived until 2004 and have only been held five times since then. Bridging the Gap is actually a model for what the entire Outreach program should have been; a series of conferences continually held and equally distributed throughout all parts of the former Yugoslavia.

78 Conclusion The ICTY and its region: a reserved relationship In this thesis I have examined why the ICTY has done so little to address and correct misperceptions of its achievements throughout the former Yugoslavia. Up to 1999, the ICTY has forgotten its constituents. In chapter one I described the difficulties the Tribunal experienced which caused it to neglect the peoples of the former Yugoslavia. The warfare hindered the work of the ICTY: witnesses could not be called, mass graves could not be examined, crime sites could not be examined, investigations could not be conducted and arrest warrants could not be executed. The ICTY received too little support from the international community, as important states like Great-Britain and France opposed a strong Tribunal. As a result, the UN was reluctant and ineffective in its support. Even the UN Security Council – the institution that founded the ICTY – did not strongly back the Tribunal. As a consequence, the ICTY received too little funds. Most Member States of the UN General Assembly initially did not ratify the Statute of the Tribunal. Because of numerous difficulties, the ICTY developed slowly into a workable institution. Judges were selected, the statute and rules for the court were adopted, employees were hired and courtrooms were built. After prosecutor Goldstone had formulated an indictment strategy, suspected war criminals started to be indicted by the ICTY. However, neither the states of the region nor the international peacekeeping force would execute the resulting arrest warrants. Only when prosecutor Arbour introduced secret indictments, did detainees begin to arrive at the UN detention unit in The Hague. More prison cells and additional courtrooms were built and more judges were appointed. International support for the ICTY increased significantly when the war in Kosovo escalated. At the end of the nineties, the ICTY had developed into a fully functioning juridical institution. Only then, with the launch of the Outreach program in September 1999, did the Tribunal started to address its constituents in the former Yugoslavia. In chapter two, the relationship of the region with the ICTY is more central. As local leaders often possessed senior authority (and responsibility) during the war, they opposed cooperation with the Tribunal. The local leaders used their state-supported media to manipulate their citizens. The peoples of the region were disorientated because of the widespread economic crisis and the war in the former Yugoslavia, and the official media capitalised on this by preaching nationalistic xenophobia. As the state-supported press was the sole source of information for most peoples, the hateful propaganda found fertile grounds. Serbs, Croats and Bosniaks each perceived themselves as victims and not perpetrators of

79 aggression and atrocities against the others. Increasingly, people of the region began believing in conspiracies and perceiving the ICTY as an ”executor” of these international conspiracies. Local leaders often found enough local support to hinder or obstruct the (primacy of) the ICTY. As the ICTY had no enforcement mechanism, the court was entirely reliant upon cooperation of states. Bosnia-Herzegovina and Croatia recognised their duty to cooperate with the ICTY, but the Federal Republic of Yugoslavia (Serbia and Montenegro) and Republika Srpska refused to cooperate entirely. The war crimes committed in the Serbian province Kosovo culminated at the end of the nineties in the indictment of the Yugoslavian President Slobodan Miloševi ć. By then Serbia, Montenegro and Republika Srpska had each become a safe haven for (ethnic Serbian) ICTY indictees. It was clear that without assistance of the local leaders the work of the ICTY could not reach its intended beneficiaries: the peoples of the former Yugoslavia. Chapter three, “The ICTY 1999-2009”, examines the launch of the Outreach program and its activities between 1999-2009 throughout the former Yugoslavia. The program was launched in September 1999, to actively “reach out” to the peoples of the former Yugoslavia. The intention behind the Outreach program was that the region of the former Yugoslavia should be at the centre of the Tribunal’s work. The program had to make the Tribunal more transparent and its trials and judgements more accessible and more understandable to all audiences in the territory of the former Yugoslavia. To achieve its mandate, the employees of the Outreach section had to communicate (from regional offices) in the languages of the region with the peoples of the former Yugoslavia. Accordingly, local offices were opened and a strategy was formulated to engage the local legal community which could function as “intermediaries” between the ICTY and the general public of the region. However, the Outreach program became underfunded immediately after its launch. Because of inadequate finances and recruitment difficulties most outreach-related activities were outsourced to external NGO’s. To implement the Completion Strategy of the ICTY, in 2003 the UN Security Council requested the Outreach program to strengthen local judicial systems. Thus, the mandate of the Outreach program expanded, if not its funding. In 2004 the program became entirely supported by the European Commission. In launching several one-day Bridging the Gap- conferences the program came closer to its intended purpose: to inform the peoples of the former Yugoslavia concerning the work of the ICTY. However, the efforts were relatively small.

80 Chapter four, entitled “An assessment of Outreach” describes the local perceptions of the ICTY. In 2009 the ICTY was more unpopular than when the Outreach program was launched ten years before. Obviously, communication with the region was not in the minds of the original founders when ICTY was established, as there were no results to publicize. After six years the Tribunal was fully functional and Outreach was launched. But the Outreach program did not correct the oversights of the ICTY; it neglected to engage with and focus on the peoples of the former Yugoslavia. Too many activities of the program were focused on local judiciaries. Though it became clear that this strategy was not successful in changing opinions, the program continued its policy. By doing so, the Outreach program forgot the peoples of the region. When the program started to assist local judiciaries with the prosecution of domestic war crimes trials, the peoples of the region were even further overlooked. Reporting of the work of the Outreach program was often inflated. Most of the organising and funding came from external NGO’s. Activities reported involved work done by non-Outreach departments of ICTY, such as OTP staff who explained their work in the ICTY cases. It appears that Outreach focused much of its efforts on building a long and inflated resume of activities rather than creating positive impressions, or countering negative ones, in the region. Recent surveys show that the public perception of the ICTY have deteriorated. The ICTY is currently more unpopular than when the Outreach program was launched ten years ago. Until 1999, the ICTY had forgotten its constituents. From 1999, the Outreach program neglected them. Meanwhile, the local leaders that controlled most of the Balkan media both brainwashed and incited the public against the ICTY, using nationalist propaganda of hatred, fear and revenge. The Outreach efforts of the ICTY were unsuccessful. The peoples of the former Yugoslavia had not been reached. Instead, the ICTY and the people of the former Yugoslavia have a reserved relationship.

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83 Articles Almqvist, Jessica, “The Impact of Cultural Diverity on International Criminal Proceedings”, in Journal of International Criminal Justice 4 (2006). Benveuti, Paolo “The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia”, in EJIL vol. 12 no 3 (2001). Cassese, Antonio, “The ICTY: A Living and Vital Reality”, in Journal of International Criminal Justice, Vol.2, No.2 (2004). Clark, J.N. “International War Crimes Tribunals and the Challenge of Outreach” in International Criminal Law Review 9 (2009) Enaut, Victoria "The ICTY’s Outreach Programme and the Challenges to its Success at Shaping Local Popular Perceptions of the Tribunal. (MA Conflict, Security and Development Department of War Studies King’s College London, September 2006). Dimitrijevi ć, Vojin and Mertus, Julie, “The Scholars’ Initiative: Research Team 10, “International Criminal Tribunal for the former Yugoslavia" (2006). Freeman Mark, "Bosnia and Herzegovina: Selected Developments in Transitonal Justice", (October 2004). Goldstone, R.J., “Assessing the work of the United Nations war crimes tribunals”, in Stanford Journal of International Law, (1997). Goldstone, Richard J. and Hamilton, Rebecca J., “Bosnia v. Serbia: Lessons from the Encounter of the International Court of Justice with the International Criminal Tribunal for the Former Yugoslavia”, in Leiden Journal of International Law, 21 (2008). Hazan, Pierre, "The Revolution by the ICTY: The Concept of Justice in Wartime", in Journal of International Criminal Justice 2 (2004). Hussain, Varda, "Sustaining Judicial Rescues: the Role of Outreach and Capacity-Building Efforts in War Crime Tribunals", in Virginia Journal of International Law (Winter 2005) . Johnstone, Diana, "Selective Justice in The Hague. The War Crimes Tribunal on former Yugoslavia is a mockery of Evidentiary Rule", in The Nation, September 22, (1997). Klarin, Mirko, “The Tribunal’s Four Battles”, in Journal of International Criminal Justice, Vol.2, No.2 (2004) . McDonald, Gabrielle Kirk, “Problems, Obstacles and Achievements of the ICTY”, in Journal of International Criminal Justice, Vol.2, No.2 (2004) . McDonald, G.K.,”Reflections on the contributions of the International Criminal Tribunal for the Former Yugoslavia”, in Hastings International and Comparative Law Review, (2001).

84 Meron, Theodor, “Procedural Evolution in the ICTY”, in Journal of International Criminal Justice 2 (2004) Niemann, Grant, "The Life and Times of Senior Trial Attorney at the ICTY from 1994 to 2000", in Journal of International Criminal Justice 2 (2004). Peskin, Victor, “Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme” in Journal of International Criminal Justice, Vol.3, No.4 (2005). Ponte, Carla del, "Prosecuting the Individuals Bearing the Highest Level of Responsibility", in Journal of International Criminal Justice 2 (2004) Ponte, Carla del, "Investigation and Prosecution of Large-scale Crimes at the International Level. The Experience of the ICTY", in Journal of International Criminal Justice 4 (2006) Raab, Dominic, "Evaluating the ICTY and its Completion Strategy. Efforts to Achieve Accountability for War Crimes and their Tribunals", in Journal of International Criminal Justice 3 (2005). Robinson, P.L, “Ensuring fair and expeditious trials at the International Criminal Tribunal for the Former Yugoslavia”, in European Journal of International Law, (2000). Saxon, Dan “Exporting Justice: Perceptions of the ICTY among the Serbian, Croatian, and Muslim Communities in the Former Yugoslavia”, in Journal of Human Rights, Vol.4, No.4 (2005). Shraga, Daphna (2005), “The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdiction” in Skaar Elin et al. “Roads to Reconciliation” (Lanham, Maryland: Lexington Books). Schrag, Minna, “Lessons learned from the ICTY Experience”, in Journal of International Criminal Justice, Vol.2, No.2, (2004). Tolbert, David, “The ICTY: Unforeseen Successes and Foreseeable Shortcomings”, in The Fletcher Forum of World Affairs, Vol.26, No.2, (Summer/Fall 2002). Tolbert, David, “Reflections on the ICTY Registry”, in Journal of International Criminal Justice, Vol.2, No.2 (2004). Tournaye, Cecile, “Genocidal Intent Before the ICTY”, in International and Comparative Law Quarterly vol. 52, (April 2003). Verfuss, Thomas, "Trying Poor Countries' Crimes in a Rich City. The Problems of the Press from the Former Yugoslavia", in Journal of International Criminal Justice 2 (2004). Vlaming, Frederick de, "More Voices Should be Heard on the ICTY", in Journal of International Criminal Justice 2 (2004).

85 Vohrah, L.C. and Cina, J. (2001), “The Outreach Programme” in May, et al., “Essays in ICTY Procedure and Evidence”, (The Hague 2001). Wald, Patricia M., "Punishment of War Crimes by International Tribunals", in Social Research, Vol. 69, No 4 (Winter 2002). Zacklin, Ralph, “The Failings of Ad Hoc International Tribunals”, in Journal of International Criminal Justice, Vol.2, No.2 (2004).

Websites

Amnesty, http://www.amnesty.org/en/region/serbia Balkan Insight, http://www.balkaninsight.com/ Belgrade Centre for Human Rights, http://bgcentar.placebo.co.yu/home_en CIA Worldfactbook, https://www.cia.gov/library/publications/the-world- factbook/geos/rb.html Crimes of War Project, http://www.crimesofwar.org/ Hague Justice Portal, http://www.haguejusticeportal.net/ humanitarian law center, http://www.greekhelsinki.gr/bhr/english/organizations/hlc/hlc_17_01_01.html human rights watch, http://www.hrw.org/ International Criminal Court, http://www.icc-cpi.int/Menus/ICC?lan=en-GB International Crisis Group, http://www.crisisgroup.org/home/index.cfm?id=1247 International Court of Justice, http://www.icj-cij.org/homepage/index.php?lang=en ICTY, http://www.icty.org/ ICTY Outreach Programme, http://www.un.org/icty/bhs/outreach/events.htm international idea, supporting democracy worldwide, http://www.idea.int/ institute for war & peace reporting, http://www.iwpr.net/?p=tri&s=p&o=- &apc_state=henfbcr242137 NATO, http://www.nato.int/ NIOD, http://www.vredesnaam.com/NIOD/NIOD2.html , http://www.niod.nl/ Office of the High Representative (OHR, http://www.ohr.int/ Organization for Security and Co-operation in Europe, http://www.osce.org/serbia/ Radio Free Europe / Radio Liberty, http://www.rferl.org/section/Serbia/168.html SENSE, http://www.sense-agency.com/en/stream.php?kat=20 Universities: http://www.law.virginia.edu/html/news/2005_spr/wald.htm , http://hague.bard.edu/ http://jurist.law.pitt.edu/paperchase/2008/04/icty-acquits-former-kosovo-pm-of- war.php , UN, www.UN.org UNMIK - United Nations Interim Administration Mission in Kosovo (UNMIK), Hague Justice Portal, http://www.haguejusticeportal.net/ Youth Initiative for Human Rights (YIHR), http://www.yihr.org/index.php

86 ADDITIONAL INFORMATION: • All ICTY Annual Reports to the UN General Assembly and to the UN Security Council, from 1994 to 2009, available at http://www.icty.org/tabs/14/1 , viewed 24 June 2009, 22:00. • Mitchell, Laurence, “Bradt, Serbia. the Bradt Travel Guide” (July 2007) • Documentaries about the ICTY and the conflict of the former Yugoslvia: o Justice Unseen / Slijepa pravda by Refik Hodži ć325 o Reportages van NOVA o Documentaire en radiodiscussies op de site van Tegenlicht o Documentary “Carla's List" o National Geographic Documentary, Savage Evidence o BBC Documentary Death of Yugoslavia o Fall of Milosevic (3-part documentary) • Movies about the ICTY and the conflict of the former Yugoslvia: o The Hunting Party o Hunt fore Justice. The Louise Arbour Story o Storm o Welcome to Sarajevo o Beautiful people • International tribunal for the Prosecution of Persons Responsible for the Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. “The path to The Hague” Selected documents on the origins of the ICTY. (The Netherlands 2001) • International Criminal Tribunal for the former Yugoslavia, “Outreach Programme. Proposal for Contributions to the UN Voluntary Fund for the continued operation in 2003 of the ICTY Outreach Programme” (The Hague 15 August 2002) • 1994-2004. a UNique decade/une decennie UNique. (ICTY’s Registry publication 2004) • General information booklet • Case Information Sheets

ADDITIONAL INFORMATION FROM INTERNET: Scharf, Michael and Kang, Ahran, “Errors and Missteps: Key lessons the Iraqi Special Tribunal can learn from the ICTR, ICTY and SCSL”, Cornel International Law (2005), at: http://www.law.case.edu/saddamtrial/documents/Scharf_Article_on_the_IST.pdf , viewed 25 June 2009, 11:00. Hagan, Margaret Darin (2004), “Facing the Past in Post-Milosevic Serbia: The Public Relations of Post-Conflict Human Rights Activism”, at: http://www.ceu.hu/nation/theses/hagan0304.pdf ; viewed 25 June 2009, 11:00. Cibelli, Kristen and Guberek, Tamy (2000), “Justice Unknown, Justice Unsatisfied? Bosnian NGOs Speak about the International Criminal Tribunal for the Former Yugoslavia”, at: http://www.hrdag.org/resources/publications/justicereport.pdf , viewed 25 June 2009, 11:00. Humanitarian Law Centre, Human Rights in the former Yugoslavia, at: http://www.hlc- rdc.org/stranice/14.en.html , viewed 25 June 2009, 11:00.

325 Justice Unseen / Slijepa pravda, by Aldin Arnautovi ć and Refik Hodži ć (Bosnia and Herzegovina 2004) 59 minutes avaialble at [email protected], see: http://www.oneworld.cz/ow/2005/en/pop.php?id=8156 , viewed 25 June 2009, 10:30.

87 Annex 1: Tables

Table 1: “Outreach Activities 1999-2009” Outreach Visit to the ICTY ICTY reps to the Local Outreach Total activities activities in The Hague region activities 1999 2 0 0 2 2000 4 2 11 17 2001 11 6 58 75 2002 14 1 47 62 2003 19 1 30 50 2004 10 3 38 51 2005 14 3 66 326 83 2006 10 2 31 43 2007 327 15 5 61 81 2008 328 9 0 18 27 2009 329 8 0 13 21

326 It should be noted that the local NGO Youth Initiative for Human Rights organised in 2005, 14 activities with similar objectives as the local Outreach office that have been inserted into this chart. 327 Although Outreach refers to several visits of the Advisory Committee on the Archives (ACA) as an outreach activity have I not inserted these visits in the charts. This is because the visits of the ACA served more as a fact- finding mission in preparation for the decision about the future of the ICTY archives, than as an Outreach activity. I believe that these visits would inflate the Outreach-activities figures. For more information about these visits, see in the "ICTY Outreach Activities - 2007" the visits of 19-20 December 2007 in Belgrade, Serbia, 17- 18 December, Zagreb, Croatia, 11 December, Skopje, Macedonia, 10 December, Pristina, Kosovo and 22 November, Sarajevo, Bosnia and Herzegovina, at: http://www.icty.org/sid/10128 , viewed 5 June 2009, 17:30. 328 As the figures of 2008 are only available as of August it should be noted that the 2008 statistics are not complete. See also "ICTY Outreach Activities - 2008", at http://www.icty.org/sid/8938 , viewed 9 July 2009, 10:30. 329 It should also be noted that this chart dates to 23 June 2009. Thus the 2009 figures are incomplete. By: Erik Pronk Tutor: Bob de Graaff Student number: 0162205 Study: International Relations in Historical Perspective

Table 2: “Outreach activities 1999-2009 through the former Yugoslavia” Outreach FRY B-H Croatia Kosovo Macedonia Slovenia activities 1999 1 1 0 0 0 0 2000 2 4 10 1 0 0 2001 33 15 19 4 2 0 2002 26 14 10 3 3 2 2003 23 14 5 4 2 1 2004 330 26 10 10 3 0 0 2005 331 43 31 6 1 0 0 2006 5 28 3 4 0 0 2007 332 13 32 10 11 8 2 2008 11 Serbia, 1 7 2 3 1 1 Montenegro 2009 4 6 5 0 0 1

330 The figures of 2004 appear not to be similar because of a conference in January 2004 in Budapest, Hungary that outreach organised (the "International conference on facing the past") and the visit of the Canadian Ambassador to Croatia, Stephanie Beck, to the ICTY. 331 Two Outreach activities not been calculated. One Outreach activity has not been inserted in the chart about the communities of the region because it was for all communities of the region, (it was the visit of 2 November 2005 were students from all over the former Yugoslavia visited the ICTY). And the presentation of the ICTY- Outreach at the Swedish human rights gathering in of 16 November 2005 happened in Stockholm, Sweden. 332 The figures of the two charts appear not to correspond identically because in 2007 there were three Outreach activities that could not be considered as belonging to one of the countries of the former Yugoslavia. These activities were (i) a visit on 19 February 2007 of 24 military officers from Albania, Croatia, Bosnia, FYROM, Serbia and Montenegro that paid a visit to the ICTY, (ii) the Serbian Outreach representative visited between 5- 19 April 2007 Michigan and New York in the US, were the representative promoted the ICTY “e-internship”, and gave lectures about the ICTY to students of the University of Michigan and New York Law School (iii) and the celebration of The Hague as City of Peace between 27 April - 01 May 2007, were the ICTY held a stand at the exhibition and staff members were present through the exhibition to answer questions from visitors on the Tribunal’s work.

89

Table 3: “ICTY budget and staff” Year Staff Budget (in millions $) 1993 0 0 1994 101 10.80 1995 197 25.30 1996 298 35.43 1997 386 48.58 1998 682 64.77 1999 822 94.10 2000 1144 95.94 2001 1211 96.44 2002 1366 111.58 2003 1365 111.58 2004 333 1246 135.92 2005 135.92 2006 138.24 2007 138.24 2008 171.12 2009 1118 171.12

333 All figures up to 2004 are from “1994-2004, a UNique decade”. See also "The Cost of Justice", at: http://www.icty.org/sid/325 , viewed 24 June 2009, 17:30.

90 Table 4: “ICTY referral cases” 13 referred to national jurisdiction in 8 cases 334 Gojko Jankovi ć Referral Bench decided on 22 July 2005 to refer the case to Bosnia-Herzegovina. (IT-96-23/2) Appeals Chamber affirmed on 15 November 2005 the referral. Jankovi ć was transferred on 8 December 2005. Judgment sentenced Jankovi ć on 16 February 2007 to 34 years imprisonment. The Appeals Judgment of 19 November 2007 upheld the sentence. Radovan Stankovi ć Referral Bench decided on 17 May 2005 to refer the case to Bosnia-Herzegovina. (IT-96-23/2) Appeals Chamber of 1 September 2005 affirmed the referral. Stankovi ć was transferred on 29 September 2005. Judgement sentenced Stankovi ć on 14 November 2006 to 16 years imprisonment. Appeals Judgement inceased the sentenced on 17 April 2007 to 20 years. Savo Todovi ć and Referral Bench decided on 8 July 2005 to refer the case to Bosnia-Herzegovina. Mitar Raševi ć Appeals Chamber remitted the case to the Referral Bench pending a decision of (IT-97-25/1) the Trial Chamber on the operative indictment. On 31 May 2006, the Referral Bench Decision re-ordered referral to Bosnia and Herzegovina. Decision on Appeal rendered 4 September 2006, confirming referral of the case to Bosnia and Herzegovina. Accused transferred on 3 October 2006. Paško Ljubi čić Referral Bench decision rendered on 12 April 2006, referring case to Bosnia and (IT-00-41) Herzegovina. Appeals Chamber decision rendered 4 July 2006, affirming referral to Bosnia and Herzegovina. Accused transferred on 22 September 2006. Vladimir Kova čevi ć Referral Benchdecision rendered on 17 November 2006, referring the case to the (IT-01-42/2) Republic of Serbia. Appeals Chamber Decision of 28 March 2007 dismissed the appeal against the Decision of the Referral Bench entirely. Željko Mejaki ć, Mom čilo Referral Bench decision rendered on 20 July 2005, referring case to Bosnia and Gruban, Duško Kneževi ć, Herzegovina. Appeals Chamber Decision rendered on 7 April 2006, affirming and Dušan Fuštar referral of case to Bosnia and Herzegovina. Accused transferred on 9 May 2006. (IT-02-65) Rahim Ademi and Referral Bench decision on 14 September 2005 referring case to Croatia. Case files Mirko Norac transferred on 1 November 2005. On 30 May 2008, the Zagreb County Court (IT-04-78) acquitted Rahim Ademi and convicted Mirko Norac, who was sentenced to 7 years’ imprisonment. Appeals proceedings are on-going. Milorad Trbi ć Referral Bench decision on 27 April 2007 referring case to Bosnia and (IT-05-88/1) Herzegovina. Accused transferred on 11 June 2007.

334 See “Key figures of ICTY cases” as of 28 May 2009, at http://www.icty.org/sections/TheCases/KeyFigures , viewed 2 June 2009, 16:30.

91

Annex 2: Outreach Activities website 1999-2008 335

335 See “Outreach program MKSJ-a | ICTY Outreach Programme”, at: http://www.un.org/icty/bhs/outreach/events.htm , viewed 16 July 2009, 11:45.

92

Annex 3: Statute of the ICTY

93 Annex 4: Outreach Activities 1999-2009

94

Annex 5: The Rules of Procedure and Evidence of the ICTY

95