The Politics of Order Dissertation

The Politics of Order A critical theorization of selectivity in relation to ICTY’s indictment policy practice

Dissertation

zur Erlangung des Grades eines Doktor der Rechte im Fachbereich Rechtswissenschaft der Albert-Ludwigs-Universität Freiburg im Breisgau

S.M. Bedoya Sánchez

Erstgutachter: Prof. Dr. Hans-Jörg Albrecht Zweitgutachter: Prof. Dr. Ulrich Sieber Dekan: Prof. Dr. Matthias Jestaedt Ort: Freiburg im Breisgau Mündliche Prüfung: 02. und 03. Februar 2016 Erscheinungsjahr: 2016

Hic Sunt Dracones

CONTENTS

I. Aim, method, disciplinary orientations and outline of the study ...... 14 1.1 Introduction ...... 14 1.2 Object of the research ...... 19 1.3 Research questions ...... 19 1.4 Disciplinary orientations of this research ...... 20 1.4.1 Critical International Legal Theory (CILT) ...... 20 1.4.1.1 Background ...... 20 1.4.1.2 The new stream ...... 22 (1) Conceptual bases ...... 26 (2) The notion of critique ...... 28 a) Internal incoherence ...... 30 b) Constrained structure ...... 32 I) Liberal ideology ...... 32 II) International legal argument ...... 34 c) Radical indeterminacy ...... 37 1.4.2 Definition of critique for this study ...... 40 1.4.3 Critical approaches to international criminal law (CAICL) ...... 45 1.4.3.1 Liberal legalism in ICL ...... 45 1.4.3.2 Rejection of the ‘domestic analogy’ ...... 49 1.4.3.3 Contribution of CAICL perspective ...... 53 1.5 Research concepts ...... 54 1.5.1 Non-legality and soft-law ...... 54 1.5.2 Indictment policy ...... 57 1.5.3 Selectivity and non-legality ...... 60 1.6 Methodology ...... 62 1.6.1 Sources ...... 64 1.6.2 Quasi-ethnography ...... 64 1.7 Outline of the thesis ...... 65 II. Background: The situation in the Former Yugoslavia and the ICTY ...... 67 2.1 Introduction ...... 67 2.2 The Yugoslav wars ...... 68 2.2.1 Slovenia and Croatia ...... 72

2.2.2 Bosnia and Herzegovina ...... 75 2.2.3 Kosovo ...... 81 2.3 History of ICTY’s creation ...... 84 2.3.1 The 1992 Commission of Experts ...... 84 2.3.2 UN Security Council Resolutions 808 and 827 ...... 87 2.4 Conclusions ...... 91 III. The formulation of indictment policies in the OTP’s different tenures ...... 93 3.1 Introduction ...... 93 3.2 Richard Goldstone (August 1994 – September 1996) ...... 94 3.2.1 Introduction ...... 94 3.2.2 Contextual factors ...... 96 3.2.2.1 Continuation of wars ...... 96 3.2.2.2 Ambivalence of the Security Council and the “international community” ...... 99 3.2.2.3 Lack of resources ...... 105 3.2.3 Formal considerations ...... 107 3.3.3.1Substantive goals and initial policy criteria ...... 107 3.2.3.2 The 1995 criteria ...... 108 3.2.4 Policy decisions ...... 111 3.2.4.1 Dictated by circumstance ...... 113 3.2.4.2 Public image ...... 114 3.2.4.3 The pyramidal strategy ...... 114 3.3 Louise Arbour (October 1996 – September 1999) ...... 116 3.3.1 Introduction ...... 116 3.3.2 Contextual factors ...... 118 3.3.2.1 Problems of cooperation and compliance ...... 118 3.3.2.2 The Kosovo Crisis ...... 120 3.3.2.3 NATO intervention ...... 123 3.3.2.4 Limited resources ...... 125 3.3.3 Formal considerations: Substantive goals ...... 127 3.3.4 Policy decisions ...... 129 3.3.4.1 Sealed indictments ...... 129 3.3.4.2 The 1998 review: withdrawal of indictments ...... 130 3.3.4.3 Indicting Milošević ...... 131 3.3.4.4 The offence strategy ...... 132 3.4 Carla Del Ponte (September 1999 – December 2007) ...... 133 3.4.1 Introduction ...... 133

3.4.2 Contextual factors ...... 135 3.4.2.1 International actors ...... 135 3.4.2.2 Regional actors ...... 138 (1) Serbia ...... 138 (2) Croatia ...... 140 (3) Kosovo ...... 144 3.4.2.3 Completion strategy ...... 145 3.4.2.4 Insufficient funds ...... 147 3.4.3 Formal considerations ...... 149 3.4.3.1 Substantive goals ...... 149 3.4.3.2 Policy criteria ...... 152 3.4.4 Policy decisions ...... 153 3.4.4.1 The “indict-all-parties” strategy ...... 156 3.5 Conclusions ...... 158 IV. Selectivity and non-legality patterns in indictment policy ...... 160 4.1 Introduction ...... 160 4.2 Indictment policy from the outside ...... 161 4.2.1 Economic regulation ...... 161 4.2.1.1 Fifth Committee and the Advisory Committee on Administrative and Budgetary Questions (ACABQ) ...... 161 1) Goldstone: Indictment ‘productivity’ ...... 165 2) Arbour: Introducing performance indicators ...... 168 3) Del Ponte: Efficiency intervention ...... 170 4.2.1.2 Donations and voluntary contributions ...... 173 4.2.2 Reconfiguration of the indictment policy I ...... 177 4.2.2.1 Bureaucratic frameworks ...... 177 4.2.2.2 Performance indicators ...... 179 1) Conceptualization ...... 180 2) Production ...... 181 3) Use ...... 182 4) Effect and impact ...... 182 4.2.3 Peace building regulation: United Nations Interim Administration Mission in Kosovo (UNMIK) ...... 183 4.2.3.1 Solidify bureaucracy ...... 184 4.2.3.2 Legislative soft-law ...... 186 4.2.3.3 UNMIK vs. The Office of the Prosecutor ...... 189 4.2.4 Reconfiguration of the indictment policy II: Soft-law ...... 193 4.3 Conclusions ...... 197

V. Selectivity and non-legality ...... 199 5.1 Introduction ...... 199 5.2. International legal argument ...... 200 5.2.1 Elements ...... 200 5.2.1.1 Sovereignty ...... 200 5.2.1.2 The notions of rule and exception ...... 202 5.3 International legal argument: The critical standpoint ...... 206 5.4 Selectivity: practice and systemic level ...... 209 5.4.1 The practice-level or decision-making stage: regime definition . 210 5.4.2 The systemic-level or regime friction: regime interaction ...... 212 5.5 Radical indeterminacy and non-legality in selectivity ...... 213 5.6 Conclusions ...... 214 VI. Final conclusions and outlook: Non-legality as a point of departure ...... 216 6.1 Diplomacy’s selectivity of ‘in’ and ‘out’ ...... 218 6.2 Displacement of authority ...... 221 6.3 Soft-law policy and legal order: Insiders and outsiders ...... 223 6.4 Indictment policy and media legitimation ...... 225

Jurisprudence ...... 229 Bibliography ...... 232

ABBREVIATIONS

AAK: The Alliance for the Future of Kosovo (Aleanca për Ardhmërinë e Kosovës) ACABQ: Advisory Committee on Administrative and Budgetary Questions AI: Amnesty International Art: Article CAH: Crimes Against Humanity CFSP: Common Foreign and security Policy Chap: Chapter CAICL: Critical Approaches to International Criminal Law CIA: United States Central Intelligence Agency CILT: Critical International Legal Theory CS: Completion Strategy CSDP: Common Security and Defense Policy DOS: Democratic Opposition of Serbia EC: European Commission ECCC: Extraordinary Chambers in the Courts of Cambodia EEAS: European External Action Service EU: European Union EUEP: European Union Enlargement Policy FATU: From Apology to Utopia. The Structure of International Legal Argument FIDH: International Federation for Human Rights FYROM: Former Yugoslav Republic of Macedonia

GA: United Nations General Assembly HDZ: Croatian Democratic Union (Hrvatska demokratska zajednica) HRW: Human Rights Watch HSLP: Croatian Social Liberal Party (Hrvatska socijalno liberalna stranka) HV: Croatian Army (Hrvatska Vojska)

HVO: Croatian Defense Council

ICC: International Criminal Court ICL: International Criminal Law ICTs: International Criminal Tribunals ICLT: International Critical Legal Theory ICRC: International Committee of the Red Cross

ICTR: International Criminal Tribunal for Rwanda ICTY: International Criminal Tribunal for the Former Yugoslavia ID: Investigation Division IHL: International Humanitarian Law ILT: International Legal Theory ILW: International Legal Work IMF: International Monetary Fund IMT: International Military Tribunal of Nüremberg IMTFE: International Military Tribunal for the Far East IPTF: International Police Task Force ITN: Independent Television Network JCE: Joint Criminal Enterprise JNA: Yugoslav National Army

KFOR: NATO-led Kosovo Force KLA: Kosovo Liberation Army NATO: The North Atlantic Treaty Organization NLA: National Liberation Army OIOS: Office of Internal Oversight Services OSCE: Organization for Security and Cooperation in Europe OTP: Office of the Prosecutor Para: Paragraph PICT: Project on International Courts and Tribunals PIS: ICTY Press and Information Service PISG: Provisional institutions of self-government RPE: ICTY Rules of Procedure and Evidence RPGA: Rules of Procedure of the General Assembly (United Nations) RS: Republika Srpska RSK: Republika Srpska Krajina SDP: The Social Democratic Party of Croatia (Socijaldemokratska partija Hrvatske) SDS: Serbian Democratic Party (Srpska Demokratska Stranka) SFRY: Socialist Federal Republic of Yugoslavia SC: Security Council SCSL: Special Court for Sierra Leone UÇK: Kosovo Liberaton Army (Ushtria Çlirimtare e Kosovës) UN: United Nations UNHCR: United Nations High Commissioner for Refugees UNMIK: United Nations Interim Administration Mission in Kosovo UNPROFOR: United Nations Protection Force 12

UNTAES: United Nations Transitional Authority in Eastern Slavonia U.S: United States of America WFP: World Food Programme

I. Aim, method, disciplinary orientations and outline of the study

1.1 Introduction

In international criminal law literature, the importance of selectivity has been frequently acknowledged although the notion itself is often diffusively discussed. The term selectivity is also considered under the notion of selective prosecutions, where it is habitually cited, and yet its reference encompasses a variety of conceptual meanings. For instance, it has been described by Robert Cryer as an obstacle for the adequate application of the ICL rule of law. By Cryer’s account, selectivity is present in both the “relation to the acts that the international community is prepared to characterize as … crimes” and in relation to the atrocities is “prepared to collectively prosecute”.1

Taking a historical perspective, William Schabas argues that the decision by international actors, where to intervene through criminal adjudication, in contexts such as Yugoslavia, is in itself inscrutable because it is as a manifestation of a political compromise among states and therefore a policy choice. The reduced number of defendants targeted at the international level is the result of realistic considerations on which ICT’s based their work.2 Élise Le Gall describes the notion of selective prosecutions as an anomaly of the principle of ‘l’opportunite des poursuites’. 3 Kai Ambos and Ignaz Stegmiller assess it as a dysfunction of prosecutorial coherence damaging legitimacy; consequently, in the view of both authors “[o]nly if prosecutorial selection is

1 Quoting McCormack, Robert Cryer, “Prosecuting International Crimes. Selectivity in the International Criminal Law Regime”, Cambridge Studies in International and Comparative Law (Cambridge/ New York: Cambridge University Press, 2005), 191. Additionally, Robert Cryer, “The Boundaries of Liability in International Criminal Law, or ‘Selectivity by Stealth,’” Journal of Conflict and Security Law 6, no. 1 (2001): 3–31. Timothy L. H. McCormack, “Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law,” Albany Law Review 60 (1997 1996): 681.

2 William A. Schabas, “Victor’s Justice: Selecting ‘Situations’ at the International Criminal Court,” The John Marshall Review 43 (2010 2009): 535–52. Further, James Meernik, “Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal For The Former Yugoslavia,” Journal of Conflict Resolution 47, no. 2 (April 1, 2003): 145.

3 Élise Le Gall, “L’opportunité des poursuites du procureur international : du pouvoir arbitraire au contrôle insuffisant,” Revue internationale de droit pénal Vol. 84, no. 3 (April 24, 2014): 495–514.

based on well-defined criteria, the Prosecutor’s decisions will find support and gain legitimacy … The OTP should therefore foster efforts to develop comprehensible guidelines.”4

Similarly, using the term “selective prosecutions”, Hassan Jallow, Aleksander Greenawalt and Luc Côté, phrase their criticism, focusing on the abuse of discretion and impartiality.5 However, it is recognized by Côté that scarce and judicial resources obligate “some selectivity”. In order to operate in the international scene “individual criminal justice has to select and isolate a handful of individuals ‘most responsible’ for crimes committed by a multitude of persons”.6 Mark Drumbl considered that the operation of ICL inescapably causes a “retributive shortfall”. To that degree, “Selectivity is inevitable in the operation of law … Selection decisions often are discretionary in nature … However, in other cases, the exercise of prosecutorial discretion is contingent on variables … that have little to do with the inherent gravity of the alleged crime” as such, selectivity represents a challenge to international criminal law.7 For other ICL commentators, such as Rone Steinke, selectivity has a broader pervasiveness, because it limits the representation of historical truth that ICL is tasked to develop. Therefore “the problem” with selectivity is connected to the wider context and the external mandates of international criminal justice.

4 Kai Ambos and Ignaz Stegmiller, “Prosecuting International Crimes at the International Criminal Court: Is There a Coherent and Comprehensive Prosecution Strategy?,” Crime, Law and Social Change 58, no. 4 (2012): 391–413. 5 Hassan B. Jallow, “Prosecutorial Discretion and International Criminal Justice,” Journal of International Criminal Justice 3 (2005): 145–61. Luc Côté, “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” Journal of International Criminal Justice 3, no. 1 (March 1, 2005): 162–86. Luc Côté, “International Criminal Justice: Tightening up the Rules of the Game,” International Review of the Red Cross 88, no. 861 (2006): 133–44. Alexander K. A. Greenawalt, “Justice without Politics? Prosecutorial Discretion and the International Criminal Court,” New York University Journal of International Law and Politics 39 (March 2007): 583–673. 6 Luc Côté, “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” Journal of International Criminal Justice 3, no. 1 (March 1, 2005): 174–175. 7 Mark A. Drumbl, “Atrocity, Punishment and International Law” (Cambridge/ New York: Cambridge University Press, 2007), 151–154.

“Ultimately, the politically interesting question at a court of international criminal justice is whose views decide”.8 Wolfgang Kaleck commenting on vertical and horizontal forms of selectivity (where the former refers to decisions to prosecute only some situations in a historical overview and the latter being individuals singled out for prosecution) termed the occurrence as one of the biggest weakness of ICL “predominantly wielded against weak, fallen and toppled autocrats and military leaders”. ICL is therefore biased in favouring Western States, and to that extent, selectivity is not just a legal, but more importantly a political problem.9 Under these considerations, selectivity was evaluated as causing a ‘space’ lacking adequate prosecution. Using John’s terminology, this ‘lack of prosecution’ vis-á- vis ICL was a “space from which the authority of the law gets spoken or performed, albeit often in a register of disavowal or differentiation”.10

Inside and outside

In the light of these concerns, I began to think through the conditions by which selectivity was portrayed as a problem within ICL and yet simultaneously a phenomenon located outside the domains of ICL. On one hand, selectivity was described as “unavoidable” or “part of” or “necessary” in order to have criminal prosecutions at the international level. From this viewpoint, some selectivity was required in view of the immensity of the task faced by the international criminal tribunals. But how much selectivity shall ICT’s endorse? Perhaps, enough to allow the ICL system to work, but not enough to damage the legitimacy of ICL. The middle ground suffices.

8 Ronen Steinke, “Politics of International Criminal Justice” (Oxford ; Portland, Or: Hart Publishing, 2012), 12–15. International criminal justice is considered to have a variety of mixed substantive goals, see for example, Albin Eser, “Procedural Structure and Features of International Criminal Justice: Lessons from the ICTY,” in The Legacy of the International Criminal Tribunal for the Former Yugoslavia, ed. Bert Swart, Alexander Zahar, and Göran Sluiter (Oxford: Oxford University Press, 2011), 109–114. 9 Wolfgang Kaleck, “Double Standards: International Criminal Law and the West” (Torkel Opsahl Academic Epublisher, 2015), 2. Previously published as Wolfgang Kaleck, “Mit zweierlei Maß: Der Westen und das Völkerstrafrecht,” 1. (Berlin: Verlag Klaus Wagenbach, 2012). 10 Fleur Johns, “Non-Legality in International Law: Unruly Law,” 1st edition (Cambridge ; New York: Cambridge University Press, 2013), 69.

In the context of ad hoc courts, such as the ICTY, the solution to selectivity would then appear in two fronts: adequate use of discretion and a transparent regulation of who to target, through guidelines, standards or protocols for prosecution. In this diagnostic, the ‘space’ caused by selectivity was represented as requiring the expansion of ICL’s regulatory frames. On the other hand, selectivity was also perceived as being “outside”, as it was presumably a condition originating from the lack of adequate political support and cooperation among states, the restriction of funding, the incapacity of the OTP, and courts in general to enforce their decisions upon those mandated to materialize their work. Selectivity was therefore the result of external political considerations, the outcome – to a great degree – of realpolitik.11 However, conceiving selectivity through an inside/outside division limited the capacity to see the many ways in which external actors, including the “international community”, had been deeply engaged in shaping and influencing day-to-day OTP decisions over indictment policy and therefore the lack of prosecutions. The location of selectivity ‘outside’ adopts a particular focus whereby ICL is conceived as affected by selectivity and yet structured around selectivity. What this overlooks is the fact that selectivity is also created through ICL on routine practices. In that regard, the lack of prosecutions caused by selectivity is also planned. Using the analogy of Susan Marks – in this context, planned “does not denote intended or deliberately” although that is sometimes involved, but rather, it indicates a situation “that belongs with the logic” of ICL structural arrangements.12 As rightly noted by Hagan, Levi and Ferrales:

11 See for example the notion of realpolitik used by Ambos in reference to international criminal tribunals. Kai Ambos, “Enjuiciamiento de Crímenes Internacionales En El Nivel Nacional E Internacional: Entre Justicia Y Realpolitik,” Politica Criminal. Revista Electrónica Semestral de Políticas Públicas En Materias Penales, no. 4 (August 9, 2009): 1–16. Gideon Boas, “What Is International Criminal Justice?,” in International Criminal Justice: Legitimacy and Coherence, ed. William A. Schabas et al. (Cheltenham, UK ; Northampton, MA, USA: Edward Elgar Publishing Ltd, 2012), 8. William A. Schabas, “The Short Arm of International Criminal Law,” in The Ashgate Research Companion to International Criminal Law, written by William A. Schabas, 2013 Edition, ed. William A. Schabas, Yvonne McDermott, and Niamh Hayes (Farnham/Burlington: Ashgate, 2013), 387–405. 12 Susan Marks, “Human Rights and Root Causes,” The Modern Law Review 74, no. 1 (January 1, 2011): 75. Grietje Baars, “Making ICL History. On the Need to Move Beyond Pre-Fab Critiques of ICL,” in Critical Approaches to International Criminal Law: An Introduction, ed. Christine Schwöbel (New York: Routledge, 2014), 208.

In the domestic context, Western criminal courts are typically organized into judicial, defense and prosecutorial divisions that are linked to organized policing agencies, possibly so that bureaucratic imperatives can forestall external political influences. In contrast, international criminal courts have an overtly political quality to even the most routine and essential legal tasks. These courts lack well developed links to policing agencies, and therefore require proactive political liaisons, working on the international stage and through sovereign states. 13

The fact that ICTs, such as the ICTY, function within the realm of politics and power relations, makes these institutions not only political14 but, more importantly, explicitly dependent. By approaching the manner in which the OTP carried out its day-to-day activities, it became manifest how extensively it relied on a variety of external frameworks, actors, decision-making processes, agencies, bureaucratic schemes and international structures, that were not considered part of ICL and subsequently were not examined. It seemed to me that these externalities did not operate peripherally to ICL, but on the contrary, they shaped ICL and were therefore fully incorporated. The point of departure of this study is to show what selectivity would look like from the ‘outside’, i.e. if evaluated from the repertoire of practices not defined as ICL but intertwined with selectivity, bringing into consideration the notion of non- legality.15

13 John Hagan, Ron Levi, and Gabrielle Ferrales, “Swaying the Hand of Justice: The Internal and External Dynamics of Regime Change at the International Criminal Tribunal for the Former Yugoslavia,” Law and Social Inquiry 31 (2006): 590. 14 Markus-Michael Müller, “Public Security in the Negotiated State. Policing in Latin America and Beyond” (New York: Palgrave Macmillan, 2012), chap. introduction. 15 The term ‘lack of prosecution’ refers in this study exclusively to not issuing indictments. For the description of non-legality and soft-law, refer to section 1.5.1

1.2 Object of the research

The aim of this research is to provide a critical international legal theory (CILT) account on the notion of selectivity from the perspective of non-legality. This evaluation will be centred on the OTP’s indictment policy practices, developed at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Concerning the scope of the study, there are three considerations that need to be pointed out. Firstly, the OTP period under scrutiny corresponds to the terms of former chief prosecutors: Richard Goldstone began his work in July 1994, ending his tenure in October 1996; Louise Arbour held the position from October 1996 to September 1999; followed by Carla Del Ponte, who was in office for two consecutive terms, from September 1999 to December 2007. The last OTP indictments were issued during Del Ponte’s tenure. Therefore, I am setting aside the term of Serge Bremmertz, who assumed his duties in January 2008. Secondly, as discussed further under the headline research concepts, indictment policy is not equivalent to prosecutorial policy. In terms of temporality, the study focuses on policy decisions that were manifested prior to and during the issuing of indictments and before the confirmation or approval of the Pre-Trial Chamber. This does not imply that issues concerning selectivity do not take place after an indictment is issued and confirmed by the pre-trial judge, nor does it suggest that this is the only area where the topic of selectivity can be approached. In revising this time frame, I undertake two goals. I highlight the role and actions of OTP prosecutors concerning indictment policy, and furthermore, I shed light onto a variety of non-legality practices, without subscribing to substantive or procedural ICL considerations, thereby engaging in a proper ICL critique as outlined below. From the point of view of critical legal theory, the goal is not to advance substantive or procedural ICL dogmatic, but to reflect on how and in which way selectivity is created through other normative non-legality codes (political, financial, administrative, expediential, from the mass media, etc.). Thirdly, this study is situated within the critical tradition of international law. Therefore, the reading of selectivity presented here is primarily although not exclusively informed by international critical legal scholarship. Other disciplinary sources are discussed under the subsection of methodology.

1.3 Research questions

The thesis encompasses two research questions; firstly, how do external (non- legality) considerations intervene in the production of selectivity through the

formulation of indictment policy, and secondly, how can we understand selectivity from these non-legality frameworks?

1.4 Disciplinary orientations of this research

Below I will provide an overview of the disciplinary and theoretical orientations of the study. As this research draws on the critical perspective of international legal theory, some parts have been devoted to explaining the specific understanding of what critique means within ICL. This will include a reconceptualization of international law from the perspective of CILT, also named ‘new stream’ or radical international law scholarship. After discussing the background, the new stream will be assessed in terms of four fundamental characteristics: the contradiction in liberal legal thinking, the description of international law as a set of specialized languages, and the implications for legal practices, the linguistic and ontological indeterminacy of international law and the newly established critical approaches to international criminal law.

1.4.1 Critical International Legal Theory (CILT)

1.4.1.1 Background

The incorporation of critical legal thinking into public international law started in the 1980s. At the beginning of the 1970s, the discipline oscillated between competing accounts of “neo-naturalism” and “neo-positivism”, and additionally towards a strong drive leading to what was known as “anti-formalism” and modern pragmatism.16 While naturalist perspectives situated the binding force of international law in nature, approaching law as a normative theology, the positivists consider that the force of law is derived exclusively from the historically specific sovereign consent of states – this was named normative-deontology. 17

16This process was part of a broader movement in contemporary legal theory known as Critical Legal Studies. Nigel Purvis, “Critical Legal Studies in Public International Law,” Harvard International Law Journal 32 (1991): 89. Additionally, David Kennedy, “Critical Theory, Structuralism and Contemporary Legal Scholarship,” New England Law Review 21, no. 2 (1986 1985): 209–89.For a brief summary of contemporary uses of naturalism and positivism in public international law, see Jan Klabbers, “International Law” (New York: Cambridge University Press, 2013), 12–13. 17 Purvis, “Critical Legal Studies in Public International Law,” 82. Additionally, Anthony D’Amato, “What ‘Counts’ as Law?,” Faculty Working Papers, January 1, 1982, http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/132. For an overview of 20

Likewise, during the 1950s and 1960s, international law became infused with pragmatic considerations that linked law with international relations.18 International law was then conceived of as a group of techniques primarily oriented towards the objectives of diplomacy in international affairs and politics.19 The pragmatic interpretation emphasized a conceptualization of public international law as fundamentally anti-formal, because the law was seen as instrumental to support international institutions and the legal argument was therefore merely contextual.20 As such, legal education and scholarly debates within the discipline at that time stressed “institutional process, functional progress, or rule centred doctrinal specificity, while denied the relevance of coherent abstraction”.21 This context gave rise to two types of pragmatic accounts in legal theory, unreflective pragmatism and conceptual pragmatism. Unreflective pragmatism referred to subject-specific doctrine to avoid the problems of theoretical conceptualizations in legal theory. For this reason, questions concerning international law’s binding force were framed in terms of the rejection of universal and coherent accounts concerning legitimacy and were particularly focused on institutional and legal historical perspectives. The rejection of the use of abstraction resulted in its re-appearance in what was named ‘conceptual pragmatism’, that is to say, the use of doctrinal analysis to mediate (and transcend) positivism and naturalism using abstraction to evaluate international processes and institutions.22 However, conceptual pragmatism resulted in the revitalization of neo-positivism and neo-naturalist positions that locked ILT into the same predicament concerning irreconcilable positions that dealt with the nature and origins of international law. Either described as nature-based or consent given, the result was the reduction of earlier thinkers David Kennedy, “Primitive Legal Scholarship,” Harvard International Law Journal 27, no. 1 (1986): 1–98. 18 Martti Koskenniemi, “El discreto civilizador de naciones : el auge y la caída del derecho internacional”, trans. Natalia Zaragoza García, 1st ed. (Buenos Aires; Madrid: Ediciones Ciudad Argentina, 2005), chap. VI. 19 Ibid., 457. 20 Martti Koskenniemi, “What Is International Law For?,” in International Law, ed. Malcom D. Evans, 2nd ed. (Oxford/New York: Oxford University Press, 2006), 39. 21 Purvis, “Critical Legal Studies in Public International Law,” 83. 22 Ibid., 84. Consequently four important schools of thought in ILT were developed: Rule- approach, Policy approach, Scepticism, and Idealism. For a summary, see Martti Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument” (Cambridge/New York: Cambridge University Press, 2005), chap. 3.

international law to a situation of marginality among other legal disciplines23 which led to the wide presumption of the simplicity of its rules and the bureaucratization of its canon.24

1.4.1.2 The new stream In this context, a new stream of radical international law scholarship was born against the different schools of pragmatism and the reduction of the field to either naturalist or positivist trends, opening up international legal theory to different orientations tagged under the name of the new stream of international legal theory.25 From its very beginning the ‘new stream’ stood in opposition to ‘mainstream’ scholarship, with three clear cut confrontational angles: conceptual, methodological and strategic.26 Broadly speaking, new stream authors argued against a complacent understanding of how to conceive of cultures and the difference between them, especially regarding debates of self-determination in international law and cultural relativism.27In this sense, new stream writers claimed “the way in which culture is defined determines the legal rule which ensues, and that the meaning of what is culture is thus primary to the doctrines which have evolved”.28 Therefore, mainstream literature operates to include certain domains of ideas and people while at the same time excluding others, thus providing westernized notions of different cultural groups or partialized accounts of those ruled ‘under’ western social, political or economic organizations that dominate legal

23 Purvis, “Critical Legal Studies in Public International Law.” 24 David Kennedy, “A New Stream of International Law Scholarship,” Wisconsin International Law Journal 7, no. 1 (1988): 6. 25 A key text on this regard was written by David Kennedy, “Theses about International Law Discourse,” German Yearbook of International Law 23 (1980): 353–91. 26 Deborah Z. Cass, “Navigating the New Stream: Recent Critical Scholarship in International Law,” in The Nature of International Law, ed. Gerry Simpson (Surrey, UK: Ashgate, 2002), 344. 27 For a good contemporary example see Miia Halme, “Review Article: Rights and Culture - Beyond Relativism,” PoLAR: Political and Legal Anthropology Review 28 (2005): 307. 28 Cass, “Navigating the New Stream,” 344.

development29 among these types of analyses are the works of scholars proposing that international law does not simply rely on culture because international law is a form of culture itself.30 A second conceptual problem relates to the perception of mainstream debates concerning the uses and role of history and its relationship with the doctrine of sovereignty. Mainstream international legal history is “self-servingly repetitive, excessively linear in focus, unstable, and, that it conceal(s) interests other than the purely legal.”31 This criticism points to the view of international law as reflecting a formulation of society from a progressive narrative that mirrors the enlightenment, one in which law is always improved by the passage of time and thus avoids incorporating alternative less-progressive versions of the role of international law as a tool for exclusion and the continuation in structural economic inequalities, or the influence of religion and other universalizing ideologies in current legal doctrinal elaborations.32 This denunciation pointed to the lack of recognition of the absence of a central international legal order as an impartial (and a historical) point of reference to which states can refer to.33 Accordingly, new stream approaches asserted that law and its history can be regarded as a structure of repeating practices and arguments in which the

29 An example of this criticism in Timo Makkonen, “Identity, Difference and Otherness: The Concepts of “People,” “Indigenous People,” and “Minority” in International Law” (Erik Castrén Institute of International Law and Human Rights, 2000). 30 Cass, “Navigating the New Stream,” 349. Caas refers to the observations of Annelise Riles regarding the work of Thomas J. Lawrence “The vision of international law, both submerged in culture and removed from culture, that sustained this essential European identity also patterned itself after the heroicism of the literary text that both situates itself in context and distills context into a purer and more powerful form … This essentialized European identity depended, however, upon an opposition of Europe to non-Europe that articulated in symbolic terms inequalities of power between Europeans and their colonial subjects… The essentialist view of culture that sustained Lawrence's argument for the viability of international law was inseparable from the parallel cultural project of colonial domination.” Annelise Riles, “Aspiration and Control: International Legal Rhetoric and the Essentialization of Culture, ” Harvard Law Review 106, no. 3 (1993): 737. See additionally, Outi Korhonen, International Law Situated. An Analysis of the Lawyer’s Stance towards Culture, History and Community, The Erik Castrén Institute Monographs on International Law and Human Rights (The Hague: Kluwer Law International, 2000). 31 Cass, “Navigating the New Stream,” 354. 32 Deborah Z. Cass, “Navigating the Newstream: Recent Critical Scholarship in International Law,” Nordic Journal of International Law 65 (1996): 349–58. 33 Anthony Carty, “Critical International Law: Recent Trends in the Theory of International Law,” The European Journal of International Law 2, no. 1 (1991): 1.

relationship between law and society is not only interrelated through the prism of the state, but furthermore, the aim is to conceive law as nothing but “a repetition of the relationship it posits between law and society. Rather than a stable domain which relates in some complicated way to society or political economy or class structure, law is simply the practice and argument about the relationship between something posited as law and something posited as society”.34 The last conceptual issue concerns the relationship between law and language. New stream scholars consider law as a system of “linguistic manoeuvres” or as a practice of argumentation. This, at the bottom line, was contrary to the belief manifested by previous authors that rules can attain determinacy and that there are ‘correct’ interpretations of international legal norms. The logic behind this later (mainstream) assumption is that language can provide neutrality for channelling power; as a consequence “[t]he state’s consent is to something called ‘a rule.’ This rule is made up of words and the words can be interpreted in a non- political way. Thus, ideological conflict can be separated from legal argument and the nation state can logically give its obedience to the resulting ‘objective’ structure.”35

Radical scholarship differentiates itself by undermining the possibility of finding the “true meaning” of a legal text or the “real” interpretation of a norm by looking behind an instrument or doctrine (such as the travaux préparotoires) precisely because language acts as a constitutive tool, that due to its malleability could potentially justify any set of legal arguments and therefore any interpretative venue.

Methodologically, radical legal scholarship redefines the uses of polarities/dichotomies or “doubles” to point out the contradiction of argumentative problems and incoherence within international legal arguments. For example, in a famous passage entitled The content of the rule of law: concreteness and normativity, Koskenniemi describes that for the organization of society through (international) legal rules, international law should be based on the concrete and verifiable behaviour of the state (concreteness), while at the same

34 Kennedy, “A New Stream of International Law Scholarship,” 8. 35 James Boyle, “Ideals and Things: International Legal Scholarship and the Prison-House of Language,” Harvard International Law Journal 26 (1985): 347. Additionally, Louis E. Wolcher, “How Legal Language Works,” Unbound 2 (August 20, 2009): 91–125.

time, international law should be applied regardless of the political preferences of the state (normativity).36

Both elements, normativity and concreteness, compose the “argumentative structure” of all international legal arguments. That is because “it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other out. The dynamics of international legal arguments are provided by the constant effort of international lawyers to describe their rule as either concrete or normative. This dilemma would be repeated, albeit with other names, in dichotomies hidden in every legal argumentation, such as “positivism/naturalism”, “consent/justice”, “autonomy/community”, “process/rule”, etc.37

Most distinctively, Kennedy and Koskenniemi have resourced to the uses of dichotomies, in order to demonstrate that “all legal arguments veer between justifications for state behaviour, or advocacy of more international regulation”.38 This procedure has served to demonstrate the role of binary oppositions to attain legal change, exposing international law’s irreconcilable ideas and the need to look beyond law and into other disciplines. Many radical scholars have begun using non-legal techniques (such as literary writing style or ethnographic narrative) for the description of international legal failures in topics as far apart as development39, human rights40, or (since the beginning of the 1990s) international criminal law.41

36 Martti Koskenniemi, “The Politics of International Law,” The European Journal of International Law 1, no. 1 (1990): 7–9. 37 Ibid. 38 Further, Cass, “Navigating the New Stream,” 362–63. See especially, Kennedy, “Theses about International Law Discourse” and Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument. ” 39 David Kennedy, “Spring-Break,” Texas Law Review, 1377-1424, 63 (1985). Luis Eslava, “Istanbul Vignettes: Observing the Everyday Operation of International Law,” London Review of International Law 2, no. 1 (March 1, 2014): 3–47. 40 Jarna Petman, “Human Rights and Violence: The Hope and Fear of the Liberal World” (S.l.: Hart Pub, 2015). M. Halme-Tuomisaari, “Human Rights in Action: Learning Expert Knowledge” (Martinus Nijhoff Publishers, 2010). 41 See especially Immi Tallgren, “We Did It? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court,” Leiden Journal of International Law 12 (1999): 683–707. Also, Sarah M. H. Nouwen, “‘As You Set Out For Ithaka’: Practical, Epistemological, Ethical, and Existential Questions about Socio- 25

Strategically and broadly put, the most important difference is that while mainstream writings are focused on facilitating the drafting of new documents or the improvement of legislation to affect state behaviour, these aims still target the reformation of existing rules and practices. In contrast, new stream scholars are generally preoccupied with radical and systemic changes. This “shifts the conventional emphasis from re-moulding legal rules to one which attempts to re- conceptualize their very bases”.42

In order to accomplish this, new stream scholars uphold the incorporation of multiple perspectives (like, culture, race, gender, economy, etc.) to the analysis of ‘law’43, the rewriting of doctrinal history44 and the integration of the analysis of politics (and its biases) as part of doctrinal discussions.

(1) Conceptual bases

The aim of improving international law’s theoretical engagements and the exploration into a variety of other disciplinary fields made CILT draw from a multiplicity of eclectic sources and academic sites. The influences can be primarily traced from the American legal realism through critical legal studies45, European critical philosophy (French post-structuralism as well as the Frankfurt

Legal Empirical Research in Conflict,” Leiden Journal of International Law 27, no. 01 (March 2014): 227–60. 42 Cass, “Navigating the New Stream,” 371. 43 Anne Orford, “Feminism, Imperialism and the Mission of International Law,” Nordic Journal of International Law 71, no. 2 (2002): 275–96. This in order to address “separate, but interrelated, failings perceived in the international legal project: gender biases; racialized exclusions and differentiations; class, poverty, and exploitation; cultural imperialisms; and hidden violence.” In Jason Beckett, “Critical International Legal Theory,” 2012, http://www.oxfordbibliographies.com/display/id/obo-9780199796953-0007. 44 Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal Construction of War,” Columbia Journal of Transnational Law 43 (2004): 1–71. Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other,’” in “International Law and Its “Others,”” ed. Anne Orford (Cambridge: Cambridge University Press, 2006). 45 Mark Kelman, “A Guide to Critical Legal Studies” (Cambridge/London: Harvard University Press, 1987).

school of critical theory)46 and Marxist thinking.47 Beckett and Carty48 include in its foundations also post-modern theory (e.g. Derridean deconstruction)49 and postcolonial studies influenced greatly by Frantz Fanon.50 For example, most prominently (from these heterogeneities) and among others, feminist51and postcolonial studies in international law52 and the so-called third world approaches.53 This heterogeneity is reflected in the description of its influences by one commentator:

46 David Held, “Introduction to Critical Theory: Horkheimer to Habermas” (Berkeley: University of California Press, 1980). As Hunt noticed, the specific characteristic of the Frankfurt School of critical theory was the search for linkages with a variety of intellectual traditions (among other European sociology. Alan Hunt, “The Theory of Critical Legal Studies,” Oxford Journal of Legal Studies 6, no. 1 (March 20, 1986): 1–45. 47 For a good overview, see Susan Marks, ed., International Law on the Left: Re-Examining Marxist Legacies, Reissue (Cambridge: Cambridge University Press, 2011). 48 Beckett, “Critical International Legal Theory.” Carty will go as far as to define the New stream as the application of postmodern theory to international law Carty, “Critical International Law: Recent Trends in the Theory of International Law.” 49 For example quoted in different sections of the book, Anne Orford, ed., International Law and Its Others (Cambridge: Cambridge University Press, 2006). There are four texts specially relevant: Jacques Derrida, “Force of Law: The ‘Mystical Foundations of Authority,’” Cardozo Law Review 11 (1990): 921–1045. Jaques Derrida, “Spectres of Marx. The State of the Debt, the Work of Mourning and the New International, ” trans. Peggy Kamuf (New York/ London: Routledge Classics, 1994). Jacques Derrida, “Of Grammatology” trans. Gayatri Chakravorty Spivak (Baltimore/ London: The Johns Hopkins University Press, 1998). Additionally, Jacques Derrida, “Writing and Difference,” trans. Alan Bass (London/New York, 2001). 50 A specially influential text is Frantz Fanon, “The Wretched of the Earth,” trans. Richard Philcox, Reprint edition (New York: Grove Press, 2005). 51 Classical examples are Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law, ” The American Journal of International Law 85 (1991): 613–45, and Orford, “Feminism, Imperialism and the Mission of International Law.” 52 Anthony Anghie, “Imperialism, Sovereignty and the Making of International Law” (Cambridge: Cambridge University Press, 2005). Anthony Anghie, “On Critique and the Other,” in International Law and Its Others, ed. Anne Orford (Cambridge/New York/Melbourne/Madrid: Cambridge University Press, 2006). Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other.’” 53 Balakrishnan Rajagopal, “International Law from Below. Development Social Movements and Third World Resistance” (Cambridge/New York: Cambridge University press, 2003). Sundhya Pahuja, “Decolonising International Law: Development, Economic Growth and the Politics of Universality,” Reprint edition (Cambridge University Press, 2013). Jose-Manuel Barreto, “Human Rights from a Third World Perspective: Critique, History and International Law” (Newcastle upon Tyne, UK: Cambridge Scholars Publishing, 2013).

Normative philosophy, critical theory, structuralism, anthropology, prepositional logic, literature, sociology, politics and psychiatry … Legal realism, new left anarchism, Sartrean existentialism, neo-progressive historiography, liberal sociology, radical social theory and empirical social science.54

This cross-disciplinarity has consequently shaped CILT (and the new stream approaches) into the inclusion of a broad array of techniques and methodologies whose body of thought lead it to be internally contradictory.55 This has distinguished the new stream as not following one particular method or trend because the proponents welcomed the absorption of forms of knowledge that (in some cases) did not engage directly or indirectly with legal doctrines or concerns, so that “the new writings in the field [were] … so heterogeneous, self-reflective, and sometimes outright ironic, that the conventions of academic analysis about ‘method’ would inevitably fail to articulate its reality”.56

What new streams writings share, however, is a distinctive canon or ‘basis’ in order to engaged international legal topics with a fundamental notion of critique that would separate its traditional sources and theoretical foundations with what would be later identified as ‘proper and independent’ critical international legal theory.57

(2) The notion of critique

This critique began by assessing that many of the problems that derived within positivistic and naturalistic trends in international legal dogmatic were based on the translation to the international domain of some basics precepts of liberal

54 Purvis, “Critical Legal Studies in Public International Law,” 88–89. 55 An early observation that persists today is the lack of coherence concerning the uses of postmodern authors simultaneously with those of classical American critical legal scholarship. Peter Fitzpatrick and Alan Hunt, “Introduction,” Journal of Law and Society 14, no. 1 (April 1, 1987): 1–2. 56 Martti Koskenniemi, “Letter to the Editors of the Symposium,” American Journal of International Law 93 (1999): 352. 57 In Beckett’s words, CILT “tries to focus on empirical occurrences, historical continuities (and ruptures), on a world outside of legal texts and conference proceedings”, Beckett, “Critical International Legal Theory.”

political theory.58 Especially concerning the antinomy of public rules and private ends59 that was reflected as a principle of liberal political thought in the distinction between rules and values.60 Accordingly, there was a contraposition between an individualistic argument, where social order is “ultimately legitimate only insofar as it provides for individual freedom”61 and a communitarian argument that claimed that “individual freedom can be preserved only if there is a normatively compelling social order”.62

Both individualistic and communitarian positions were validated in a notion of a rule of law where the legitimacy of a social order is one which is objective and was constituted by formally neutral and objectively ascertainable rules, created in a process of popular legislation.63 The influence of liberalism was reflected at the international level in the liberal principles of self-determination, sovereign equality, non-intervention and sovereign cooperation, all praising the idea that an “international public order” emerged from the individual states after the Peace of Westphalia (1648) in order to protect state freedom and state ends while at the same time guaranteeing every state its own system value within domestic frontiers.64

58 Carty, “Critical International Law: Recent Trends in the Theory of International Law,” 1. See specially the chapter entitled “the liberal doctrine of politics and its effects on international law” in Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument, ” chap. 2. 59 Roberto M. Unger, “Knowledge and Politics” (New York/ London: Collier Macmillan Publishers, 1975), 7. 60 Ibid. 67. 61 Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument,” 71. 62 Ibid. 63 The rule of law “signifies that all persons (natural or juridical), including organs of the state, should comply with laws adopted through prescribed constitutional procedures. Its essence is the prohibition of the exercise of arbitrary power. The scope of the rule of law includes the procedural guarantees of general laws and an ‘impartial’ due process” in B.S. Chimni, “Legitimating the Rule of Law,” in The Cambridge Companion to International Law, ed. James Crawford and Martti Koskenniemi (Cambridge ; New York: Cambridge University Press, 2012), 290. Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument, ” 71. 64 International law is depicted as a consent-based (or consensual) system. This follows from the claim that international law is predominately made by states, see Klabbers, International 29

Against the so-called “tragic voice of post-war public law liberalism”65 the critique advanced by CILT has concentrated on different areas, for the relevance of a critical approach towards ICL, I will introduce three main points: firstly, that the logic of liberalism in international law is internally incoherent; secondly, that internationally legal discourse operates within a constrained structure, and thirdly, that international legal analysis is indeterminate.66 a) Internal incoherence

This is represented by two assumptions: initially that sovereignty is the foundation of international law and therefore prime political authority is conceded to the state. The system rests on mutual restraint (non-intervention) and the recognition of each other’s sovereignty.67 International life is sovereign-centric, which makes the figure of ‘the sovereign’ both subject and object of international law. The sovereign stands not only as a basic unit but is equated metaphorically to the individual in the domestic arena.68 Consequently, ‘world order’ is the representation of a contract among these states- as-individual subjects. The second proposition refers to the principle of subjective value. This advances the idea that all values are individual and subjective because they are determined by choice.69 At the level of the possibility of knowledge (epistemology) moral truth and moral worth would also be considered as subjective, intrinsically

Law, 21. Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument, ” 91–94. 65 Kennedy, “A New Stream of International Law Scholarship,” 2. 66 Purvis, “Critical Legal Studies in Public International Law,” 92. Expanded in Kennedy, “Theses about International Law Discourse.” 67 Susan Strange, “The Westfailure System,” Review of International Studies 25, no. 03 (July 1999): 345. 68 This is ‘the domestic analogy’ discussed later in the chapter. Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument,” 22. 69 Unger, “Knowledge and Politics,” 76–83.

denying the existence of any other category of values independent of subjective choice so called, objective value.70 The implantation of both the sovereign foundation and the principle of subjective value in the international arena would imply that decisions about morality could only be made “by international law’s atomic component, its sovereigns”71 and that “states must be equal in the moral sense, because no pre-existing objective morality can judge their conduct”.72 Together, both assumptions compel a contradictory vision of world order and of the relation between law and politics, whereby the only legitimate system of governance is based on the maximization of sovereign liberty. Concretely, this upholds a version of world order in which some sovereigns could “act in a manner entirely at odds with the free choices of other sovereigns.73 This would necessarily override the primacy of sovereignty and create a tension in the contract-based version of “world order”. The regulation of the spheres of sovereign liberty are vested in international law and based on the rule of law committed to both formal equality between states74 and equal treatment with respect to rules.75 Therefore for liberal political thought, the law requires generality, a quality that implies uniformity of application and, as such, objectivity.76 The contradiction lies in the fact that in the international scene, liberalism cannot endorse a notion of legal equality claiming to resolve international conflicts

70 Ibid., 76. Also Alasdair MacIntyre, “After Virtue: A Study in Moral Theory,” Third Edition, 3rd edition (Notre Dame, Ind: University of Notre Dame Press, 2007). 71 Purvis, “Critical Legal Studies in Public International Law,” 94. 72 Ibid., 95. 73 Ibid. 74 Benedict Kingsbury, “Sovereignty and Inequality,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, February 29, 2008), http://papers.ssrn.com/abstract=803695. 75 For Unger “formal equality means that as citizens of the state and legal persons men are viewed and treated by the law as fundamentally equal” Unger, “Knowledge and Politics,” 74. 76 Purvis, “Critical Legal Studies in Public International Law,” 96.

through the appeal to rules of objective neutrality while mutually safeguarding the subjective value of sovereign states.77 For example, the doctrine of jus cogens as a peremptory norm posits a non- consensual fundamental rule, because by definition “no derogation is allowed under any circumstances”78, therefore this norm is binding regardless of the consent of the (state) parties. However, any law that would not make reference to what the states have previously agreed upon violates the principle of subjective value, because the states’ subjective consent has established that “international community of states” in which jus cogens is assumed to be universally binding. In other words, the identity of sovereign states with “legitimate and respected internal authority depends upon their participation in an international society which is not compatible with that sovereign authority. They cannot be both internally absolute and externally social”.79 [Author’s emphasis] b) Constrained structure I) Liberal ideology

In accordance with this critique, legal reasoning in international law is constrained by the liberal ideology and the patterns of legal argument inherent in liberalism.80 This first contention is expressed by critical theorists of the Frankfurt School.81 The notion of ideology in international law would refer to the way in which

77 Ibid. 78 Kamrul Hossain, “The Concept of Jus Cogens and the Obligation Under The U.N. Charter,” Santa Clara Journal of International Law 3, no. 1 (January 1, 2005): 73. 79Kennedy, “Theses about International Law Discourse,” 361. 80 Purvis, “Critical Legal Studies in Public International Law,” 99. 81 Broadly put, scholars belonging to this tradition focused on the interrelation of false consciousness, ideology and legitimation and the development of a “dialectic of criticism” that would overcome the split between theory and action. Kennedy, “Critical Theory, Structuralism and Contemporary Legal Scholarship.” This school of thought ranges from the work centred around the Institute of Social Research founded in Frankfurt in 1923 and the second epoch centred on the work of Jürgen Habermas. See Held, Introduction to Critical Theory, 14. Furthermore, Karl Mannheim, “Ideology and Utopia. An Introduction to the Sociology of Knowledge, ” (San Diego/New York/London: Harvest Book, 1955). Especially on the connection between the Frankfurt School and critical legal theory Kelman, “A Guide to Critical Legal Studies.” Roberto M. Unger, “The Critical Legal Studies Movement” (Cambridge/London: Harvard University Press, 1986). Ian Ward, “Introduction to Critical Legal Theory, ” 2nd edition (London ; Portland, Or: Routledge-Cavendish, 2004).

“meaning serves to establish and sustain relations of domination … [and] the way in which words (and other symbolic forms) support inequalities of power.”82 Accordingly, the problem with ideology is not that it is premised in error but that it is instrumental to asymmetric relations of injustice indexed to class, ethnicity, gender, and so on.83 From the awareness that international law has a normative structure, the second contention refers to the fact that international legal reasoning operates in a framework already embedded in political choices and structural bias. To explain this, CILT reveals the relationship between the liberal theory of politics and the public international life centred in a sovereign-centric conception of world order.84 The fact that liberalism explains the ordering of the world through the immaterial notion of sovereignty consequently makes sovereignty (as an abstraction) both a description of how the world was structured and a “natural” system of ordering. To that extent, the sovereign state is not only considered as an abstract object, but also as an actual entity, as such, “Liberalism collapses the ‘is’ and ‘ought’ by never questioning the rightness or propriety of dividing international life into spheres of sovereign authority. Liberalism suggests that sovereigns simply are and do not need to be justified”.85 The merging of “is” and “ought” does more than configure international affairs. “It fills it with normative content. It defines, normatively and structurally, the context within which we consider issues. We see international relations in terms of sovereign authority. Liberal ideology provides the mode of governance, based on liberty, and a dispute resolution, based on the rule of law”.86 The implications are wide-ranging: not only would ideology shape substantive and procedural rules of international law but would also condition the legitimation

82 S. Marks, “Big Brother is bleeping us - with the message that ideology doesn’t matter,” European Journal of International Law 12, no. 1 (February 1, 2001): 110. “On Ideology as an Analytical Category for Critique in International Law” Susan Marks, “The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology” (New Ed. Oxford: Oxford University Press, USA, 2003). 83 Marks, “Big Brother is bleeping us - with the message that ideology doesn’t matter,” 111– 112. 84 Purvis, “Critical Legal Studies in Public International Law,” 102. 85 Ibid., 100. 86 Ibid., 101.

of legal arguments and as such the delimitations of legal reasoning.87 In this way, ideology functions as a structuring category or power arrangement rather than the expression of an underlying logic.88

II) International legal argument

CILT considers that international law is moulded by the structure of international legal discourse. To conceive this, critical theorists approached international law as a language, and the contradictions derived from liberal theory as part of its (generative) grammar.89 The critical perspective advances two approaches, the first perspective views international law from the inside as a set of doctrines and arguments and their recurrent rhetorical structure, setting aside issues of meaning, origin and applicability.90 The second perspective addresses the historical justifications about authority, origins and coherence of the discipline.91 The first standpoint is embodied in the analysis of international law as a unified body of static doctrines represented by the three traditional (discursive) doctrinal areas, namely, sources, substance and process.92 While the doctrine of sources explains the origins and authority of international law (framed in Article 38 of the ICJ statute), the doctrine of substance focuses on the substantive rules governing state conduct which centres on the autonomy and cooperation of sovereigns states (typically founded in the preamble of

87 On the role of ideology in adjudication see W. Lucy, “What Is Wrong with Ideology?,” Oxford Journal of Legal Studies 20, no. 2 (June 1, 2000): 283–300. 88 On this view, Shirley V. Scott, “International Law as Ideology: Theorizing the Relationship between International Law and International Politics,” European Journal of International Law 5 (1994): 313. For a different understanding of ideology, China Miéville, “The Commodity- Form Theory of International Law,” in “International Law on the Left. Re-Examining Marxist Legacies, ” ed. Susan Marks (Cambridge: Cambridge University Press, 2008), 102–3. 89 Taken from linguistic studies, the basic idea was that this generative grammar is made of the rules that could potentially generate the sentences in a language. Chomsky used the terminology of transformational-generative grammar. Noam Chomsky, “Syntactic Structures” (Walter de Gruyter, 2002). Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument, ” 565–73. 90 David Kennedy, “International Legal Structures” (Baden-Baden: Nomos, 1987), 7. 91 Purvis, “Critical Legal Studies in Public International Law,” 102–5. 92 This division follows David Kennedy, ibid.

international conventions), and the procedures of international law refer to the mechanisms within states that would allow the resolution of international legal issues.93 In Kennedy’s structural analysis, international law is questioned in reference to the liberal dichotomy between sovereign freedom and world order. The internal incoherence created by this opposition, brings consensual rhetoric in sources, substance and process that appeals to the sovereign consent (such as the rhetoric of treaty law) into collision with traditional positivist doctrine that requires evidence of practice (such as the rhetoric of international custom) therefore making international legal discourse content ‘emptied’ and self-referential, in other words, without an objective foundation. As was demonstrated by Kennedy, the three doctrinal explanations need to reference each other to provide closure and completeness.94 Koskenniemi presented the analytical work From Apology to Utopia. The Structure of International Legal Argument (FATU).95 In brief 96, the text traced the political nature of international legal discourse interpreted as an argumentative practice and reduces all international legal arguments to rhetorical moves in dichotomies or oppositions. As such, all central ideas of doctrine rely on “reversible argumentative strategies that can be reduced to two basic mutually

93 D. Kennedy, ibid. 94 “[s]ources discourse seems to consider law’s origins and authority –and hence its distinctiveness– in a social order of which it is only a part. Substantive discourse, by contrast, seems to consider law’s participation in formulating a social order of freedom and coercion. Process discourse seems to consider international law’s ability both to remain distinct from the social order as demanded by sources and to relate to it as demanded by substance” Kennedy, “International Legal Structures, ” 289. 95 The book is regarded as the most important treatise on CILT. FATU has been discussed widely in international legal theory circles and beyond. Countless articles have been devoted to Koskenniemi and FATU, including special journal issues. Specially concerning the contradictory nature of international law’s structure see, Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, chap. 1.3. For a selection assessing Koskenniemi’s work, Jarna Petman and Jan Klabbers, eds., “Nordic Cosmopolitanism : Essays in International Law” for Martti Koskenniemi (Leiden: Nijhoff, 2003). Jason Beckett, “Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project,” German Law Journal 7, no. 12 (2006): 1045–88.Jochen von Bernstorff, “Sisyphus Was an International Lawyer: On Martti Koskenniemi’s ‘From Apology to Utopia’ and the Place of Law in International Politics,” German Law Journal 7, no. 12 (2006): 1015–36. Special issues in TILJ , “Engaging the Writings of Martti Koskenniemi,” Temple International & Comparative Law Journal 27 (2013). GLJ, “From Apology to Utopia: A Symposium,” German Law Journal 7, no. 12 (2006). 96 Following the structuralist work of Kennedy, “Theses about International Law Discourse.”

exclusive conceptual schemes determining the outcome of a particular legal argument”.97 For Koskenniemi, there are two ways of arguing about order and obligation in international law. Either arguments focus on normative codes that precede the state behaviour, like justice, common interest, progress, world community, etc. (he names these descending patterns of justification), or the arguments base the order and obligation precisely on state behaviour, will or interest (namely, ascending patterns of justification).98 Following Koskenniemi, this could be summarized as follows: A B Descending Ascending Normative Concrete Utopian Apologist Communitarian Autonomous Objective Subjective Naturalist Positivist

While the first terms of these pairs of opposites (A) correspond to those arguments that appeal to normative hierarchy for the justification of international law, the second terms (B) relate to the arguments based on actual state will or behaviour. Descending patterns can be traced down to the assumption of a normative code that overrides state behaviour, while an ascending pattern is premised on the view that state behaviour determines the law, so “either the normative code is superior to the State or the state is superior to the normative code”.99 Consequently, international legal discourse cannot fully incorporate whichever array of justification, but it works so as to make these oppose poles superficially compatible. The outcome is an incoherent argument “which constantly shifts between the opposite positions while remaining open to challenge from the

97 Bernstorff, “Sisyphus Was an International Lawyer,” 1020. 98 This terminology makes reference to Walter Ullmann. See Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument,” 59.

99 Ibid.

opposite argument”.100 This shifting is described as the dynamics for international legal arguments. Arguments that favour the universal binding (therefore non-consensual) would consider descending privilege an objective norm. Positions that favour the “factual” state behaviour argue for an ascending, code backing jus cogens obligation under state practice. As such, the doctrine of jus cogens accommodates a descending with an ascending perspective in the form that “peremptory norms bind irrespective of consent … but what those norms are is determined by consent”.101 From FATU it is possible to argue that in international law each legal concept can and must be articulated, “from an ascending as well as descending perspective”102, and this interpretative choice cannot be controlled by legal science or by legal concepts due to the fact that every interpretation already implies a ‘hidden’ political choice.103 The oscillation between ascending and descending patterns within the legal discourse is the distinctive feature of international law.104 c) Radical indeterminacy

The notion of determinacy corresponds to the view consequential with liberal legality, one in which addressing a case entails that a jurist should construct a “high level theory” to best fit the available doctrines, jurisprudence and treaties, i.e. should engage in a process of determinate theorizing. In a consequential procedure, the jurist should apply this abstraction to the factual materials in order to provide a particular substantive outcome ensuring a determinate application.105

100 Ibid., 60. 101 Ibid., 324. 102 Ibid., 506.

103 Bernstorff, “Sisyphus Was an International Lawyer,” 1020. 104 Ibid., 1020–21. 105 As for instance expressed in the positivistic tradition in Anglo-American Legal theory of authors such as Joseph Raz and Ronald Dworkin and in a similar vein in UK, Neil MacCormick. Further, William Lucy, “Understanding and Explaining Adjudication,” 1 edition (Oxford ; New York: Oxford University Press, 1999), 2–3. Purvis, “Critical Legal Studies in Public International Law,” 105–6.

In contrast, radical indeterminacy advances the notion that public international law “is equally capable of supporting any claim: that law can produce diametrically opposed answers to any question of legality”,106 therefore disputing the idea that liberal legality could attain determinacy in the resolution of cases especially at an international level characterised by the lack of any centralised legal institution, but that is highly fragmented.107

Understood in this manner, new stream scholars argue that international legal doctrine can provide for the justification of multiple and competing outcomes in any legal debate,108 therefore in a dispute there is no a-priori justification of one outcome above others as each result is equally valid, so it is “impossible to deduce implications from concepts and consequently, abstraction cannot “compel” any decision”.109 Indeterminacy points out to the impossibility of a ‘correct’ semantic interpretation of a doctrine, rule, or jurisprudence, but more importantly it demonstrates that the descending and ascending patterns of justification are the internal feature of all doctrinal arguments and as such it questions the very nature of international legal discourse (and of international law itself)110 as “it is impossible to find a coherent theory that can justify the rule of law in international life.”111 For example the interpretation of the ‘effective control’ set out in the Nicaragua case by the International Court of Justice,112 to create responsibility concerning

106 Beckett, “Rebel Without a Cause? Martti Koskenniemi and the Critical Legal Project,” 1052. Specially devoted to the explanation of radical indeterminacy Duncan Kennedy, “Form and Substance in Private Law Adjudication,” Harvard Law Review 89 (1976): 1685–1778. And concerning the ‘fundamental contradiction’ in legal argumentation, David Kennedy, “The Structure of Blackstone’s Commentaries,” Buffalo Law Review 28 (1979): 205–382. 107 From an historical perspective concerning the debate on fragmentation in international law, Anne-Charlotte Martineau, “The Rhetoric of Fragmentation: Fear and Faith in International Law,” Leiden Journal of International Law 22, no. 01 (March 2009): 1–28. 108 This characteristic has been name the “reversibility of international legal discourse”. See, Emmanuel Jouannet, “Koskenniemi: A Critical Introduction,” in The Politics of International Law (Oregon and Portland: Hart, 2011), 1–32. Martti Koskenniemi, “Hierarchy in International Law,” The European Journal of International Law 8, no. 4 (1997): 566–82. 109 Purvis, “Critical Legal Studies in Public International Law,” 109. 110 Indeterminacy convoys a semantic and (simultaneously) an ontological critique. 111 Purvis, “Critical Legal Studies in Public International Law,” 106. 112 Military and Paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), 115 (International Court of Justice 1986). “The Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, 38

breaches of humanitarian law was rejected by the ICTY Appeal Chamber in the Tadić case113 whilst sustaining that in the situation of internal conflict “overall control” over the military forces of one of the parties was a sufficient test for determining its internationalization. One reading would be to acknowledge that the ICTY ruling was promoting the differentiation between state responsibility and criminal accountability in the contest of two courts that held no hierarchical relationship between them.114 Nevertheless, from the purview of radical indeterminacy, what the two different interpretations display is that both versions are “right” in the sense that both are equally valid interpretative choices, since arguments favouring one position could be equivalently used to support the opposite view. In this framework, international law cannot be detached from the usages of the jurist or ‘the international lawyer’ as even a literal application is always a choice “undetermined by literality itself. There is no space in international law that would

organizing, training, supplying and equipping of the Contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the Contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the Contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” 113 Prosecutor v. Duško Tadić Appeal Judgment, 145 (ICTY 1999). “In the light of the above discussion, the following conclusion may be safely reached. In the case at issue, given that the Bosnian Serb armed forces constituted a “military organization”, the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law”. 114 Pointing to the same cases specifically to address the contradictions in terms of fragmentation, Martti Koskenniemi and Päivi Leino, “Fragmentation of International Law? Postmodern Anxieties,” Leiden Journal of International Law 15, no. 03 (September 2002): 553–79. And advocating the coexistence of both tests, Antonio Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia,” European Journal of International Law 18, no. 4 (September 1, 2007): 649–68.

be free from decisionism, no aspect of legal craft that would not involve a “choice” – that would not be in a sense, a politics of international law.”115

1.4.2 Definition of critique for this study

The critique presented here builds up from the various structural shortcomings pointed by CILT concerning internal incoherence, constrained structure and radical indeterminacy regarding international law discourse. Additionally it intersects with other discussions on the divisions between theory and critical theory as well as from the separation between problem-solving approaches and critique.116 As explained below, this research pursues a critical account with three main components: internal or immanent, political-normative and the expansion of radical indeterminacy to institutional settings. Firstly, this study is developed as an immanent critique by way of making conceptual claims about the notion of selectivity deduced from indictment policy decisions and the outcomes. As such, the emphasis is not only in the perception of international law as an intellectual discipline containing formal rules but more importantly as a series of professional performances, this is to say “the common practice of men and women who share a particular expertise and are engaged in personal, professional or political projects, communicate with each other, defend

115 Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument,” 596. 116 This section has been especially influenced by Susan Marks, “The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology,” New Ed (Oxford: Oxford University Press, USA, 2003), chap. 6. Max Horkheimer, “Traditional and Critical Theory,” in “Critical Theory: Selected Essays” (New York: Continuum, 1975), 188–243. Robert W. Cox, “Social Forces, States and World Orders: Beyond International Relations Theory,” Millennium - Journal of International Studies 10, no. 2 (June 1, 1981): 126–55.Costas Douzinas, “Oubliez Critique,” Law and Critique 16 (2005): 47–69. Judith Butler, “What Is Critique? An Essay on Foucault’s Virtue,” The European Graduate School. Faculty Webpage, 2002, http://www.egs.edu/faculty/judith-butler/articles/what-is-critique/. Bruno Latour, “Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern,” Critical Enquiry 30, no. 2 (Winter 2004): 225–48. Guyora Binder, “Beyond Criticism,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, 1988), http://papers.ssrn.com/abstract=1933947.

ideas, practices or doctrines, and produce normative discourse in stylised and ritualised modes for a particular audience”.117 This immanent critique functions to point out the ‘gap’ between practice and the justificatory explanations within legal discourse addressing for this reason “the totality of the social bond … [as] it is from the angle of the whole that the gap between norms and their realisation is judged”118, the idea is to offer a theorization that acknowledges that individuals cannot be separated from the activities and events in which they partake, recasting theorizing as comprehensive of the relationship between legal agents and their outcomes.119 Secondly, a political-normative perspective addresses the radical indeterminacy of international law discourse aimed at showing its political nature. The political- normative approach relies on the differentiation between theory and critical theory. The unification of value, research, knowledge and action implied in a critical venue upholds the lack of borders between ‘legal practice’ and ‘the law’. Echoing Koskenniemi’s take, international criminal law is what international [criminal] lawyers do with it in a day-to-day basis.120 The implication of this approach is to re-introduce the actors (the jurist, the diplomat, the UN advisor, the chief prosecutor, etc. and their respective functions) as to have a primary role in the execution of indictment policy and the selection of defendants and to that extent, relegating “the law” to a secondary role.121

117 Mario Prost, “The Concept of Unity in Public International Law,” 1st ed. (Hart Publishing, 2012), 133. More generally, David Kennedy, “One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream,” New York University Review of Law and Social Change 31 (2007): 649–50. 118 Douzinas, “Oubliez Critique,” 51. In accordance with Butler, “critique is always a critique of some instituted practice, discourse, episteme, institution, and it loses its character the moment in which it is abstracted from its operation and made to stand alone as a purely generalizable practice”. Butler, “What is Critique? An Essay on Foucault’s Virtue.” 119 Horkheimer, “Traditional and Critical Theory,” 208–211. 120 Martti Koskenniemi, “Between Commitment and Cynicism: Outline for a Theory of International Law as Practice,” in “Collection of Essays by Legal Advisers of States, Legal Adviser of International Organizations and Practitioners in the Field of International Law” (New York: United Nations, 1999), 495–523. Further, Max Horkheimer, “Critical Theory: Selected Essays” (New York: Continuum, 1975), 208–13. 121 In this sense, see David Kennedy, “The Disciplines of International Law and Policy,” Leiden Journal of International Law 12, no. 1 (1999): 17–18. Additionally, Euan MacDonald, “International Law and Ethics After the Critical Challenge: Framing the Legal Within the Post- Foundational” (Martinus Nijhoff Publishers, 2011), 74.

Now, international legal discourse is composed by the articulation of doctrines, substance and processes (in the vein revealed by Kennedy). The point of a radical critique is not simply to attest that ‘law has a political component’ but to target the impossibility to achieve a ‘correct’ and neutral answer without a ‘decision’ which can inescapably be reduced to a political choice of the agents who make that choice consciously or unconsciously.122 All international law discourse is without foundation, in the sense that its substance, sources and process cannot assert their authority without relying on each other’s scope. Thirdly, critique is differentiated from mere forms of criticism, as its objective is to go beyond “fault-finding”.123 In that manner, “the primary task of critique will not be to evaluate whether its objects – social conditions, practices, forms of knowledge, and discourse – are good or bad, valued highly or demeaned, but to bring into relief the very framework of evaluation itself”.124 This implies surpassing the allocated scaffolds of analysis to subject these very ‘structures’ to questioning. For something to be properly a CILT ‘critique’, it should stand ‘outside’ of the very understandings of the object of the study, leaving aside the ‘deep structure’ (the underlying arrangements) and the surface manifestations of this object in society transcending “fully to their normative requirements”. 125 Consequently, as mentioned under the subsection research questions, instead of asking what to do to overcome selectivity in ICL, I am interested in addressing the question of how external non-legality considerations intervene in the production of selectivity vis-à-vis the formulation of indictment policy. Evaluating ‘selectivity’ from a critical perspective compels this research to formulate answers independently from the way ‘selectivity’ is defined within ICL, thus positioning this enquiry outside the ICL’s definitional framework.

As Cox writes “The [problem-solving theory] takes the world as it finds it, with prevailing social and power relationships and the institutions into which they are organized, as the given framework for action. The general aim of problem-solving is to make these relationships and institutions work smoothly by dealing effectively

122 See the discussion on choices and power in 1.5.3 123 Butler, “What Is Critique? An Essay on Foucault’s Virtue.” 124 Ibid. 125 Douzinas, “Oubliez Critique,” 58.

with particular sources of trouble.”126 Because of this, the institutions and their relationships are not questioned, the solutions provided are bound to the institutional and relational parameters assumed by the problem-solving criticism and because of this they remain attached to their legitimacy and general validity.127

This is manifested for instance in the ‘constructive’ criticisms of ICL that focus on the effectiveness of ICL institutions or the debates over doctrinal issues surrounding ‘proper’ rule interpretations.128 The outcome of both criticisms tends to regard ICL’s problems (including selectivity) as if they “will be resolved when we have strong, professional international institutions that apply the rules equally to all”,129 which denotes a call for the improving and expanding the rules and/or the ICL institutions themselves.

In this manner, constructive or problem-solving criticism aims at institution building, because it assumes that ‘the problem to be fixed’ should be ‘resolved’ within the ICL matrix. In the context of selectivity, this overlooks the ways by which impunity gaps that exist “as a result of selectivity” are in themselves created through the specificity of international [criminal] law discourse.130 On the contrary, a critical theory account, to the extent that it stands ‘outside’ the prevailing order created by the institutional frameworks, is able to engage with the origins of the relationship between ‘the institution’ and the social, directing towards “an appraisal of the very framework for action, or problematic, which problem-solving theory accepts as its parameters”.131 Placing a study subject within the critical vein, such as the one presented here, renders unreasonable to provide advice on ‘systemic improvements’, ‘institutional blueprints’ or ‘ready-made’ legal solutions – precisely on the

126 Cox, “Social Forces, States and World Orders,” 127–28. 127 Ibid., 128. 128 For an illuminating discussion and classification of ICL criticisms. Baars, “Making ICL History. On the Need to Move beyond Pre-Fab Critiques of ICL.” In addition, Sara Kendall, “Critical Orientations: A Critique of International Criminal Court Practice,” in “Critical Approaches to International Criminal Law: An Introduction, ” ed. Christine Schwöbel, 2014, 54–70. Also Immi Tallgren, “Who Are ‘We’ in International Criminal Law? On Critics and Membership,” in “Critical Approaches to International Criminal Law: An Introduction, ” ed. Christine Schwöbel (New York, 2014), 71–95. 129 Baars, “Making ICL History. On the Need to Move beyond Pre-Fab Critiques of ICL,” 207. 130 Ibid., 208. 131 Cox, “Social Forces, States and World Orders,” 129.

grounds that – from an critical scholarly perspective, rules (but also) institutions are themselves ‘indeterminate’ to the social context to which they refer.132 This second fact, aims to the point that “the system still prefers some outcomes or distributive choices to other outcomes or choices” and that “this bias becomes part of the problem”.133 There is no predictability as to how a legal institution (for instance, the ICTY- OTP) will change the societal groups in which it inserts itself. This is due to two reasons, because no society would possess homogeneous or well-defined social needs134 and because international law (including international criminal law) is a heterogeneous place for the production of arguments, a process involving different roles and professions. As such, “there is more to international law than rules”.135 Following Prost, the relevance of a critical enquiry is no longer to question whether rules are compatible or whether they are assembled together to form a coherent system, but more importantly whether regular patterns can be observed in the way in which lawyers think and speak of international affairs and what the implications of these everyday performances are.136 This is precisely because “[l]aw is not just ideological. It is also a site of social conflict and political contest”.137

132 Binder, “Beyond Criticism,” 893. 133 See for instance, Martti Koskenniemi, “The Politics of International Law – 20 Years Later,” European Journal of International Law 20, no. 1 (February 1, 2009): 7–19. 134 Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument, ” chap. Epilogue. 135 Prost, “The Concept of Unity in Public International Law,” 2012, 134. This is made particularly relevant in chapter three. 136 Ibid., 130–34. See for instance, contra on the positive relationship between rule of law and liberalism Andrew Altman, “Critical Legal Studies. A Liberal Critique” (Princeton: Princeton University Press, 1990). Stephen Holmes, “The Anatomy of Antiliberalism” (Cambridge/London: Harvard University Press, 1996). William E. Scheuerman, ed., “The Rule of Law under Siege. Selected Essays of Franz L. Neumann and Otto Kirchheimer” (Berkeley/Los Angeles/London: University of California Press, 1996). For a reading of international law as a social construct, Carlo Focarelli, “International Law as Social Construct: The Struggle for Global Justice, ” 1 edition (Oxford: Oxford University Press, 2012). 137 Matthew Stone, Illan rua Wall, and Costas Douzinas, eds., “New Critical Legal Thinking: Law and the Political, ” 1st edition (Abingdon: Birkbeck Law Press, 2014), ix.

1.4.3 Critical approaches to international criminal law (CAICL)

The first examinations of ICL from the perspective of international critical legal theory, this is to say engaging ICL as an object feasible of critique as described here, can be traced to the mid-1990s.138 Drawing on this new-born canon, a first edited volume entitled Critical approaches to international criminal law was produced in 2014.139 Among the various critiques CAICL discusses, I will highlight three points particularly relevant for selectivity. 140

1.4.3.1 Liberal legalism in ICL

A main feature of the critical approach to ICL is the realization that ICL possesses a liberal legal structure, like all international law in general. As discussed above, liberal legalism presumes that law can function to contain the political field and

138 The first text was written in 1996 by Immi Tallgren and named, the Yugoslav Tribunal (my translation). This article was followed in 1997 by Makau Nutua’s Never Again: Questioning the Yugoslav and Rwanda Tribunals and in 1998 Tallgren’s Completing the international legal order. See, Immi Tallgren, “Jugoslavia-Tuomioistuin,” in Entisen Jugoslavian Alueen Humanitaarisen Oikeuden Loukkaukset Tuomiolla, ed. Immi Lehtonen, Advisory Board for International Human Rights Affairs 8 (Helsinki: Edita, 1996). Makau W. Mutua, “Never Again: Questioning the Yugoslav and Rwanda Tribunals,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, 1997), http://papers.ssrn.com/abstract=1527486. Immi Tallgren, “Completing the “International Criminal Order, ”” Nordic Journal of International Law 67, no. 2 (February 1, 1998): 107–37. Subsequently other CAICL were developed in Tallgren, “We Did It? The Vertigo of Law and Everyday Life at the Diplomatic Conference on the Establishment of an International Criminal Court.” Immi Tallgren, “Article 20 Ne Bis in Idem,” in “Commentary on the Rome Statute of the International Criminal Law, ” ed. Otto Triffterer (Baden-Baden, 1999), 419–34. Immi Tallgren, “The Sensibility and Sense of International Criminal Law,” The European Journal of International Law 13, no. 3 (2002): 561–95. Frédéric Mégret, “Crimes de guerre,” in La Corte Penale Internazionale - Problemi e prospettive., ed. Gaetano Carlizzi et al., 2003rd ed. (Edizioni Vivarium, n.d.), 119–58.David Chandler, “International Justice,” New Left Review, no. 6 (December 2000): 55–66. 139 Christine Schwöbel, ed., “Critical Approaches to International Criminal Law: An Introduction” (Milton Park, Abingdon, Oxon ; New York, NY: Routledge, 2014). 140 For an overview, Frédéric Mégret, “International Criminal Justice. A Critical Research Agenda,” in Critical Approaches to International Criminal Law: An Introduction (New York: Routledge, 2014), 17–53. Sara Kendall, “Critical Orientations: A Critique of International Criminal Court Practice.” Baars, “Making ICL History. On the Need to Move beyond Pre-Fab Critiques of ICL.”

protect individuals from the excesses of state power.141 The implication for ICL is that the uses of liberal political philosophy provide a form of normative framework to secure procedural rights for the accused and the respect for human rights law and humanitarian law in general.142As noted by Robinson, the normative transplantation from human rights law (HRL) and humanitarian law (IHL) in ICL works at three levels: interpretation, substantive and structural conflation and ideological assumptions.143 At the first level, HRL and IHL foster a preference for victim-focused teleological reasoning while proclaiming the interpretation of crimes and inculpatory rules that are “clearly and beyond doubt customary international law”. This favours interpretative approaches that assume that ICL enactment should maximize victim protection inverting in dubio pro reo. Moreover, this also allows relying on interpretations of terms or provisions developed by other jurisdictions. As a result, the principle of strict construction or ‘fair labelling’ is affected.144 On a second level, it is assumed that the ICL norms coexist with IHR and IHL provisions, which allows ICL practitioners to transplant the concepts and jurisprudence from other domains assuming that “because a prohibition is recognized in human rights or humanitarian law, it therefore must be (or ought to

141 Sara Kendall, “Critical Orientations: A Critique of International Criminal Court Practice,” 60–61. Aaron Fichtelberg, “Liberal Values in International Criminal Law A Critique of Erdemović,” Journal of International Criminal Justice 6, no. 1 (March 1, 2008): 11–14. 142 Fichtelberg, “Liberal Values in International Criminal Law A Critique of Erdemović,” 12– 13. 143 See in this respect, Darryl Robinson, “The Identity Crisis of International Criminal Law,” Leiden Journal of International Law 21, no. 04 (December 2008): 929. 144 The principle of fair label states that the level of the offence should express and signal the wrongdoing of the actions Ibid., 933. An example discussed by Mia Swart is the ICTY case against Jelisić where the tribunal resorted to the Vienna convention on the law of treaties to interpret its own definition of genocide in article 4 of the ICTY statute. ICTY, IT-95-10-T. Prosecutor v. Jelisić– Judgment, 61 (1999). Mia Swart, “Judicial Lawmaking at the Ad Hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation,’” Heidelberg Journal of International Law 70 (2010): 473. For a comprehensive discussion on the problems of interpretation see Antonio Cassese, “Interpreting the Statutes of the Ad Hoc Tribunals,” in “Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese,” ed. Lal Chand Vohrah (The Hague: Martinus Nijhoff Publishers, 2003), 851–852. Additionally, addressing the merging of IHL and ICL in general see Christine E. J. Schwöbel, “The Comfort of International Criminal Law,” Law and Critique 24, no. 2 (March 10, 2013): 169–91.

be) criminalized in ICL as well”, overlooking questions of legality and personal culpability.145

Furthermore, the fact that part of ICL was developed in order to respond to gross violations of human rights norms not only makes these fields complementary but overlapping, and at times ICL discourse supplants HRL as being prioritized over other forms of international intervention.146

Thirdly, like the human rights discourse, the ICL discourse is largely individualistic and opposing collective state sovereignty “when sovereignty appears in [ICL] scholarship, it commonly comes clothed in hat and cape … Generally, [ICL] scholars see sovereignty as the enemy. It is seen as the sibling of realpolitik, thwarting international criminal justice at every turn” 147 This perception restrains the complex role that state sovereignty plays in the historical and institutional level of ICL development and the number of ways in which ICL is the result of political (sovereign) contestations over the determination of statute crimes, ICT’s funding and cooperation with ICL institutions and legal operators.148

As a result, a fourth implication is the ideological assumption concerning the role of state sovereignty. In a human rights context, the protection of individuals is performed under the logic of refraining state power. To that extent, the IHR and IHL norms assume that “the broadest norms are the most progressive, and that any narrowing must be due to self-interested sovereignty”149 ICL discourse

145 Robinson, “The Identity Crisis of International Criminal Law,” 947. See also, Gerhard Werle and Florian Jessberger, “Principles of International Criminal Law,” 3rd edition (Oxford, United Kingdom ; New York, NY: Oxford University Press, 2014), 40–41. 146 At the discursive level, for Schwöbel the problem resides in the lack of critical reflection concerning the consequences of the hierarchization of ICL over other IHL regimes and the prioritization of individual criminal responsibility over state responsibility in addressing human rights violations. See, Christine Schwöbel, “The Comfort of International Criminal Law,” Law and Critique 24 (2013): 169–91. 147 Robert Cryer, “International Criminal Law vs State Sovereignty: Another Round?,” The European Journal of International Law 16, no. 6 (2006): 980. 148 Ibid., 989. 149 Robinson, “The Identity Crisis of International Criminal Law,” 961. Michelle Farrell, “Critique, Complicity and I,” in “Critical Approaches to International Criminal Law: An Introduction” (New York: Routledge, 2014), 104–5.

incorporates the same logic, often referring to human rights law and jurisprudence in order to broaden the interpretation of the applicable statute.150

The specificity of ICL discourse is that liberal legalistic practices are not deployed through an authoritarian or “illiberal” narrative (e.g. that individual rights must be sacrificed to serve state or societal goals), but rather through a liberal human rights narrative, and hence they are usually accepted and absorbed into the system without further questioning.151 In particular in connection with the selection of defendants, liberal legalism in ICL is translated in the formalization of five categories of principles that aim to constrain and regulate “prosecutorial charging discretion”152, such as: equality,153

150 As discussed by Swart and exemplifying the uses of the notion of customary international law as a ICL source, in Ojdanić, the ICTY trial chamber emphasized that the power to convict an accused of any crime “depends on its existence qua custom at the time this crime was allegedly committed.” Trial Chamber-ICTY, IT-05-87-PT. Decision on Ojdanić’s motion challenging Jurisdiction: indirect co-perpetration (2006). However – as Swart further shows– the Appeal chamber has often articulated the determination of custom by induction stating the rule first and then explaining a subsequent element of state practice. Quoting the trial chamber in Kupreškić, albeit the chambers indicated that state practice did not support the legality of reprisal nonetheless, the trial chamber stated “Admittedly, there does not seem to have emerged recently a body of State practice consistently supporting the proposition that one of the elements of custom, namely usus or diuturnitas has taken shape. This is however an area where opinio iuris sive necessitatis may play a much greater role than usus as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent.” ICTY, IT-95-16-T. Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Josipović, Papić & Šantić - Trial Judgment, 527 (2000). Swart, “Judicial Lawmaking at the Ad Hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation,’” 463–64. See also, Robinson, “The Identity Crisis of International Criminal Law,” 942. Björn Elberling, “The Defendant in International Criminal Proceedings: Between Law and Historiography” (Oxford ; Portland, Ore: Hart Publishing, 2012), 9–10. Tor Krever, “International Criminal Law: An Ideology Critique,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, May 6, 2013), http://papers.ssrn.com/abstract=2261148. 151 Darryl Robinson, “The Identity Crisis of International Criminal Law,” Leiden Journal of International Law 21, no. 04 (December 2008): 931. 152 Margaret de Guzman and William A. Schabas, “Initiation of Investigations and Selection of Cases,” in “International Criminal Procedure. Principles and Rules,” ed. Goran Sluiter et al. (Oxford: Oxford university press, 2013), 166–67. 153 Art. 21 (1) (4) ICTY statute

non-discrimination,154 impartiality,155 independence156 and sufficiency of evidence.157

The interplay between liberal legalism and these categories implies that in situations of the affectation of procedural guarantees, the results are curtained off from the ICL discourse similarly to communitarian or normative arguments. This is observable at the level of the justification where the constant and contradictory shifting between descending (communitarian/normative) and ascending (individual/ positivist) patterns of justifications elevates or downplays normative hierarchy in relation to the state freedom.158 The ascending pattern of justification also corresponds to the individual autonomy [of the defendant] and it is precisely in these types of arguments where the defendant’s procedural safeguards are articulated and downplayed. The ICL discourse frames these principles under trial-form deliberations of sources, process and substance, obscuring the external influences and political choices intervening in indictment policy e.g. the Security Council’s indirect involvement in the form of withholding OTP funding or the decision not to investigate the NATO bombing in Kosovo due to the lack of NATO’s member cooperation with providing intelligence information).159 The appeal to neutrality of the ICL discourse then locks political deliberations into a moment extrinsically to the trial process itself therefore assuming that “if the neutrality of the legalistic trial and its formal procedures could be safeguarded, the trial would remain free of, and even a suitable check on, politics”.160

1.4.3.2 Rejection of the ‘domestic analogy’

The domestic analogy corresponds to the assertion that principles and experiences of individuals can be applied in inter-state relations. It is defined as an analogical

154 ICTY, IT-96-21-A. Prosecutor v. Delalić, Mucić, Delić & Landžo - Appeal Chamber Judgment, 610–11 (2001). 155 Art. 13, 21 (1) ICTY statute 156 Art. 16 (2) ICTY statute 157 Art 19 (1) ICTY statute 158 See section 1.4.1.2 II) 159 See chapter three. 160 Krever, “International Criminal Law,” 127.

reasoning whereby “a given proposition which holds true domestically, but whose validity is a yet uncertain internationally, will also hold true internationally”.161 The analogy and its multiple manifestations have been intensively debated in the disciplines of international law and international relations.162 Analogical reasoning has been specially used to argue that the conditions of social order among individuals are similar to those of social order between states, thus legitimating that “institutions of domestic society [can be] … reproduced on a universal scale”.163 But, while international relations scholars have warned about its incorporation, developing a strong scholarly tradition against it,164 the application of domestic legal experience to international law is a very common condition developed under three variants: institutional domestic analogies, practice-related correspondences and through the transferring of values. 165 As a result, assumptions concerning the “nature of law” from the theory or practice of municipal or domestic law have been transplanted to the environment of international law without a diligent theorization, under the premise that the international world is like the national, so that legal institutions [and doctrines] “may work there as they do in our European societies”.166 Its uses have multiple flaws, primarily because the analogy as such has not logical causation, so the proposition’s validity requires substantiation with reference to

161 Hidemi Suganami, “The Domestic Analogy and World Order Proposals” (Cambridge University Press, 1989), 24. 162 Hersch Lauterpacht, “Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration” (Union, N.J: The Lawbook Exchange, Ltd., 2002). Hedley Bull, “The Anarchical Society. A Study of Order in World Politics,” 3rd ed. (Basingstoke: Palgrave Macmillan, 2002). Suganami, “The Domestic Analogy and World Order Proposals.” Anthony Carty, “The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in International Affairs” (Manchester: Manchester University Press, 1986). Koskenniemi and Leino, “Fragmentation of International Law?” 163 Hidemi Suganami, “Reflections on the Domestic Analogy: The Case of Bull, Beitz and Linklater,” Review of International Studies 12, no. 02 (April 1986). 164 Suganami, “The Domestic Analogy and World Order Proposals, ” chap. 1. 165 Suganami, “Reflections on the Domestic Analogy,” 152. 166 “And we read international law in the image of our domestic legalism: multilateral treaties as legislation, international courts as an independent judiciary, the Security Council as the police.” Martti Koskenniemi, “International Law in Europe: Between Tradition and Renewal,” The European Journal of International Law 16, no. 1 (2005): 122.

domestic phenomena without considering the specificity of the international system.167 The ICL discourse is plagued by analogical transplantations and extensions of domestic criminal law and procedures, prominently derived from common law and the continental (French) legal system.168 These domestic analogies play a role in different aspects of ICL discourse such as: the categorical definition of “international crimes”, in the structure, modalities, rules and methodologies of the international criminal process; and in the justification for the uses of criminal law in international arenas.169 As such, four main problems are apparent from the use of analogies; firstly, public international law is not (and cannot be) an institutionalized legal system. In this regard, international law cannot produce an institutionalized form of social control as the one harvested by the judiciary in a domestic legal system.170 This goes in line with the often-cited problem among international and criminal legal scholars concerning the assimilation of two very different legal fields such as public international law and domestic criminal law171 Furthermore, this lack of

167 Suganami, “The Domestic Analogy and World Order Proposals,” 25. 168 Ambos makes the point concerning influences in ICL “general part”, Kai Ambos, “La construcción de una parte general del derecho penal internacional,” Revista Penal 17, no. 17 (2006): 11. Specially, Larissa van den Herik and Carsten Stahn, “The Diversification and Fragmentation of International Criminal Law” (Martinus Nijhoff Publishers, 2012), chap. 18 and 23. See for an example of analogical transplantations in common law, Stephanos Bibas and William W. Burke-White, “International Idealism Meets Domestic-Criminal-Procedure Realism,” Duke Law Journal 59, no. 4 (January 2010): 637–704. 169 In relation to international crimes, Edward Wise, “International Crimes and Domestic Criminal Law,” DePaul Law Review 38, no. 4 (June 1, 1989): 926. Concerning process, Mark A. Drumbl, “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity,” Northwestern University Law Review 99, no. 2 (2005): 566. And in relation to the use of domestic analogies for justification, Tallgren, “The Sensibility And Sense of International Criminal Law.” 170 Jason A. Beckett, “The Hartian Tradition in International Law,” Journal Jurisprudence 1 (2008): 68–67. 171 To name a few, these problems concern the lack of a monolithic ‘international community’ comparable to the sort of community that generates national criminal law and as such could safeguard ‘universal’ interests, the misrepresentation of the collective nature of ICL crimes, the equivocal portrayal of war criminals as ‘deviants’ from social norms, the overwhelming representation of western legal systems in ICL discourse or the incompatibility of common and civil law traditions to address complex post war ‘macro criminality’. See for instance, Wise, “International Crimes and Domestic Criminal Law.” Robert Sloane, “The Expressive Capacity of International Punishment,” August 20, 2009, http://lsr.nellco.org/columbia_pllt/06100/. Ambos, “Enjuiciamiento de Crímenes Internacionales En El Nivel Nacional E Internacional: 51

institutionalization creates a form of organization with competing normative orders and the absence of a single source of normative validity,172 therefore there are no courts (of compulsory and general jurisdiction) that could distinguish ‘winning and losing’ arguments in the vein discussed by Koskenniemi and Kennedy concerning radical indeterminacy.173 Secondly, the ICL discourse overlooks important differences in national criminal legislations, control techniques, methodologies, dogmatic and terminological– specific translations that have neither proper modelling nor forms of incorporation at the international level.174 Thirdly, the acceptance of analogic reasoning obscures the feature of ‘radical indeterminacy’ and the problem of self-referentiality between sources, substance and process (described by Kennedy as the main characteristic of international legal discourse). The implication is that the search for ‘what the law is’ is always already implicated in construction of the law itself, because there is no determinate legal standard that could avoid the opposing patterns of justification. As such, the reconstruction of the legal system becomes at the same time also a construction of the legal system.175 Lastly, domestic analogies operate without the assessment of the complex political and legal arraignments that allow ICT’s to become operative on their essential tasks through proactive political liaisons on the international arena and across sovereign states. This fact downplays the importance of “extra-legal”

Entre Justicia Y Realpolitik.” Tallgren, “The Sensibility and Sense of International Criminal Law.” Martti Koskenniemi, “Between Impunity and Show Trials,” Max Planck Yearbook of United Nations Law 6, no. 1 (2002): 1–32. Robinson, “The Identity Crisis of International Criminal Law.”Kamari Maxine Clarke, “Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa,” 1st edition (Cambridge ; New York: Cambridge University Press, 2009). Sarah Nouwen, “Justifying Justice,” in “The Cambridge Companion to International Law, ” ed. James Crawford and Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 327–51.Daniel R. Pastor, “Contrariedades Actuales Del Derecho Penal Internacional,” in “Intervención Delictiva Y Derecho Penal Internacional. Reglas de Atribución de La Responsabilidad En Crímenes Internacionales,” ed. Alicia Gil Gil (Madrid: Dykinson S. L, 2013), 55–68. 172 Koskenniemi and Leino, “Fragmentation of International Law?,” 558. 173 Beckett, “The Hartian Tradition in International Law,” 69. 174 Carl-Friedrich Stuckenberg, “Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht: Versuch einer Elementarlehre für eine übernationale Vorsatzdogmatik” (Walter de Gruyter, 2007), 30–39. 175 Beckett, “The Hartian Tradition in International Law,” 68–69. Further, Koskenniemi, “The Politics of International Law.”

undertakings necessary for ICL performances and the implication of these practices in ICL discourse.176

1.4.3.3 Contribution of CAICL perspective

The topic of selectivity in ICL practice has not been the subject of a critical theorization from a CILT analysis. Approaching selectivity though a CAICL scrutiny introduces three important elements to the scholarly debate. Firstly, CAICL maintains that international [criminal] law is a unified discourse with no boundaries between theory, doctrine and diplomatic practice and thus, with no division between Rechtswissenchaft as oppose to Rechtspolitik.177 This perspective is particular beneficial because advocating the transcendence between the legal and extra-legal division allows for a further elaboration into how and in which manner extra-legal aspects are inserted and have a visible effect into ICL practices. Secondly, the notion of critique promoted by CAICL and presented in this study perceives selectivity as the result of institutional and structural bias, this is to say as a fundamental feature of ICL in general. Therefore the notion itself, and the forms by which it is constituted, are not perceived as “marginal or exceptional, but endemic, consistent and structural”.178 This determines that selectivity is questioned looking beyond the constraints of ICL institutional and relational prescriptions, instead emphasizing in what way it is actually develop in indictment policy practices. Thirdly, in considering a critique that also revises policy considerations in the form of soft-law (guidelines, reports, standards for implementation, etc.) it is possible to have a broader overlook to normative parameters that albeit not refer to as ICL influence deeply decision-making processes and have an impact on the issuing of an indictment.

176 Hagan, Levi, and Ferrales, “Swaying the Hand of Justice,” 590. As Koskenniemi has observed, international legal discourse is politically open-ended which allows for the incorporation of domains ‘outside’ the legal framework. See especially, Koskenniemi, “What Is International Law For?” 177 Bernstorff, “Sisyphus Was an International Lawyer,” 1017. 178 Beckett, “Critical International Legal Theory.”

1.5 Research concepts

1.5.1 Non-legality and soft-law Traditionally, CILT has not addressed non-legality as a unified phenomenon but through the prism of two related topics, namely legal managerialism and deformalization.179 The idea of legal managerialism was approached by Koskenniemi and (to lesser extent) by Kennedy, who defined it as the view or mindset that perceived legal practice as focused on coordinating relations between transnational legal regimes (such as trade law, ICL, HRL, etc.). The managerial view would then account for a legal professional instrumentalised to the needs of the regime, who would therefore reproduce the rationality of each establishment in its external relations.180 Consequently, legal regimes would refer to contextual factors or functional experts refraining from rule setting while operating to attain optimal results on a case-by case basis. Such references to external solutions made legal disputes appear as ‘management problems’ in which the proper response would be primarily technical or economic, subjecting rights and obligations to adjustment for expert optimization.181

This context will advocate for a departure from legal formalism182 . The notion of deformalization referred both to situations whereby “law retreats solely to the

179 In this instance, “non-legality” is used following the work of Fleur Jhons explained below. For a general discussion on legal theory and non-legality. Victor V. Ramraj, Emergencies and the Limits of Legality, 1st ed. (Cambridge University Press, 2011).Hans Lindahl, “Fault Lines of Globalization: Legal Order and the Politics of A-Legality,” 1 edition (Oxford, United Kingdom: Oxford University Press, 2013). 180 Martti Koskenniemi, “The Fate of Public International Law: Between Technique and Politics,” in The Politics of International Law (Oxford /Portland: Hart Publishing, 2011), 331– 61.Martti Koskenniemi, “International Law: Constitutionalism, Managerialism and the Ethos of Legal Education,” European Journal of Legal Studies 1, no. 1 (2007). Kennedy, “The Disciplines of International Law and Policy.” 181 Koskenniemi, “The Fate of Public International Law: Between Technique and Politics,” 339,344. 182 Generally, Duncan Kennedy, “Legal Formalism,” ed. Neil J. Smelser and Paul B. Baltes, International Encyclopedia of the Social and Behavioral Science 13 (2001): 8634–38. Additionally, for a description of formalism as law-ascertainment Jean D’Aspremont, “Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules, ” Reprint edition (Oxford: Oxford University Press, 2013), 12–14.

provision of procedures or broadly formulated directives to experts and decision- makers for the purpose of administering international problems by means of functionally effective solutions and “balancing interests”183 or as a “move away from formal-law ascertainment and the resort to non-formal indicators to identify legal rules”.184

Both legal managerialism and deformalization were criticised by Fleur Johns as presenting a streamline version of international legal discourse by reducing the complexities of international legal work, in this way situating ILW within formal or anti-formal vocabularies that would simply re-describe it as the “turn to deformalized decision making by experts seeking to advance this or that political goal”.185 Taking forward the observation by CILT scholars that extra-legal normative codes (political, moral, religious, etc.) were capable of being “fully inside” international law discourse, Johns focused on the notion of non-legality. The author depicts the term as involving the unruly aspects of law, this is to say, “instances of certain phenomena being characterised as outside law, lacking law or routinely opposed to law”186 in this context, legality and law are conceptualized as exchangeable categories defined by the normative practices of legal professionals – what lawyers say and do– in their disciplinary and personal projects.187

183 Martti Koskenniemi, “Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization,” Theoretical Inquires in Law 8, no. 1 (2007): 13. 184 Jean D’aspremont, “Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation” (Edward Elgar Publishing Ltd, 2015), 66. As such, deformalization would imply a path where “common” juridical values would become hierarchically more important than sovereignty due to their intrinsically own value and not for the reason of their inscription in the texts of positive law. See, Emmanuel Jouannet, “Universalism and Imperialism: The True-False Paradox of International Law?,” The European Journal of International Law 18, no. 3 (2007): 389. Additionally, Jean D’Aspremont, “The Politics of Deformalization in International Law,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, October 12, 2011), http://papers.ssrn.com/abstract=1942775.2006. Martti Koskenniemi, “‘The Lady Doth Protest Too Much’ Kosovo, and the Turn to Ethics in International Law,” The Modern Law Review 65, no. 2 (2002): 159–75. 185 Surabhi Ranganathan, “Strategically Created Treaty Conflicts and the Politics of International Law” (Cambridge University Press, 2014), 99. See especially, Johns, “Non- Legality in International Law, ” chap. 1. 186 Johns, “Non-Legality in International Law”, 8. 187Johns’ terminology incorporates five categories to explain non-legality forms: illegality is defined as “the legal crafting of that which exceeds suppression by, is forbidden by, or is defiant 55

Although these “unruly areas” would seem not governed by law or not effectively governed , Johns observed that within international law discourse, legal professionals (and other experts) continually “articulate, for and through international law, a jurisdiction bounded, as the case might be, by one or more before(s) and after(s), below(s) and above(s), against(s) and/or despite(s) [law]” 188 To that extent, the space of non-legality does not emerge as a blank vacuum outside law but more importantly, it functions as a central structuring device of international legal work. In all its variants, international law discourse is “vitally concerned with making non-legal phenomena” as a negative space beyond its reach in numberless heterogeneous ways such as law-like international protocols for disaster management, “internal” regulation of detention camps like Guantánamo Bay, private contracting in transnational finance, or international assessment reporting in intergovernmental panels.189 In relation with this research, the spectrum of non-legality will become apparent by the other normative forms that formally or informally regulate indictment policy (such as the funding frameworks from UN, the Dayton agreement, or the EU directives for Balkan states accession). In this light, Johns’ contribution allows for an added questioning not only into what is labelled “real law” vis-à-vis non-legalities prescriptions but more importantly, also furthers the examination into the legal actions that depart and are influenced by those other spaces usually catalogued as outside and opposed to formal law.

of, international law”; supra-legality is considered “the practice of consigning certain phenomena [political, biological, environmental, religious, etc] to exogeneity in the sense of their surpassing international legal grasp or comprehension, rather than being carved out of violation of international law”; infra-legality is defined as “the practice of relegating certain issues, experiences and elements to international law’s margins, as the natural, the incidental, or the unworthy of direct notice”; pre- or post-legality refer to “the practice of making things– particular actions, agents and questions– come to stand immediately before the operation of international law, or in the wake of its operation”, and extra-legality as “the legal construction of that which is understood to lie outside the province of international law”. Ibid., 10–11. 188 Ibid., 8. 189 such as IPCC on climate Change. Ibid., chap. conclusion.

Soft-law The exploration between the normative force of State law and other social norms and institutions is a contribution of socio-legal studies. In international legal scholarship hard law refers to the “legal norms that are relatively clear and binding” such as codified treaties. The notion of soft-law is made in reference to international legal materials that are weak in their obligations but which could be nonetheless legally binding. 190 For the purpose of this research, soft-law is defined as all ‘legally non-binding’ normative products, e.g. drafts, resolutions, expert opinions, guidelines, standards, that regulate critical decision-making made by conventional (UN, SC, international organizations) and non-conventional policymakers alike experts, consultants, managers, activists, etc.191

1.5.2 Indictment policy

By following a theoretical tradition that grasps international law as the normative practice of legal professionals in the completion of a project, this study proposes a notion of indictment policy with reference to the engagement of legal actors with legal work in connection to the production of an accusatory document, this is to say an indictment. 192

From this perspective, operations and actions which would not necessarily be seen as contributing to the production of an accusatory document can be incorporated into the purview of analysis (e.g. cooperation on arrest warrants). There are two reasons for this approach. Firstly, from the revision of OTP indictments and other sources such as press statements, academic articles, conference presentations it became apparent that OTP prosecutors understood indictment policy broadly, as being composed by a heterogeneous body of different elements that “needed to

190 This differentiates international legal positioning in relation to soft-law. As in general, other legal fields define soft-law as non-binding regulations. Fleur Johns et al., “Law and the Mekong River Basin: A Socio-Legal Research Agenda on the Role of Hard and Soft Law in Regulating Transboundary Water Resources,” Melbourne Journal of International Law 11 (2010): 8–9. 191 See further, Franz von Benda-Beckmann, Keebet von Benda-Beckmann, and Julia Eckert, “Rules of Law and Laws of Ruling: Law and Governance between Past and Future,” in “Rules of Law and Laws of Ruling, ed. Keebet von Benda-Beckman and Julie Eckert,” New edition (Farnham, Surrey, England ; Burlington, VT: Ashgate, 2009), 1–29. 192 See further, MacDonald, “International Law and Ethics After the Critical Challenge, ” 73– 76.

be represented as forming a coherent and intelligible programme designed to achieve the specific objectives”.193 Secondly, in the process of completion of indictments as a policy, different outcomes were obtained, sometimes contradicting the OTP predecessor’s policy, sometimes advancing it or overlapping other aims in it. Indictment policy itself was always unsettled and unfinished “subject to revisions and inflections, which opened up a politics of translation in which there are always possibilities at stake.”194

What was relevant for this research is the manner and the way by which different actors and elements influenced (formally or informally) decisions over who to prosecute. From the critical perspective, the indifferentiation between legal work and ‘the law’ implies that when extra-legal normative codes are decisively influential, these political, financial, expediential, administrative or diplomatic considerations are incorporated into juridically relevant facts via legal interpretation.195

The Indictment as a policy document The indictment is the primary accusatory document that gives the accused notice of the charges allowing for the preparation of his or her defence. The fundamental requirement is that it needs to be sufficiently clear to enable the accused to be informed promptly and in detail of the nature and cause of the charge.196

193 John Clarke et al., “Making Policy Move: Towards a Politics of Translation and Assemblage” (Policy Press, 2015), 15–16. 194 Ibid. 195 Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument,” 566–73. Sarah Nouwen made this observation taking as examples the prosecutions in Nuremberg, Tokyo and the ICC in reference to legal equality. Sarah Nouwen, “Legal Equality on Trial: Sovereigns and Individuals before the International Criminal Court,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, March 26, 2013), http://papers.ssrn.com/abstract=2239644. 196 Hakan Friman et al., “Charges,” in International Criminal Procedure: Principles and Rules, ed. Goran Sluiter, Hakan Friman, and Suzannah Linton (Oxford, United Kingdom: Oxford Univ Pr, 2013), 385–88. Before the ICTY the form of the indictment is governed primarily by rules 18 (4), 21(4) A of the statute and RPE 47 (C). Article 18 (4) Investigation and preparation of indictment Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber.

Accordingly, the nature of the charge is the precise legal qualification of the offence and the cause of the charge refers to the underlying facts.197 Legally, the indictment strategy involves three distinct but overlapping considerations: who to target, the scope of the indictment, and the timing of the indictment.198 This study will focus primarily on indictment policy decisions concerning the selection of defendants. Factors regarding timing will be addressed only when they are of key importance in revealing overall policy frameworks (such as for instance the indictment of Nikolić during Goldstone’s tenure).199 Beyond the technical requirements of an indictment rest not only questions of ICL application but policy considerations, which are the primary focus of this study. Therefore, in this research, indictments are taken as a constitutive product of the OTP policy-process, i.e. as policy-artefacts. By this understanding, indictments are a documentary nexus of a set of legal practices (from the OTP) and non-legal practices (from other actors such as UN, SC, NATO, etc.), in the sense portrayed by the legal anthropological account of Freeman and Maybin.200

Thus, an indictment understood as a policy document allows conceiving it also as a product of the different extra-normative codes (political, economic, administrative, etc.) that influence its making. Documents and practices “entail

Article 21 (4) Rights of the accused In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; Rule 47 (C) Submission of Indictment by the Prosecutor The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged. 197 Ibid., 385. 198 The legal requirement of an indictment takes three forms: 1) standard of proof; 2) legal sufficiency and 3) specificity. In the ICTY the indictment is also the arrest warrant. See further, Jeffrey Locke, “Indictments,” in International Prosecutors, ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert (Oxford: Oxford University Press, 2012), 606.Ibid., 624–43. 199 See section 3.2 200 Richard Freeman & Jo Maybin, “Documents, Practices and Policy,” Evidence & Policy: A Journal of Research, Debate and Practice 7, no. 2 (May 19, 2011): 164–165.

each other, they are mutually constitutive: practices generate artefacts, which in turn structure practices. The artefact serves as an embodiment of practice, which makes that practice knowable by others, repeatable over time”.201

1.5.3 Selectivity and non-legality

Selectivity is defined in this research as the body of institutional and structural bias shaped by decision-making processes premised on power that enables [or not] prosecution. In this context, prosecution is assumed to mean exclusively the act of issuing an accusatory document, namely the indictment, rather than the exercise of prosecutorial discretion.

Selectivity is constituted by a combination, conflation and collision of non- legality practices. Regarding non-legality practices, selectivity is present at the practice level or regime definition (for instance within ICL) and at the systemic or regime friction level (in the cooperation or collision between regimes, ICL vs. international administration law, or ICL vs. UN budgeting proceedings).202

All decision-making concerning the issuing of indictments is the result of selectivity, there is no differentiation between political and legal decision-making. This sort of understanding breaches the distinction between the rule approach and the policy approach in international legal theory.203 For instance as summarized by Higgins, a political decision-making is described by decisions made by persons without authority or with authority “but on the basis of expediency or pragmatism”. In opposition to this, legal-decision making reflects authorized persons or organs in appropriate forums and within the framework or certain established practices and rules.204

Drawing on Johns, extra-legality is not identified with the transgression from law, which is why extra-legal areas are not categorized as “illegality” but are perceived

201 Ibid., 165. See also, Cris Shore, Susan Wright, and Davide Pero, “Policy Worlds: Anthropology and the Analysis of Contemporary Power” (Berghahn Books, 2011), chap. 1. Kennedy, “The Disciplines of International Law and Policy,” 27. 202 Explained in chapter five. 203 Rosalyn Higgins, “Problems and Process: International Law and How We Use It,” Reprint (Oxford; New York: Oxford University Press, USA, 1995), chap. 1. 204 Rosalyn Higgins, “Policy Considerations and the International Judicial Process,” International & Comparative Law Quarterly 17, no. 01 (January 1968): 58–59,

equivocally as the opposite of a certain legal regime. When selectivity is evaluated from the purview of (extra-legal vacuums) that compose it, selectivity resurfaces as a highly normative space filled with content.

The notion of institutional biases is taken from Koskenniemi as comprising the legal practices that are catered to special interest and special ethos therefore predetermining and “affect[ing] the outcomes that are being produced in the international world.” 205 Accordingly, international institutional regimes of “law” [and I will argue non-law] are based on the preferences for certain vocabularies and forms of knowledge that obscure the contingent nature of the choices made in the regime. As such, “the vocabularies act as ‘ideologies’ in the technical sense of reifying, making seem necessary or neutral something that is partial and contested.”206

By this account, once a political situation ‘is incorporated’ into a regime (e.g. trade law, or IHL or ICL) the same situation is redefined as a problem exclusively in the idiom and preferences of that regime. The example of the different interpretation of the “effective control” doctrine by the ICJ and the ICTY in the Nicaragua case offers an example of how this works concretely. In Koskenniemi’s account this is the reason why the most important political conflicts in the international world are usually portrayed and articulated as conflicts of jurisdiction and applicable law.

Selectivity is the consequence of the conflict of a variety of structural biases that affects OTP decision-making once OTP indictment policy enters the definitional frameworks of ‘other’ regimes.

The conceptualization of power that I suggest here draws from the non- behavioural perspective of Steven Lukes, known as the three dimensional approach. As identified by him, power not only conveys the observable behaviour, this is to say, the decision making process on issues “over which there is a conflict of subjective interests” made evident in policy preferences –a one-dimensional approach.207 Nor is power exclusively identifiable in the opposite cases of non-

205 See especially, Martti Koskenniemi, “The Politics of International Law – 20 Years Later,” European Journal of International Law 20, no. 1 (February 1, 2009): 7–19. 206 Martti Koskenniemi, “The Politics of International Law – 20 Years Later,” European Journal of International Law 20, no. 1 (February 1, 2009): 20. 207 Steven Lukes, “Power. A Radical View,” 2nd rev ed. (Houndmills, Basingstoke, Hampshire : New York: Palgrave Macmillan, 2004), 19 and chap 3.

decision making, described by Lukes as involving the way in which “decisions are prevented from being taken on potential issues over … observable conflict of subjective interests”208, what he termed the two dimensional perspective.

Both first and second dimensional approaches are insufficient, according to Lukes, because they focus on decisions consciously made by individuals between alternative possibilities. Power can also take place in the bias of a system sustained through “the socially structured and culturally patterned behaviour of groups, and practice of institutions”.209 Accordingly, the three dimensional view accounts for operations that are neither consciously made nor the intended result of individual choices 210 incorporating cases in which agents acquiesce or act without an identifiable source of intervention through conflict.211

Arguably, there are multiple levels of power relations acting upon selectivity: power relations among different actors (inside and outside the ICTY as an institution); power relations within powerful states and other stakeholders and power struggles from the issuing of indictments.212

1.6 Methodology

As pointed out before, if taken as a whole, CILT includes an contradictory umbrella of methods. For various scholars within the CILT approach, ‘method’ as such does not reflect a series of techniques to achieve a set of conclusions but a shared understanding of certain ‘critical’ canons.213 To that degree, CILT driven

208 Ibid., 22,25. 209 Ibid., 26. 210 Ibid., 25. 211 As Lukes writes, the three dimensional view of power “allows for consideration of the many ways in which potential issues are kept out of politics ... this moreover, can occur in the absence of actual, observable conflict ... What one might have here is a latent conflict, which consist in a contradiction between the interest of those exercising power and the real interests of those they exclude” Ibid., 28. Further, Keith Dowding, “Three-Dimensional Power: A Discussion of Steven Lukes’ Power: A Radical View,” Political Studies Review 4 (2006): 136–37. 212 Hagan, Levi, and Ferrales, “Swaying the Hand of Justice.” 213 Refer to section 1.4.1.2 above. See specially, Koskenniemi, “Letter to the Editors of the Symposium.”

research is largely interdisciplinary. This study as situated within this critical perspective is close to an interdisciplinary overview of selectivity.

The research has drawn on CILT as well as two neighbouring disciplines: international relations and legal anthropology. International relations have provided a profound impact in terms of the way the research approaches the role and influence of extra-normative codes negotiated and settled through diplomacy, peace building institutions and UN administration. From this undertaking, deliberations concerning the formulation of indictment policy take into account the function of contextual factors in shaping OTP daily work. For chapters concerning the historical description of events and diplomatic conferences, I have also reviewed historical materials predominantly with an international relations standing.

Legal anthropology has been extremely useful to assess the notion of soft law as well as the functioning of bureaucracy in international institutions and the interrelation between international law and policy-making.

Description

Parts of chapters two and three, and all of chapter four have been written using the technique of ‘description’. This has been done in order to close the gap between practice and critique. The idea is to pay attention to the institutional routine practices of international administration while considering that they are a representation of every-day forms of selectivity.

In this way, ‘mundane’ products such as reports, standards, administrative regulations or guidelines make it possible to map a series of connections or forms of relations between elements as the necessary condition for producing ‘theory’.214

Literal, systematic and teleological The critical study of selectivity proposed in this research combines the analysis of primary sources and secondary sources to assess ‘law’ beyond ICL frameworks. Where references have been made to the ICTY statute and the Rules of Procedure and Evidence and the UN Charter or the UN General Assembly rules of procedure, the study has pursued a literal, systematic and teleological approach.

214 See especially, Anne Orford, “In Praise of Description,” Leiden Journal of International Law 25, no. 03 (September 2012): 609–25.

I have also included the analysis of relevant scientific literature within the topic as well as the evaluation of primary and secondary sources.

1.6.1 Sources Primary and secondary sources The primary research data for this study is the examination of OTP indictments. Over the combined tenures of Richard Goldstone, Louise Arbour and Carla Del Ponte, the Office of the Prosecutor indicted a total 161 persons. This research is based on the analysis and review of 137 indictments (including the amendments) issued between November 1994 and March 2005. My primary sources have also included the autobiographical works of the three chief prosecutors, as well as interviews, press statements, documentaries, presentations and academic publications authored during and after their respective tenures. On a few occasion I have also drawn on interviews and biographical material authored by OTP staff, as well as former diplomats and military personnel deployed in the Balkan region, who had close interactions with OTP investigators and prosecutors. The study also analyses a variety of soft-law materials such as UN reports, OTP guidelines and technical data published by UN agencies including the Fifth Committee (Administrative and Budgetary Committee of the United Nations General Assembly), the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and the United Nations Interim Mission in Kosovo. In addition, a variety of UN regulations, press briefings and press statements were considered. Secondary material has included newspaper articles, editorials, documentaries and literature addressing the work of former OTP prosecutors.

1.6.2 Quasi-ethnography

This research has also been informed by a series of practical day-to-day observations I made during my work in the OTP section at the ICTY between January and April 2006.

Although I did not carry out formal interviews as part of my work at the OTP, I witnessed a variety of political, economic and diplomatic problems after former President Slobodan Milošević’s death in March 2006.

The notion of quasi-ethnography refers to a particular type of research within CILT that seeks to describe what people do in some particular place and the meanings they ascribe to the action. This does not imply the use of ethnography or case-method typically used in legal or political anthropology but the construction of subjects “by simultaneously constructing the discontinuous context in which they act and are acted upon”.215

The quasi-ethnography in question is premised on the elucidation of relationships by practices of references for instance displayed in autobiographical work, interviews and press statements of the OTP prosecutors. These materials are treated as knowledge practices “associated with the immanent, critical investigation of the patterned activities and often mundane work in which social knowledge-makers engage, whether intentionally or unintentionally.”216

1.7 Outline of the thesis

The thesis is organized in five main chapters. Chapter 2 presents a political historical overview of the Balkan wars and evaluates the formation of the 1992 commission of experts that preceded the ICTY. Critical theory implies a form of historization, not in terms of historical legal analysis but to the extent that certain phenomena should be contextualized. Therefore this chapter takes a closer look at the way the tribunal was constituted in connection with the conflict it was meant to address. Chapter 3 combines a descriptive approach and a political-normative perspective in order to bring into light the external influences and manoeuvres that were running parallel and collided with the development of indictment policy during Goldstone, Arbour and Del Ponte’s terms. Taken together, both approaches allow for a wider view of how indictment policies were entangled with financial, administrative, diplomatic and geopolitical deliberations, which later shaped the selection of defendants. The chapter includes an evaluation of the formal considerations and substantive goals of OTP prosecutors. In addition, it provides

215 The term quasi-ethnography is taken from Johns, “Non-Legality in International Law,” 22. See for instance specially on situational analysis, T. M. S. Evens and Don Handelman, eds., “The Manchester School: Practice and Ethnographic Praxis in Anthropology” (New York: Berghahn Books, 2006). 216 Johns, ”Non-Legality in International Law”, 23.

an overview of the policy decisions of each OTP’s tenure, highlighting the configurations of each prosecutor strategy. Chapter 4 then seeks to move the discussion from the constraints of indictment policy reflected through ‘external’ consideration to interlink it with forms of normativity that are generally curtained off from ICL deliberations such as the budgetary reports of the UN Fifth Committee and ACABQ, the regulations over donations and voluntary contributions and the normative frameworks of peace building in the context of Kosovo. This aims at providing an overlook over the practices of structural biases imbedded in selectivity. On the basis of the findings of preceding chapters, Chapter 5 presents a tentative theorization of selectivity and non- legality. This will include a critical description of international legal argument and the evaluation of selectivity from the levels of practice and regime friction. The final chapter draws together the results of this study. In addition, it suggests four additional lines of further research: Diplomacy’s ‘in’ and ‘out’ selectivity, displacement of authority, soft-law policy and legal order: insiders and outsiders, indictment policy and media legitimation.

II. Background: The break-up of Former Yugoslavia and the creation of the ICTY

Karadžić: That’s good … but what’s going on with the bombing? Milošević: Today’s no good for aviation, there’s a meeting of the European Community.217

2.1 Introduction

The present chapter has two aims, firstly to provide a political historical overview of the Yugoslav wars with regard to Slovenia and Croatia, Bosnia and Herzegovina, and finally Kosovo, and secondly to address the formation of the ICTY from the beginning of the work of the Commission of Experts initiated in 1992. The political historical account is included not only because “history matters” but because the events situate the context of activities of both international and regional actors and the consolidation of the ICTY (and the OTP) through a format of liberal legalism. Contrary to the perception of scholars such as Baas, the constant obstructions that the tribunal faced in order to start its operations not only shows that “law became a euphemism for inaction”218 from the side of the Security Council member states that approved the ICTY statute – but first and foremost that the tribunal itself was formed in order to be dependent on cooperation and external aid regarding every aspect of its operations. As will be shown in Chapter 3, the conflict in the Balkans had an impact on the diplomatic decisions and allowances that the OTP prosecutors were given in a

217 Milošević discusses the war in Croatia, September 1991. Dialog quoted in Adam LeBor, “Milosevic: A Biography” (New Haven: Yale University Press, 2004), 177. 218 Gary J. Bass, “Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, Princeton Studies in International Law (Princeton /Oxford: Princeton University Press, 2000), 215.

variety of contextual, financial, administrative, and political spheres. This chapter will serve to situate the subsequent formulation of indictment policy.

2.2 The Yugoslav wars

The state of Yugoslavia was created after World War I from the remnants of the Austria-Hungarian Empire. The Serbian Kingdom, having previously absorbed Montenegro in 1918, joined with Croatia and Slovenia to create a Pan-Slavic state, which was ruled by the Serbian monarchy. It incorporated Bosnia in 1919.219 In this relatively small geographical area, there were now “several national groups, the adherents of three major religions, diverse cultures, as well as differing levels of economic development and political tradition” grouped together in one country,220 as well as two concurrent orthographic systems. During World War II, Yugoslavia was broken up, with Croatia forming what was called a Nazi-German puppet state.221 Members of the Croatian nationalist Ustasha movement fought Serbs, Jews, Roma, and Croatian partisans. The Serb nationalist Chetniks, in turn, battled the Ustasha movement, and both of them clashed with the ultimately victorious Communist partisans led by Joseph Broz Tito. After the war, Tito and the Communist Party ruled the country with an iron fist and oppressed all forms of nationalism, renouncing hegemony, advocating pluralism and only allowed Yugoslavian nationalism. In 1974 there was a reform of the governmental system in Yugoslavia. A change of constitution allowed for a new decentralization of power. The republics of Yugoslavia and the autonomous provinces of Serbia created a collective presidency, which had eight provincial representatives. The remaining federal government had little control over the economic, cultural, and political policy.222

219 Gerald Toal and Carl T. Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal” (USA: Oxford University Press, 2011), 47. 220 Ivan Simonovic, “The Role of the ICTY in the Development of International Criminal Adjudication,” Fordham International Law Journal 23, no. 2 (January 1, 1999): 440. 221 Michael P. Scharf, “Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg” (Durham, N.C: Brown, 1997), 23. 222 Holm Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”: Eine ungewöhnliche Geschichte des Gewöhnlichen”, 2nd ed. (Vienna: Böhlau Wien, 2014), 212– 216.

Figure 1 Map of the former Yugoslavia.223

223 The Map is published with permission from the United Nations Geospatial Information Section. Source: The Former Yugoslavia, Map no. 3689 Rev.12, June 2007 http://www.un.org/Depts/Cartographic/map/profile/frmryugo.pdf

Following Tito’s death in 1980, the underlying tensions started gradually to surface. Yugoslavia was already on the verge of economic collapse and it all came to an explosive end at the turn of the decade.224 The combination of an economic decline due to programmes of economic liberalization, and restructuring of the state implemented by financial institutions of the World Bank and the International Monetary Fund during the 1970s, 1980s and 1990s, growing centrifugal nationalism, a post-Cold War power vacuum, centuries of tensions and conflicts, as well as dreams of independent statehoods, led to several discrete, but related conflicts. Slovenians, Serbs, Croats, Bosnians, Albanians and Macedonians clashed in a string of conflicts that were to run most of the decade.225 The external factors that led to the wars were also significant. “The collapse of communism in Eastern Europe in 1989, the unification of Germany, and the imminent collapse of the Soviet Union all served to erode Yugoslavia’s political stability. As Eastern European states moved away from communist governments and towards free elections and market economies, the West’s attention focused away from Yugoslavia and undermined the extensive economic and financial support necessary to preserve a Yugoslav economy already close to a collapse. The absence of a Soviet threat to the integrity and unity of Yugoslavia and its constituent parts meant that a powerful incentive for unity and cooperation was removed.”226 In the late 1980s, Slobodan Milošević came to power in Yugoslavia by successfully exploiting the tensions in the region. Transitioning from a Communist background, he began appealing to the populist Serb nationalist sympathies by evoking the memories of past wrongdoings.227

224 Holm Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”: Eine ungewöhnliche Geschichte des Gewöhnlichen”, 2nd ed. (Vienna: Böhlau Wien, 2014), 212– 216.

225 Ibid, 215–17. See also Anne Orford, “Reading Humanitarian Intervention. Human Rights and the Use of Force in International Law” (Cambridge/New York: Cambridge University Press, 2003), 89.

226 National Intelligence Estimate, “The Breakup of Yugoslavia, 1990–1992”, October 31, 2013, https://history.state.gov/milestones/1989-1992/breakup-yugoslavia.

227 Scharf, Balkan Justice, 25.Sundhaussen, “Jugoslawien und seine Nachfolgestaaten” 1943- 2011, 261–63.

He effectively used his supporters to arrange imposing protests in various parts of the country, while undermining the authority of the central Yugoslav government. After winning the presidency in 1988, Milošević began to concentrate Yugoslav power in Serbia and utilized the Serb-Albanian tensions in Kosovo as an example of Serbs being repressed. Already before that, with the 600th anniversary of the Battle of Kosovo as their staging ground, the Kosovo Serbs began riots against the predominantly Albanian-staffed police force and local government, and in an incongruous turn of events asked Milošević for protection against the Albanians by inflating stories of alleged police brutality.228 Supported and boosted by inflammatory reports from Serbian media, Belgrade staged a military intervention by declaring a state of emergency.229 In January 1990, the 14th Extraordinary Congress of the League of Communists broke down. The Serbs had staunchly opposed all reform suggestions from the other states, and Slovenia marched out from the congress, followed by Croatia. This was a warning sign that the disintegration of Yugoslavia was imminent.230 Croatia and Slovenia, who felt threatened by the new Serb-dominated order in Yugoslavia, held elections and promptly declared their independence in 1991. The Yugoslav federal government attempted to forcibly halt the impending breakup of the country, claiming that the two seceding countries were acting against the constitution and that the move was illegal. In order to secure the integral unity of Yugoslavia, the Yugoslav Army was asked to intervene. Belgrade first acted against Slovenia. A short and limited conflict ensued, but it was soon followed by a somewhat longer, and more violent Croatian-Serb conflict. The war reached its most intensive point during the Bosnian conflict, and when the later conflicts in Kosovo and Macedonia began, external actors acted forcefully to end the violence. As the wars progressed, more and more stories of mass killings, expulsion of ethnic groups, torture, rape and other crimes became regular occurrences and were reported by the media.231

228 Tim Judah, “Kosovo. War and Revenge” (New Haven/London: Yale University Press, 2002), 52–55.

229 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten” 1943-2011, 270–76.

230 Toal & Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal”, 57. 231 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten” 1943-2011, 356–57.

2.2.1 Slovenia and Croatia

By early 1990, both Slovenia and Croatia had held free, multi-party elections. Having witnessed Milošević’s actions in Kosovo and fearing a Serb-dominated Yugoslavia, Slovenia’s direct vote for independence passed. The winning party in Croatia was a right-wing party named the “Croatian Democratic Union” (Hrvatska demokratska zajednica, or HDZ). The elections ended the Communist rule of 45 years. The leader of the party was the ultra-nationalist Franjo Tuđjman. HDZ had gained political momentum as a Croatian nationalist response to Serbian propaganda and actions.232

With memories of the Ustashan anti-Serb hatred of WW2, and Belgrade’s propaganda machine in full motion, the Serb minority in Croatia aligned with Serbia. Belgrade had an easy task of persuading its followers of its views after Dubrovnik began installing Croats in positions of power and Serbs were pushed out of their jobs. The Serbian National Council in Knin declared independence from Croatia and announced the creation of the Serbian Republic of Krajina, or “SRK”. Soon the relations between Croatian Serbs and Croats deteriorated. With a sense of urgency, both Slovenia and Croatia began arming their forces. Soon thereafter a Serbian-backed insurgency began.233

The Balkan wars began in Slovenia. Having declared itself independent on 25 June 1991, Belgrade had ordered the Serb-controlled Yugoslavian Army (JNA) to march on Slovenia and to capture a number of border posts. Its ultimate task was to hold Yugoslavia together. Slovenia still saw possibilities of remaining in Yugoslavia, were it not for the growing nationalism. However, after the intervention of Serbia it decided for independence. 234

Slovenia had begun preparing for a conflict, while hoping that the Serbia would soon focus its attention elsewhere.235 The fighting lasted ten days. One reason for

232 Ibid., 292–95.

233 Ibid., 321–24. 234 Robert J. Donia and John V. A. Fine, “Bosnia and Hercegovina: A Tradition Betrayed” (New York: Columbia University Press, 1995), 218–19. Further, Sundhaussen, “Jugoslawien und seine Nachfolgestaaten” 1943-2011, 319–21.

235 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten” 1943-2011, 319–21.

the short conflict was that Slovenia had very few ethnic Serbs236 and that Belgrade’s main pressing concern was Croatia.237

When the Serbs seized the presidency of Yugoslavia, Croatia began its transfer towards independence.238 On 25 June 1991, in a simultaneous move with Slovenia, Croatia declared itself completely independent of Yugoslavia.239 The development was causing concern to many Serbs who lived in Croatia who now saw themselves defined as a minority according to the new Croatian constitution.240 The Serbs in Eastern Croatia’s Krajina province decided to break away and create their own autonomous republic.241 Soon, clashes flared up between local Serb militia and Croatian police.242 The Yugoslav federal government responded by calling out the army against the breakaway republics.243 While the war in Slovenia only lasted a few days, the war in Croatia became a lengthier affair.244 Violence between Serbs and Croatians became more commonplace and Belgrade used the argument of ethnicity ‘to try and protect the Serbs’ as a reason to invade Croatia.245 The US Secretary of the State, James Baker, had told Milošević that the US would not recognise Slovenia and Croatia, and thus gave the Serb leader the impression he had a free hand.246 Soon thereafter the US changed its position and stated that it would accept Croat and Slovene independence if it were achieved peacefully. At the same time, the US spokespersons made it clear that the

236 A 1991 census revealed that 2.5 per cent of the population, or 47,097 people were Serbs. Toal & Dahlman, Bosnia Remade: Ethnic Cleansing and Its Reversal, 70–71. 237 Robert J. Donia & John V. A. Fine, “Bosnia and Hercegovina: A Tradition Betrayed” (New York: Columbia University Press, 1995), 218–219. 238 Scharf, “Balkan Justice”, 26. 239 Ana S. Trbovich, “A Legal Geography of Yugoslavia’s Disintegration” (Oxford ; New York: Oxford Univ Pr, 2008), 212. 240 Ibid., 209. 241 Ibid., 212. 242 Ibid., 215. 243 Ibid., 215–16. 244 Ibid., 216. 245 Scharf, “Balkan Justice”, 25–26. 246 Ibid., 26.

American government did not support the use of force to preserve the integrity of Yugoslavia.247

By now, the JNA’s priorities were to either uphold unity or to capture as much territory as possible from the Croats. In this context, about one third of Croatia came under Serbian control.248

At this point, the UN offered to deploy its peace forces (UNPROFOR) in order to aid with stabilization. The Serbs, who already had conquered territory, accepted. Serbia then focused on other areas.249 Croatia’s independence was recognized by a number of UN member states in 1992, but there were still large areas that were occupied by the Serbs and were supervised by the UN.250 Before these could be reclaimed, the conflict in Yugoslavia spread, because both Serbia and Croatia wanted to break up Bosnia between them.

Croatia’s main political goal was to achieve effective control over its entire territory and to prevent the Croatian minority (about 20 per cent) in Bosnia from being overrun by the other population groups.251 Regarding Serbia, Croatia was biding its time and had started rearming.252

In 1995 Croatia’s government launched “Operation Storm and won back control of western Slavonia and central Croatia from the Serbs.253 In 1996, pressure on Serbian president Milošević forced him to surrender eastern Slavonia, pull out his

247 Matjaž Klemenčič, “The International Community and the FRY/Belligerents, 1989-1997,” in “Confronting the Yugoslav Controversies: A Scholars’ Initiative,” ed. Charles Ingrao and Thomas A. Emmert, Second edition (Washington, D.C. : West Lafayette, Ind: Purdue University Press, 2012), 163.

248 Scharf, “Balkan Justice, ” 26. 249 Ibid., 27. 250 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011,” 328–29. 251 Donia and Fine, “Bosnia and Hercegovina,” 227–28. 252 Steven L. Burg and Paul Shoup, “The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention” (M.E. Sharpe, 1999), 91. 253 Misha Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers” (London/New York: Granta Books, 2012), 650–51.

troops, and Croatia finally won back this region in 1998. UN Peacekeepers only left in 2002.254

In October 1995 the House of Representatives held elections. The nationalist party HDZ did not secure the 2/3 majority needed to amend the constitution, but gained enough votes to ensure Tuđjman’s leadership of Croatian politics.255 In 1996 Croatia and Yugoslavia recognized each other256, and Croatia became a member of the Council of Europe.The following year the Croatian Parliament also ratified the European Convention for the Protection of Human Rights.257 In January 1998, the last Serb-populated enclave under UN supervision, Eastern Slavonia, was integrated into Croatia.258

2.2.2 Bosnia and Herzegovina

Bosnia-Herzegovina was itself like a Yugoslavia in miniature.259 It was a patchwork of minorities, with the Serbs largely dominating the eastern rural areas and the Muslim population mainly concentrated in the cities and the eastern rural areas. The Croats were concentrated in two compact areas in the west.260 During WW2 Bosnia-Herzegovina became the most fought over part of Yugoslavia.261 It was here that the communist partisans, led by Tito, had their power base.262 On 29 November 1943, a Yugoslav republic was founded in

254 Harvey M. Weinstein and Eric Stover, “Introduction: Conflict, Justice and Reclamation,” in “My Neighbor, My Enemy. Justice and Community in the Aftermath of Mass Atrocity,” ed. Eric Stover and Harvey M. Weinstein (Cambridge: Cambridge University Press, 2004), 8.

255 David A. Dyker and Ivan Vejvoda, “Yugoslavia and After: A Study in Fragmentation, Despair and Rebirth” (Routledge, 2014). Chapter two. 256 Predrag Simic, “Yugoslav Foreign Policy: Continuity and Changes,” 2012, 5, http://sam.gov.tr/wp-content/uploads/2012/01/PREDRAG-SIMIC.pdf. 257 UN Secretary General, “S/1997/195 - Further Report on the Situation of Human Rights in Croatia Pursuant to Security Council Resolution 1019 (1995),” March 5, 1997, http://www.nato.int/ifor/un/u970305b.htm. 258 Weinstein and Stover, “Introduction: Conflict, Justice and Reclamation,” 8.

259 Toal and Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal”, 46. 260 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers”, 642. 261 Donia and Fine, “Bosnia and Hercegovina”, 136. 262 Ibid., 149.

Jajce.263 The Yugoslav federal republic was to be based on parity between its member nations. In 1945 Bosnia-Herzegovina became one of six new Yugoslav republics, in the borders of 1918 with some small adjustments.264 A registration of the citizens’ nationality was carried out mainly for statistical reasons. It was only by 1971 that “Muslim by Nationality” became one of the official statistical categories. The Muslims now became the biggest population group within Bosnia-Herzegovina, while the Serbs were the second largest group. However, the ethnic category was of little importance as long as the communist party ruled Bosnia.265 Bosnia was not in the foreground during the political and later military battles that led to Yugoslavia’s actual dissolution in 1991. Nevertheless, the Muslim leadership did not want to remain with Serbia in Yugoslavia after Slovenia and Croatia had declared independence. The secession was inevitable when they were about to receive international recognition.266 At this time, Bosnia and Herzegovina had large multicultural population groups.267 A 1991 census revealed that of Bosnia-Herzegovina’s 4.4 million inhabitants, about 44 per cent were Bosnian Muslims, 31 per cent were Serbs and 17 per cent Croats – the remainder were other ethnic groups (“Yugoslavs”) and the final 2 per cent were foreigners.268 Examining the results in relation to the previous census of 1948 revealed a virtual reversal in the relative positions of Muslims and Serbs. By implying a zero-sum power struggle, the Serbian propaganda used the numbers to further fuel the heated discussion, raising the spectre of Muslim conquest.269 The 1990 elections resulted in a coalition government of parties representing the three major ethnicities. But as the tensions grew in Yugoslavia, the Bosnian Serb leader Radovan Karadžić and his Serbian Democratic Party

263 Ibid., 151. 264 Ibid., 160–61. 265 Vjekoslav Perica, “Balkan Idols: Religion and Nationalism in Yugoslav States” (Oxford University Press, 2004), 75. 266 Trbovich, “A Legal Geography of Yugoslavia’s Disintegration”, 217–29. 267 Donia and Fine, “Bosnia and Hercegovina”, 9. 268 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”, 334. 269 Toal and Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal”, 68–69.

(Srpska Demokratska Stranka, or SDS) withdrew from government and set up their own Serbian National Assembly.270 Initially, the Bosnian government was reluctant to declare its independence in the face of the possibility that the war would spread to the republic.271 However, hostilities were already occurring after the results of the first multiparty elections held towards the end of 1990, in which the former ruling transnational Communist Party received only 14 of the parliament’s 240 seats. The biggest party was the Muslim Party of Democratic Action with 86 seats; then came the Serb Democratic Party with 72 seats and the Croatian Democratic Community with 44 seats. Muslims could thus form a majority with any of the other national parties, while the other members could only gain majority against the Muslims by allying themselves with the Communists.272 The Serbian nationalists responded by refusing to recognize an independent Bosnian state, in which they would constitute a minority. Both within the Serb and Croat communities there were prominent actors who preferred an armed conflict in Bosnia and Herzegovina. The Muslim-led Bosnian government however wanted to remain an integrated state.273 Large peaceful demonstrations were held as late as April 1992.274 But the protests also marked the end of peace. Snipers opened fire on a large unarmed, transnational peace rally in Sarajevo, and many were killed. On 6-7 April 1992 a number of states, including EC Member States, recognized Bosnia and Herzegovina’s independence and the war erupted.275 The conflict in Bosnia-Herzegovina began in April 1992 and lasted until November 1995.276 It was triggered by the contradiction between Bosnian Croat and Bosniak (Muslim) politicians, by the Republic’s withdrawal from Yugoslavia, and the Bosnian Serb politicians assertion of the right, under these

270 Donia and Fine, “Bosnia and Hercegovina”, 210–12. 271 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers”, 642. 272 Donia and Fine, “Bosnia and Hercegovina”, 210–11. 273 Donia and Fine, “Bosnia and Hercegovina”, 229–30. 274 Ibid., 238. 275 Ibid. 276 Holm Sundhaussen, “Sarajevo: Die Geschichte einer Stadt”, 1 ed. (Vienna: Böhlau Wien, 2014), 317–322.

circumstances, to secede from Bosnia and Herzegovina and join with the Serbs in other parts of the former Yugoslavia.277

In May 1992, the Yugoslav Federal Army withdrew from Bosnia due to international pressure, but with the support of Serbia a local Bosnian Serb army was formed, led by Bosnian Serb officers from the federal army and politically by the Bosnian Serb president Radovan Karadžić.278

The difficulty for the Bosnian Serb leadership was that the Serb populated areas did not constitute a uniform, continuous zone, but the different ethnicities were scattered, and the cities were totally mixed. Therefore, the Serb army tried to gain control of a continuous area, partly by military means and partly by the expulsion of non-Serb population.279 The Serbs, who enjoyed military superiority and support from Belgrade, quickly took control over a large part of Bosnia, trying to connect all Serb dominated areas.280 Some of the areas that were conquered had been seized under the excuse that they had been populated by Serbs prior to 1941.281 However, many areas were still “landlocked”. The take-over was followed by extermination and forced displacement as the Serbs and Croats tried to remove all who did not belong to their respective ‘ethnicities’.282 The Bosnian Croat leaders and the Muslims soon adopted a similar policy.283 Bosnia appealed to the UN, the EC and NATO for diplomatic and military support, requesting weapons for the newly formed Bosnian government army that defended the scattered areas still under Sarajevo’s control.284 This was thwarted by an arms embargo.285

277 Ibid., 314. 278 Donia and Fine, “Bosnia and Hercegovina”, 210, 243–44.

279 Ibid., 244–48. 280 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers”, 644. 281 Toal and Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal”, 58. 282 Donia and Fine, “Bosnia and Hercegovina”, 244–48. 283 Ibid., 245–46. 284 G. Wyn Rees, “ International Politics in Europe: The New Agenda” (Routledge, 2002), 149. 285 Sipri, “EU Arms Embargo on the Former SFR of Yugoslavia (Bosnia and Herzegovina),” http://www.sipri.org/databases/embargoes/eu_arms_embargoes/bosnia.

Figure 2 Distribution of Muslims (left) and Serbs (right) according to the 1991 census.286

Figure 3 Distribution of Croats (left) and Yugoslavs (right) according to the 1991 census.287

286 Toal and Dahlman, “Bosnia Remade: Ethnic Cleansing and Its Reversal”, 70. 287 Ibid., 71. 79

Figure 4 Distribution of “Others” according to the 1991 census.288

A peace proposal, the so-called Vance-Owen Plan, failed in May-June 1993 due to Bosnian Serb resistance and the lack of US support.289 The war continued unceasingly with increasing violence in areas where the Bosnian Serbs tried to

288 Ibid., 72. 289 Trbovich, “A Legal Geography of Yugoslavia’s Disintegration, ” 296.

eliminate the Muslim enclaves in the East and West. Sarajevo was continuously shelled.290 The war turned in effect into a conflict against the civilian population.291 A coalition between Croats and Muslims was formed in 1995 after a US and German initiative.292 Their forces received increasing foreign aid, and a large offensive in 1995 re-conquered some of the areas held by Serb forces. The Serb-controlled areas shrank from about 70 per cent of the area of Bosnia to about 45 per cent.293 The Dayton Agreement later adjusted the proportions to 49 per cent to the Serbs and 51 per cent to the Muslims and Croats.294

2.2.3 Kosovo

Serbia had managed to retake Kosovo during the Balkan Wars of 1912-13.295 But Kosovo had a majority Albanian Muslim population.296 In 1968, Albanian demonstrators rioted and demanded independence and the opportunity to unite with Albania.297 In 1974, Kosovo was given expanded autonomy and in a practical sense it was now equated with the other Yugoslavian republics.298 However, new disturbances erupted in 1981 and soon the Kosovo-Albanians demanded full republic status for the area.299 This provoked counter-reactions from the Serbian side.300

290 Donia and Fine, “Bosnia and Hercegovina, ” 259. 291 Ibid., 273. 292 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers, ” 647. 293 Ibid., 650–51. Vincent Rigby, “Bosnia-Hercegovina: The International Response,” January 1994, http://publications.gc.ca/Collection-R/LoPBdP/BP/bp374-e.htm. 294 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers, ” 651. 295 Judah, Kosovo. “War and Revenge”, 17. 296 Ibid., 18. 297 Ibid., 37. 298 Ibid., 38. 299 Ibid., 38–39. 300 Branka Magas, “The Destruction of Yugoslavia: Tracking the Break-up 1980-92” (Verso, 1993), 69.

Milošević went to Kosovo in 1987 to ‘listen to the grievances of the Kosovo Serbs’. A riot erupted outside the building where the meeting took place and the Serb population clashed with the mainly Albanian staffed police that were stationed there. The event was used by Milošević, who soon went outside to meet the crowd. Siding with the Serbs, he seemingly spontaneously commented: “No one should dare to beat you again!”. Thanks to a strong nationalistic ally, Dusan Mitevic, who worked for Belgrade Television, the news clip of the event was shown by TV stations in Belgrade repeatedly.301 In 1989, the Serbian Parliament revoked Kosovo’s autonomous status. The area was under strict control by Serbian military and police, and tensions ran high, although the Albanian population did not rebel directly.302 On the surface, conditions were calm in 1996-97, but in January 1998 the Kosovo Liberation Army (KLA) began systematically attacking Serbs, and the conflict soon escalated on both sides.303 Ibrahim Rugova’s non-violence oriented Albanian opposition party took the initiative for new elections to Kosovo’s illegal parliament, and in July 1998 he was re-elected president. But the KLA refused to accept the election results.304 There was heavy fighting during the summer, and both Albanian and Serbian local populations were forced to flee. It was not until NATO threatened air strikes in October 1998 that Yugoslavia withdrew most of its forces from Kosovo.305 The peace was monitored by the OSCE,306 but the conflict ignited once again in mid- December.307 After fruitless talks, in March 1999, NATO launched its 78-day bombing campaign in Yugoslavia.308 The war ended with a brokered peace agreement in Belgrade in June 1999, followed by UN Security Council Resolution 1244 of 10 June 1999, which

301 Judah, “Kosovo. War and Revenge”, 52–53. 302 Ibid., 55–56. 303 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers”, 652–56.

304 Ian Jeffries, “The Former Yugoslavia at the Turn of the Twenty-First Century: A Guide to the Economies in Transition” (Routledge, 2013), 440. 305 Judah, “Kosovo. War and Revenge”, 185–87. 306 OSCE, “Kosovo Verification Mission (Closed),” October 15, 1998, http://www.osce.org/node/44552. 307 Judah, “Kosovo. War and Revenge”, 191. 308 Ibid., xxv.

established Kosovo’s future status as a province, with home rule, within the Federal Republic of Yugoslavia.309 The military and police forces withdrew from the province. NATO and NATO partnership countries sent a 50,000-strong military force led by a civilian UN administration.310 In the autumn of 1999, the KLA was partially disarmed311, and in 2001 a constitutional framework was in place.312 The first free elections in the province’s history were held. Ibrahim Rugova’s party LDK won the elections against its main opponent, the Kosovo Democratic Party, DPK, led by the KLA leader Hashim Thaçi.313 In the spring of 2001, KFOR troops in cooperation with Serb forces managed to disarm a local Albanian rebel army that was operating in the Serbian border areas of Kosovo.314 UN authorities were single-mindingly establishing a cooperative environment between the Albanians and the other communities, especially the Serbs.315 In mid-March 2004 violence again erupted in Kosovo. The unrest began with the killing of a Serbian child, and escalated after the possible revenge killing of two Kosovo Albanian children. Kosovo Albanian media soon started a smear campaign against the Serb minority, which led to an open conflict. Both the UN mission in Kosovo (UNMIK) and NATO had been caught by surprise, due to the relative tranquillity of the area since 1999. Troops from KFOR managed to protect some settlements from attacks, but were themselves attacked by angry mobs.

309 Paul R. Williams and Michael P. Scharf, “Peace with Justice?”: War Crimes and Accountability in the Former Yugoslavia” (Lanham, Md: Rowman & Littlefield Publishers, 2002), 208. 310 Ibid., xix. 311 Sean D. Murphy, “United States Practice in International Law: Volume 1”, 1999–2001, United States Practices in International Law (Cambridge University Press, 2003), 400. 312 UNMIK, “UNMIK/REG/2001/9 - On a Constitutional Framework for Provisional Self- Government in Kosovo,” May 15, 2001, http://www.unmikonline.org/regulations/2001/reg09- 01.htm. 313 Corinna Metz, “The Way to Statehood: Can the Kosovo Approach Be a Role Model for Palestine?” (BoD – Books on Demand, 2014), 78. 314 CNN.com, “Albanian Rebels Vow to Disarm,” May 21, 2001, http://edition.cnn.com/2001/WORLD/europe/05/21/presevo.rebels/. 315 Andrea Benzo and Silvio Ferrari, “Between Cultural Diversity and Common Heritage: Legal and Religious Perspectives on the Sacred Places of the Mediterranean” (Ashgate Publishing, Ltd., 2014), 232.

When the violence ebbed, 11 Albanians, and 8 Serbs were dead – more than 900 were injured (including many peacekeepers), and some 4,000 Serbs, Roma and Ashkali had been forced to flee. Additionally, some 730 houses had been destroyed.316 Kosovo declared its independence on 17 February 2008. The country in 2015 was not yet admitted to the UN, OSCE or the Council of Europe, but is a member of the IMF and the World Bank.317

2.3 History of ICTY’s creation

There were many different initiatives that led to the establishment of the ICTY. While the 1992 Commission of Experts was working, twelve EC Member States, aligned with the United States, called upon the Moscow mechanism in order to assess the situation in Former Yugoslavia. Both aspects will be reviewed below.

2.3.1 The 1992 Commission of Experts

It was in the later part of 1992 that the idea of an international court began to gain momentum. By the autumn of 1992, news and reports of atrocities began streaming in from the Balkans. By then several initiatives had been initiated. France (S/25266), Italy (S/25300) and Sweden, on the behalf of OSCE (S/25307) all sent their reports to the Secretary-General.318 Since the early days of the war, different human rights groups had been observing events that took place in the former Yugoslavia. Many of these appealed to the UN to establish a legal forum, where war criminals could be prosecuted. On 6 October 1992, the United Nations Security Council passed its resolution 780, requesting the establishment of a Commission of Experts “to examine and analyse information gathered with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and

316 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”, 492. 317 U.S. Department of State, “Kosovo Joins the IMF and World Bank,” June 29, 2009, http://www.state.gov/r/pa/prs/ps/2009/06a/125489.htm. 318 Security Council, “S/25704 - Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993),” May 3, 1993, 5, http://www.icty.org/x/file/Legal%20Library/Statute/statute_re808_1993_en.pdf.

other violations of international humanitarian law committed in the territory of the former Yugoslavia.”319 The commission was set up on 26 October 1992, and was initially lead by Frits Karlshoven, but after quarrelling over the lack of support of the commission, he resigned. The chair was then assumed by US-Egyptian diplomat M. Cherif Bassiouni, who was to lead the commission during most of its existence.320 He also managed to solve the financing question, largely by relying on volunteers and grants from various foundations.321 In its early days, the commission found itself struggling against rivalling factions who, instead of ‘charging war crimes’, wanted to find a peaceful resolution to the conflict, and saw the creation of an organization investigating war crimes as counterproductive.322 From the beginning there was competition between the jurists and the peace negotiators. The latter group was represented by the British politician-diplomat Lord David Owen. According to him, it would tilt the delicate balance if a tribunal started going after one side. All parties of the conflict were equally guilty. And if the balance shifted, then it would make the road to a lasting peace solution so much more difficult.323 Because Owen was very influential, little funds were allocated the commission of experts, and they had to find funding from outside the UN system.324 Even after Bassiouni secured grants from the Soros and MacArthur Foundations in January 1993, bureaucratic and legal obstacles were in the way. It took over 10 months before the funds were released to the commission.325

319 Cherif Bassiouni, “S/1994/674 - Letter Dated 24 May 1994 From the Secretary-General to the President of the Security Council,” May 27, 1994, http://www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf 320 Ibid. 321 John Hagan, “Justice in the Balkans”: Prosecuting War Crimes in the Hague Tribunal” (Chicago: University of Chicago Press, 2003), 39. 322 Ibid., 34–35. 323 Ibid., 34. 324 Scharf, “Balkan Justice”, 45–47.

325 Ibid., 45. Also Geoffrey Robertson, “Crimes Against Humanity – The Struggle for Global Justice”, 3rd ed. (London: Penguin Books, 2006).

The commission managed to collect massive amounts of data and created a large database in Chicago that documented the crimes and events that had taken place in the former Yugoslavia. The goal for the collection of information was to gather evidence for the criminal prosecution of war criminals.326 On 16 December 1992, the U.S. Secretary of State, Lawrence Eagleburger, held a speech in Geneva that was to mark a dramatic shift in US policy. In what was later to be known as the “naming names” discourse, Eagleburger explained that the US had identified ten suspected war criminals, that should be placed in front of a modern Nuremberg tribunal. Eagleburger later attributed the key impetus , with whom he had a chance encounter in Geneva, but other sources claim that the speech had been cleared beforehand in Washington.327 On 26 January 1993, the commission delivered a report, detailing “willful killing, ‘ethnic cleansing’, mass killings, torture, rape, pillage and destruction of civilian property, destruction of cultural and religious property and arbitrary arrest.”328 On 22 February 1993, the Security Council issued its resolution 808, which determined that the “situation constituted a threat to international peace and

326 Cherif Bassiouni, “The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), vol. 88”, The American Journal of International Law 4, 1994, 794–96. 327 Nikolas M. Rajkovic, “The Politics of International Law and Compliance: Serbia, Croatia and The Hague Tribunal”, 1st ed. (Routledge, 2011), 44–45.Scharf, “Balkan Justice, ” 43–44. Among the identified war criminals were: Borislav Herak, a Bosnian Serb who had confessed to killing more than 230 civilians, two members of a Croatian paramilitary force, known under their noms de guerre “Adil” and “Arif”, accused of attacking a bus convoy of 100 Serbian women and children in August, killing half of them; Zeljko Raznatović, also known as “Arkan”, leader of the Tigers, a Serbian paramilitary force accused of the mass murder of up to 3,000 civilians near the Bosnian town of Brčko; Vojislav Seselj, leader of the Chetniks, a Serbian paramilitary group accused of atrocities in Brkčo and other Bosnian towns; Drago Prcać, commander of the Serb-run Omarška detention camp, where mass murders and torture allegedly occurred; Adam Delić, commander of the Croat-run Čelebići camp, where at least 15 Serbs were said to have been beaten to death in August 1992; Slobodan Milošević, the President of Serbia; Radovan Karadižić, the self-declared president of the Serbian Bosnian Republic, and Ratko Mladić, commander of the Bosnian Serb military forces. Elaine Sciolino, “U.S. Names Figures It Wants Charged With War Crimes,” The New York Times, December 17, 1992, http://www.nytimes.com/1992/12/17/world/us-names-figures-it-wants-charged-with-war- crimes.html. 328 United Nations, “Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808,” May 3, 1993, 4.

security”.329 The Security Council decided then to create an International Tribunal, and issued its resolution 827 in May 1993, which served as the Tribunal’s mandate. The commission of experts did not have a stipulated time frame, but by the end of 1993, UN funding ended, and the group was asked to end its work by 30 April 1994.330 The final report was issued at the end of April. The work of the commission continued until mid-1994, when it was disbanded.331 By this time ICTY had also commenced its work. The commission had amassed copious amounts of information, statements and analyses, and all the data was transferred to The Hague.332 The gathered information also revealed incriminating information about Belgrade’s role in the conflict. Many members of the commission soon secured a position with the tribunal.333

2.3.2 UN Security Council Resolutions 808 and 827

The creation of the international tribunal for the former Yugoslavia started on 5 August 1992, when the United Kingdom, supported by Denmark, France, Germany, Greece, Ireland, Italy, the Netherlands, Portugal, Spain, and the United States informed the Office for Democratic Institutions and Human Rights (ODHIR) that they had decided to implement the rules of the Moscow Human Dimension Mechanism document, regarding what was happening in Croatia and Bosnia-Herzegovina. This Moscow document had been chiselled out during the “Commission on Security and Cooperation in Europe” conference in Moscow in 1991, and it was specifically paragraph 12 that was called upon. This paragraph establishes that a

329 Security Council, S/RES/808 - Resolution 808 (1993); Adopted by the Security Council at Its 3175th Meeting, on 22 February 1993, 1993, 2, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/808%281993%29. 330 Scharf, “Balkan Justice”, 48. 331 Bassiouni, “The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992),” 88:797. 332 Scharf, “Balkan Justice”, 49. 333 Hagan, “Justice in the Balkans”, 58.

member state can apply the content of the document to a third member state suspected of breaching human rights.334 Soon thereafter, news broke about criminal events in Bosnia. On 6 August 1992335, ITN, The Guardian and Channel 4 were allowed to film the camps Omarska and Trnopolje in the Prijedor region of Bosnia. The video showed skinny Muslim men, standing behind barbed wire. Media reactions to these images caused public outrage, including comparisons with conditions in Nazi concentration camps of WW2.336 Satellite photos later revealed more than 100 camps.337 “A world that had promised ‘never again’ after allowing the Holocaust to unfold in Nazi Germany was now confronted with a repetition of ethnic atrocities on the doorstep of southern Europe”. 338 Internationally, the approval for intervention increased significantly after the news of the camps broke.339 On 10 August 1992, UN received a letter from representatives for Bosnia- Herzegovina (S/24401) which listed additional violations of international humanitarian law, within the territory of the former Yugoslavia. The letter listed mass deportation of civilians, mistreatment in several prison camps and attacks against hospitals. Already on August 13, the UN Security Council adopted resolution 771, which reminded all warring parties of their responsibilities under IHL and requested that all involved states should cease violating these rights.

334 Hans Corell, Helmut Türk, and Gro Hillestad Thune, “S/25307 - Proposal for an International War Crimes Tribunal for the Former Yugoslavia by Rapporteurs (Correll-Turk- Thune) under the CSCE Moscow Human Dimension Mechanism to Bosnia-Herzegovina and Croatia” 1993. Moscow Mechanism. (12) If a participating State considers that a particularly serious threat to the fulfilment of the provisions of the CSCE human dimension has arisen in another participating State, it may, with the support of at least nine other participating States, engage the procedure set forth in paragraph 10. The provisions of paragraph 11 will apply. OSCE, “Moscow Mechanism,” 1991, http://www.osce.org/odihr/20066?download=true. 335 Hagan, “Justice in the Balkans”, 46. 336 Scharf, “Balkan Justice, ” xiv. 337 Hagan, “Justice in the Balkans”, 46. 338 Ibid. 339 Samantha Power, “A Problem From Hell: America and the Age of Genocide” (Perseus Books Group, 2013), 276.

The UN also demanded that the Red Cross should be allowed access to the prison camps. States and international aid organizations were also asked to gather and deliver information to the United Nations about possible crimes e.g. against the Geneva Conventions.340 On 19 August 1992, the United Kingdom appointed the Swedish diplomat Hans Corell to lead a group of investigators. Their mission was to examine the reports that had been delivered so far about violations of human rights against the civilian population in Croatia and Bosnia-Herzegovina. The group consisted of two additional members, Helmut Türk, an Austrian diplomat, and the Norwegian lawyer Gro Hillestad Thune. Türk had been appointed by Croatia and Bosnia- Herzegovina on the 29 August, and Thune, who was a member of the European Commission for Human Rights was in turn appointed by Corell and Türk.341 The group was given their mandate on 28 September 1992. The aim of the group was to provide recommendations and further views on international criminal responsibility for crimes committed against the civilian population. In addition, it was to visit the areas where ethnic cleansing was suspected, if time and circumstances allowed, and was also charged to investigate claims of arbitrary arrests of Serbs in Croatia.342 The group decided, together with ODHIR and the UK, that they would first visit Croatia, and thereafter Bosnia-Herzegovina. The latter visit was planned to take place in mid-November 1992, but had to be postponed due to security concerns and the general chaotic state in the country. The visit to Croatia took place between 30 September and 5 October 1992. The report that followed stated that both sides of the conflict were guilty of violating IHL. The report also suggested that a committee of experts should be immediately appointed and that it should try to find ways of creating a system for the administration of collected information, moreover it suggested the appointment of another expert committee that should prepare a draft treaty for establishing an international ad hoc tribunal as soon as possible. A third suggestion was that an international group, including

340 Security Council, “S/RES/771 - Resolution 771 (1992); Adopted by the Security Council at Its 3106th Meeting on 13 August 1992,” August 13, 1992, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/771%281992%29. 341 Hans Corell, Helmut Türk, and Gro Hillestad Thune, “Rapporteurs (Corell-Turk-Thune) under the Moscow Human Dimension Mechanism to Croatia,” October 30, 1992, 6, http://www.havc.se/res/SelectedMaterial/19921007cscereportoncroatia.pdf. 342 Ibid., 7.

forensic experts, should be sent immediately to investigate the existence of mass graves in UNPA Sector East (Eastern Slavonia).343 The day before the group presented their report, on 6 October 1992, the UN Security Council issued resolution 780. Again, the warring parties were requested to cease breaking international commitments. In addition, the Security Council solicited that all states and organizations that had knowledge about war crimes should send this information to the committee of experts that were to be created by the resolution. The commission was tasked with examining the collected information on war crimes and violations to international humanitarian law, and also conduct investigations and gathering of evidence. Its conclusions on the body of evidence and information collected should then be handed over to the General Secretary of the UN, who in turn would inform the Security Council, who were then to decide on further measures.344 On the 5-6 November 1992, the board of the CSCE (Commission on Security and Cooperation in Europe, also known as the Helsinki Commission) and the CSO (Committee of Senior Officials) decided that the report of the Corell group on Croatia should be sent to the UN commission of experts for a statement.345 The commission, however, replied that they didn’t have the mandate to execute the suggestions made in the report. Following this, Corell and his team suggested that it should make an interim report on Bosnia-Herzegovina, which still was too dangerous to visit, by examining relevant criminal codes. The team suggested further that it would make a draft for a convention for the creation of an international ad hoc tribunal for war crimes committed in the former Yugoslavia. The suggestion required a mandate from the affected states.346

343 Corell, Türk, and Thune, “Rapporteurs (Corell-Turk-Thune) under the Moscow Human Dimension Mechanism to Croatia”. 344 Security Council, “S/RES/780 - Resolution 780 (1992); Adopted by the Security Council at Its 3119th Meeting, on 6 October 1992,” October 6, 1992, 780, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/780%281992%29. 345 William A. Schabas, “The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone” (Cambridge University Press, 2006), 15. 346 Hans Corell, “Foreword,” in On the Proposed Crimes Against Humanity Convention, ed. Morten Bergsmo and Song Tianying (Torkel Opsahl Academic EPublisher, 2014), iv.

The board of the CSCE decided on 15 December 1992 to accept the proposal of the Corell team, but added that the execution should be in cooperation the UN committee of experts.347 At the CSCE meeting in Copenhagen on 13-14 January 1993, a resolution was passed that explained the need for an international war crimes tribunal that could charge suspected war criminals. About one month later, on 22 February 1993, the UN Security Council passed its resolution 808.348 After its approval, the General Secretary was asked to present a report within 60 days from the resolutions entry into force. According to this mandate, the report should give suggestions on how to create a tribunal that in the easiest and timeliest manner could render justice and enforce peace in the former Yugoslavia.349 On 25 May 1993, the Security Council adopted resolution 827 – leaning on Article 41 of the UN charter, which permitted the Security Council to enforce its decisions on the UN’s member states.350

2.4 Conclusions The creation of the ICTY was the result of long political and diplomatic processes and various formal and informal non-legality regimes. It relied on SC and UN resolutions, expert reports, work of rapporteurs, state negotiations and peacebuilding efforts. ICTY’s creation and its framing was greatly influenced by different actors having executive positions, which located the ICTY not only as an institution to deliver justice but also more importantly within the arsenal of UN “peace mechanisms”. The next chapter will show that this positionality framed the limits and possibilities of the OTP and substantiated the policy ideal that the OTP chief prosecutor should have the primary role as a promoter of the institution as an instrument that would correlate criminal justice and peace-making. This carried

347 Luc Reydams and Jan Wouters, “The Politics of Establishing International Criminal Tribunals,” in International Prosecutors, ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert (Oxford: Oxford Univerity Press, 2012), 23. 348Ibid., 23–25.Security Council, S/RES/808, 808. 349 Security Council, S/RES/808. 350 Security Council, S/RES/827 - Resolution 827 (1993); Adopted by the Security Council at Its 3217th Meeting, on 25 May 1993, 1993, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/827%281993%29.

two relevant factors for the notion of selectivity, firstly, from the perspective of external international actors, the prosecutor was seen as a mediator of international policies, and secondly it highlighted the need for legitimation of the mandates of the OTP. Detrimental factors such as cooperation, compliance, financing and the interactions with a multiplicity of external actors and operators would have an impact on the decision making process in which forms of normativity are merged with political encounters in order to materialize indictment policies.

III. The formulation of indictment policies in the OTP’s different tenures

I felt the committee members had drawn restrictive interpretations to avoid being obliged to go on. I must confess however that I knew going on was impossible, both technically and professionally. We had no cooperation, none, from anybody – this was the technical problem. And it was impossible to go on politically, without undermining the rest of the tribunal’s work … but the president of the tribunal, judge Antonio Cassese, did express dismay at the result. “You could have indicted the pilot”, he insisted. “I cannot” I answered, “It isn’t my jurisdiction. A pilot is just too far down the chain of command.351 – Carla del Ponte

3.1 Introduction This chapter turns to the non-legality dimensions of indictment policy by looking at everyday performances of the chief prosecutors, Richard Goldstone, Louise Arbour and Carla Del Ponte in their interactions in and out the OTP. As such, I aim at re-describing the relations between the prosecutors and other relevant actors such as the UN Security Council, EU and NATO member states, NGO’s and diverse representatives of Balkan diplomacy as well as Former Yugoslavia nations. 352 This analysis will help to develop an understanding of the way in which formal and informal power negotiations and multidimensional forms of cooperation and compliance shaped and influenced indictment policy decisions concerning the selection of defendants.

351 Former chief prosecutor Carla Del Ponte discussing NATO’s air campaign and the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Carla Del Ponte and Chuck Sudetic, “Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity” (New York: Other Press, 2009), 61. 352 The first book that correlated the selection of defendants with policy considerations in the context of the OTP- ICTY was written by Frederiek de Vlaming in 2010, namely, “De Aanklager. Het Joegoslavië-tribunal en de selectie van verdachten”. 93

By analysing the impact of these influences on indictment policy, this chapter provides an account of how these extra-legal practices are ‘normativized’ by linking them to the decisions over OTP’s indictee lists and the production of indictments. Allowing in this manner, to visualize how “in a field of law so closely tied to the broader field of power … external political influences are refracted within”.353 My argument is that the constant intervention of non-legality practices into the decision making for producing indictments had a visible effect in the threshold for the prosecution. This is observable in the different policy strategies and decisions, which continuously were dependent on contextual bias structures. As such, indictment policy reflects in itself “internal power relations” within powerful states and competition between prosecutorial (tenure) regimes.354

3.2 Richard Goldstone (August 1994 – September 1996)

3.2.1 Introduction The Yugoslav Tribunal had no prosecutor for eighteen months while “Security Council members politicked fruitlessly over an appropriate individual to lead investigations”355, consequently reducing the suitability of the candidates to their personal characteristics and not their professional qualifications.356

The first ICTY prosecutor was Ramon Escovar Salom, who after securing Graham Blewitt (in February 1994) as deputy prosecutor relinquished the SC appointment. The next candidate was Richard Goldstone, who, in comparison to

353 Hagan, Levi, and Ferrales, “Swaying the Hand of Justice,” 587. 354 Ibid., 588. John Hagan and Ron Levi, “Crimes of War and the Force of Law,” Social Forces 83, no. 4 (2005): 1505. 355 David Bosco, “Rough Justice: The International Criminal Court in a World of Power Politics”, 1 edition (Oxford ; New York, NY: Oxford University Press, 2014), 36. 356 Such as their country of nationality or professed religion. Notably, Cherif Bassiouni was rejected because he was Muslim. “If you are a Bosnian, do you want a Brit as your prosecutor? If you are France or Britain or Russian, do you want an outspoken Muslim?” see specially, Gary J. Bass, “Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, Princeton Studies in International Law (Princeton /Oxford: Princeton University Press, 2000), 218 and chap. 6. Pierre Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, trans. James Thomas Snyder (College Station: Texas A&M University Press, 2004), chap. 2 and 3. Scharf, “Balkan Justice”, 75–80. Rajkovic, “The Politics of International Law and Compliance”, 48–54.

other candidates, lacked the background for the nomination as chief prosecutor, as his training and early career was in commercial law and he had no prior working experience in criminal law.357

Goldstone was chosen mainly because political convenience persuaded the permanent members of the SC, against the background of his role in chairing the South African truth and reconciliation commission in South Africa and the fact that Nelson Mandela supported him. An additional consideration was Goldstone’s sympathy towards liberal western ideas and the fact that he did not come from a Western country with a manifest interest in the Balkans.358

Goldstone’s experience in diplomacy showed that he could potentially accommodate political interests and, in relation with the newly born tribunal, “his advantage lay in his understanding and dexterity within the diplomatic rather than the legal field”.359 He left most of his office responsibilities to the deputy prosecutor Graham Blewitt while traveling incessantly to make the tribunal positively visibly to other UN agencies, state officials and the public opinion. To that degree, Goldstone’s primary role as a Chief Prosecutor was to be a publicist and a diplomat “rather than carrying out the function in the tittle of his post”.360

The context of Goldstone’s work was determined by four factors, firstly, the continuation of the wars in Bosnia Herzegovina and Croatia that made it impossible to carry out autonomous investigations on site. This determined that the OTP relied on governments (especially the US) and field agencies to gather relevant data. Secondly, the ambiguous reactions by SC members towards the conflict and the role that the tribunal should play in it – initially there was a very

357 Scharf, “Balkan Justice”, 78–79. 358 Richard Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals,” Journal of Law & Policy 5 (2001): 122. Hagan, ”Justice in the Balkans”, 60. Rajkovic, “The Politics of International Law and Compliance”, 51. 359 Hagan and Levi, “Crimes of War and the Force of Law,” 1510. 360 James Gow, Rachel Kerr, and Zoran Pajic, eds., “Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia”, 1st edition (Routledge, 2013), 36. Hagan and Levi, “Crimes of War and the Force of Law,” 1510. Graham Bewitt and Gavin Ruxton, both experienced prosecutors in war crime cases from the Second World War ran most of the day-to day operational needs of the OTP during the first decade. James Gow and Milena Michalski, “Prosecuting with Pictures. Two Decades of Experience and Evolution.,” in Prosecuting War Crimes. Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia, ed. James Gow, Rachel Kerr, and Zoran Pajic (London/ New York: Routledge, 2014), 35.

strong drive that viewed the tribunal as an element that could potentially impair peace negotiations in the region. Thirdly, the lack of support and adequate funding from the UN Secretariat, and fourthly, deficiency in the enforceability of arrest warrants.361

Below, we will explore the four factors and its connection with the production of indictments.

3.2.2 Contextual factors

3.2.2.1 Continuation of wars

Despite the fact that a ceasefire was signed in March 1994 between a separatist Bosnian Croat party and the Republic of Bosnia and Herzegovina, hostilities did not stop and the complex political manoeuvres that rested behind the disintegration and military conflict in Former Yugoslavia proved to be an important constraint on Goldstone’s work.362

Goldstone arrived at the OTP while Serb forces continued to besiege Sarajevo and other Bosnian towns.363 In addition, during his mandate he was confronted with two major events, in July 1995 the failure of the UN “safe havens” solution led to the situation where the Bosnian Serbs overran the area of Srebrenica, with the subsequent killing of thousands of men and boys. One month afterwards, Goldstone faced the execution of the “Homeland War” also known as “Operation Storm”, where the Croatian Army took the city of Knin, defeated the Republic of Serbia Krajina and regained control over the large chunks of territory that had been lost to Serb Forces. Storm resulted “in the death of an estimated 526 Serbs,

361 Frederiek de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten” (The Hague: Boom Juridische Uitgevers, 2010), 108. 362 In relation with the Washington Peace Agreement see Charles Boyd, “Making Peace with the Guilty: The Truth About Bosnia,” Foreign Affairs, October 1995, https://www.foreignaffairs.com/articles/europe/1995-09-01/making-peace-guilty-truth-about- bosnia. For an accurate description of historical causes of the Yugoslav disintegration and conflict, see Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011,” 319–76. In addition, Trbovich, “A Legal Geography of Yugoslavia’s Disintegration,” chap. 4 and 6. Donia and Fine, Bosnia and Hercegovina, 220–80. 363 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals”, 223. Catherine Samary, “Yugoslavia Dismembered,” trans. Peter Drucker (New York: Monthly Review Press,U.S., 1995), 69–84.

116 of whom were reportedly civilians, and in the displacement of an estimated 200,000 who fled in the immediate aftermath”.364

While the wars in Bosnia-Herzegovina came to an end with the signature of the Dayton accords in December 1995, armed confrontations in Kosovo were about to begin. In April 1996, The Kosovo Liberation army (KLA) started its fight against Serbs demanding independence. During the remaining year of Goldstone’s term, diplomatic efforts did not diminish the death toll on either the Serbian or Albanian sides.365

The Dayton General Framework Agreement established the duty for the warring parties to cooperate with the ICTY.366 However, domestically, the military elite that took part in the hostilities and the politicians who backed up the conflict occupied influential positions. This determined the growing resentment towards the court and the fragile positioning of the OTP in terms of cooperation, especially concerning compliance with the local authorities, so that some of the indictments issued by Goldstone had no repercussions locally and were completely disregarded.367

364 Human Rights Watch, “Impunity for Abuses Committed during ‘Operation Storm’ and the Denial of the Right of Refugees to Return to the Krajina,” January 8, 1996, http://www.hrw.org/node/78705. Concerning the Srebrenica killings and the role of external actors see specially Orford, Reading Humanitarian Intervention. Human Rights and the Use of Force in International Law, 200–201. For a legal reading of the Homeland War, Janine Natalya Clark, “Courting Controversy The ICTY’s Acquittal of Croatian Generals Gotovina and Markač,” Journal of International Criminal Justice, March 15, 2013. 365 Glenny, “The Balkans 1804-2012 - Nationalism, War and Great Powers”, 652–62. 366 General Framework Agreement Annex 4, 1995, http://www.nato.int/ifor/gfa/gfa-an4.htm. Article II (8) Cooperation. “All competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to: any international human rights monitoring mechanisms established for Bosnia and Herzegovina; the supervisory bodies established by any of the international agreements listed in Annex I to this Constitution; the International Tribunal for the Former Yugoslavia (and in particular shall comply with orders issued pursuant to Article 29 of the Statute of the Tribunal); and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law.” 367 For example, Hazan points at the cases of Pedrag and Nenad Banović indicted in July 1995 for the torture and mistreatment of Bosnian Muslims in the Keraterm camp in the locality of Prijedor and the situation of Radomir Kovač and Dragan Selenović, both indicted in June 1996 for the rape and torture of Muslim women in the municipality of Foča, while Pedrag and Nenad Banović continued to work as police reservists in Prijedor, Kovač and Selenović kept their positions at a police station in Foča. Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 109. See additionally IT-95- 97

The Prosecutor was often denied access to Serbian archives and documentation while Bosnian Croats and Croatia in general were partially collaborative. This situation limited the OTP’s capacity to gather relevant information. In addition, the dynamics of the war impaired Goldstone’s ability to obtain witnesses. Despite Dayton, among Western nations, only the United States was cooperating with substantial information.368 Yugoslav and Croatian authorities refused to recognize the jurisdiction and prohibited the opening of an office in Belgrade.369

According to employees of the OTP at the time, the unfavourable political context impacted directly in the selection of crimes to be examined and the decisions over the indictee list.370 This was despite the fact that Goldstone claimed that the indictments during the two years of his tenure did not exclude anybody if relevant evidence was provided. It was primarily concerns over Balkan diplomacy in the region, the difficult relations with the Security Council, and the increased value of Milošević in the political process over Dayton that were the main considerations that excluded important political actors (and Milošević himself) from prosecution.371

8-PT. Prosecutor v. Sikirica at al (ICTY 1995). IT-96-23-I. Prosecutor v. Gagović et al (ICTY 1996). 368 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 109. Further, Mladen Ostojic, “Between Justice and Stability: The Politics of War Crimes Prosecutions in Post-Milošević Serbia”, New edition (Farnham, Surrey, England ; Burlington, VT: Ashgate Pub Co, 2014), chap. 3. 369 Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 108. 370 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 109. 371 Rajkovic, “The Politics of International Law and Compliance”, 54–55. Victor Peskin, “International Justice in Rwanda and the Balkans”: Virtual Trials and the Struggle for State Cooperation”, 1st edition (Cambridge UK ; New York: Cambridge University Press, 2008), 35– 47. Rachel Kerr, “The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy” (Oxford ; New York: Oxford Univ Pr, 2004), 120–25. Ernst Dijxhoorn, “International Criminal Justice and Kosovo. Critical Legitimacy and Impact on a Quasi-State Entity,” in Prosecuting War Crimes. Lessons and Legacies of the International Criminal Tribunal for the Former Yugoslavia (New York: Routledge, 2014), 213–23. Williams and Scharf, “Peace with Justice?”, 126–27. For an overview of Milošević indictments and the extra legal considerations driven the OTP in his case, see, Gideon Boas, “The Milošević Trial. Lessons for the Conduct of Complex International Criminal Proceedings” (Cambridge: Cambridge University Press, 2007), 112–13. Bass, “Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, 228–29. Koskenniemi, “Between Impunity and Show Trials,” 19.

3.2.2.2 Ambivalence of the Security Council and the “international community” The creation of the Yugoslav Tribunal was part of a broader diplomatic effort that merged diplomacy and law. That initially manifested itself in the formation of human rights committees, the naming of special rapporteurs and other working groups whose findings allowed to build up the investigations during the OTP’s first years. The tribunal and the work of the OTP itself was set up as part of a ‘humanitarian strategy’372 that was intended not only to produce penal effects but to “help in restoring and maintaining international peace and security”.373 This feature inserted the OTP actions (from the side of SC and states involved in the Balkan region) as one of the components of a diverse set of arrangements designed for stabilization purposes. Accordingly, the lifespan of the Yugoslav Tribunal was initially conceived and connected to its ability to achieve peace.374 In relation to these external actors, the indictment strategy was positioning itself between two poles: an official narrative that was seeking to advance criminal prosecutors and the day-to-day actions looking to avoid any penal effect derived from Goldstone’s actions.

Pre-existing rules outlawing war crimes, crimes against humanity, and genocide and that required states to take action to prevent these crimes and to prosecute offenders were generally seen as impediments to the process of accommodation. The peace builders thus actively sought to characterize the conflict in terms

372 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 110– 11. 373 Mohamed Shahabuddeen, “International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection” (OUP Oxford, 2012), 26.United Nations, “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 Since 1991.,” August 29, 1994, para. 11. 374 Judge Shahabuddeen in allusion to the creation of the ICTY in Security Council, S/RES/827 - Resolution 827 (1993); Adopted by the Security Council at Its 3217th Meeting, on 25 May 1993. In addition, see Security Council, S/RES/808. Shahabuddeen, “International Criminal Justice at the Yugoslav Tribunal”, 27.

which excluded the application of these norms for as long as possible.375

There were two factors affecting the indictment policy, firstly, the prioritization of the peace talks and negotiations over OTP requests, and secondly, the unwillingness of states and other international actors (such as NATO’s implementation force) to arrest suspects.376 Facing the UN’s preceding history of preference for amnesty, in exchange for peace agreements,377 Goldstone stated publicly that the OTP would not recognize a Bosnian Peace agreement that offered immunity to suspected war criminals such as the Bosnian Serb leader Radovan Karadžić, and the military commander Ratko Mladić. Goldstone publicly declared “immunity is a political decision”378 and that his office “would not be bound by it”.379 According to the prosecutor, his role was not only to deliver indictments but also to be an institutional agent of the tribunal itself. “We’re a creature of the Security Council. It is an apolitical mandate. We have to do our job. I protect the professional interests of the tribunal”.380

375 Williams and Scharf, “Peace with Justice?”, 241. 376 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 111. After Dayton, NATO implemented the military aspects of the peace agreements through an implementation force (IFOR) and a subsequent stabilisation force (SFOR) see NATO, “History of the NATO-Led Stabilisation Force (SFOR) in Bosnia and Herzegovina,” n.d., http://www.nato.int/sfor/docu/d981116a.htm. Concerning the obligation to arrest indicted persons by NATO officials, Paola Gaeta, “Is NATO Authorized or Obliged to Arrest Persons Indicted by the International Criminal Tribunal for the Former Yugoslavia?,” European Journal of International Law 9, no. 1 (1998): 174–81. 377 Five years prior to the Dayton negotiations, the UN pushed through amnesties in El Salvador, Cambodia and South Africa. This led Goldstone to consider that the diplomatic venue would create obstacles for the work of the OTP and the issuing of indictments was a particularly sensitive topic. Scharf, “Balkan Justice”, 87. 378 Roger Cohen, “U.N. in Bosnia: Black Robes Clash With Blue Hats,” The New York Times, April 25, 1995, http://www.nytimes.com/1995/04/25/world/un-in-bosnia-black-robes-clash- with-blue-hats.html. 379 Ibid. 380 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals”, 243.

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The prosecutor pursued investigations against Karadžić and Mladić, and by April 1995 he made clear that both were suspects for ordering atrocities in Bosnia.381 However, Goldstone was forced to speed up the indictment to secure the legitimacy of the tribunal once the Serb forces shelled the UN “safe area” of Srebrenica, where, in the presence of Mladić, thousands of men and boys were executed in the immediate vicinity of Dutch peacekeepers.382 Despite both the Srebrenica massacre and Goldstone’s first indictment against Karadžić and Mladić, peace negotiations favouring Serb military leadership continued between European Union representatives and the United Nation Protection Force (UNPROFOR). 383 Consequently, and confronting the possibility of a negotiated settlement between Western governments and Milošević, the ICTY judges threatened a joint resignation. “All the judges, even the most conservative, agreed to resign in protest [...] We had spoken of it on several occasions, and no one even the most reserved, was against it. We had even thought of sending a letter to Boutros Boutros–Ghali to warn him about it”.384 During the three weeks Dayton was being discussed, Goldstone formally asked the United States to make the surrender of indicted suspects a condition for the peace accord. While the US responded that such request could not be the basis for any negotiation, other diplomats were advancing the “moral equivalence”

381 Roger Cohen, “Tribunal to Cite Bosnia Serb as War Criminal,” The New York Times, April 24, 1995, http://www.nytimes.com/1995/04/24/world/tribunal-to-cite-bosnia-serb-chief-as- war-criminal.html. Peskin, ”International Justice in Rwanda and the Balkans”, 41. For a historical contextualization of the roles of Karadžič and Mladič in Bosnia see Sundhaussen, ”Jugoslawien und seine Nachfolgestaaten 1943-2011”, 338–65. 382 Online Encyclopedia of Mass Violence, “The Srebrenica Massacre (July 11-16, 1995),” Article, The-Srebrenica-Massacre-July-11-16-1995, (July 7, 2010), http://www.massviolence.org/the-srebrenica-massacre-july-11-16-1995. Erna Rijsdijk, “Lost in Srebrenica: Responsibility and Subjectivity in the Reconstructions of a Lost Peacekeeping Mission” (PhD, University of Amsterdam, 2012). In addition, concerning the interconnection between external actors and the events in Srebrenica, Orford, “Reading Humanitarian Intervention. Human Rights and the Use of Force in International Law”. Both generals were indicted not in relation to Srebrenica but for events prior to the massacre. See, IT-95-5-I Prosecutor v. Mladić & Karadžić (ICTY 1995). 383 United Nations, “Report of the Secretary-General pursuant to General Assembly Resolution 53/35. The Fall of Srebrenica,” November 15, 1999, paras. 239–431. Hazan, ”Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 67. 384 Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 68.

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approach characteristic of previous peace negotiations among UN officials.385 This entailed the assumption that all warring sides had originated the same degree of damages, consequently labelling them as equally responsible, to that point, all the parties were allocated the same degree of responsibility and received similar treatment. In that manner, the “moral equivalence” perspective endorsed the position of neutrality of UN negotiators, and therefore facilitated an acceptable agreement for all sides.386 This position was contrary to the OTP mandate but “the problem – said a British official – was indicting people [when] you might be negotiating with them”.387

It is in this ambivalent context that Goldstone issued three additional indictments for the events of Vukovar388, Lašva Valley389 and Srebrenica.390 But the “moral equivalence” approached displayed by international actors involved in Dayton

385 Cherif Bassiouni, “Real Justice or Realpolitik? The Delayed Indictment of Milošević,” in The Milošević Trial. An Autopsy, ed. Timothy Waters (Oxford/New York: Oxford University Press, 2014), 99–100. 386 In his 1999 Srebrenica report, UN Secretary General Annan represented this approach as an “institutional ideology of impartiality even when confronted with attempted genocide” Brian D. Lepard, “Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions” (Penn State Press, 2010), 209–13. Specially in relation to the principles adopted in the London Conference for the peace negotiations in Bosnia Anonymous, “Human Rights in Peace Negotiations,” Human Rights Quarterly 18, no. 2 (1996): 249–58. 387 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals”, 222. Opposing this view, human rights activists, independent researchers and NGOs voiced the claim that Serbs and Bosnian Serbs bore the biggest responsibility in the commission of crimes and were publicly pushing for the issuing of indictments against Serb leadership. See for example, Amnesty International, “Rape and Sexual Abuse by Armed Forces”, EUR 63/01/93 (Amnesty International, 1993). Human Rights Watch, “Bosnia-Hercegovina. The Continuing Influence of Bosnia’s Warlords” (Human Rights Watch, 1996). For an overview of the legal mobilization of NGOs see Yves Dezalay and Bryant Garth, “From the Cold War to Kosovo: The Rise and Renewal of the Field of International Human Rights,” Annual Review of Law and Social Science 2, no. 1 (2006): 253. 388 IT-95-13 A. Prosecutor v. Mrkšić at al (ICTY 1995). 389 IT-95-16 Prosecutor v. Kupreškić et al (ICTY 1995). 390 IT-95-5-I Prosecutor v. Mladić & Karadžić (ICTY 1995). Representing the indictments as part of the Tribunal’s survival and its search for ‘respect’. Mirko Klarin, “The Tribunal’s Four Battles,” Journal of International Criminal Justice 2 (2004): 549–50.

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“really meant disregarding the possibility that there were victims and perpetrators. Only actors with influence on the possible outcome”391 Consequently, the negotiations kept in place the so-called “Milošević Strategy”– forcing Serbia and the Bosnian Serbs leadership to work together. The important issue for Balkan diplomacy was to uphold Milošević in order to sustain a lasting peace agreement. Arguably, Karadžić and Mladić were kept aside from the negotiation table because of the US interest in upholding a strategy centred on Milošević and not due to a commitment to Goldstone’s work.392 Despite the claim of an apolitical policy, Goldstone acknowledged that indicting Karadžić and Mladić advanced their exclusion and facilitated the process in Dayton, accordingly, without these indictments “the Dayton Accords would not have been brokered. Karadžić would have been free to attend the meetings, and that would have made the attendance of Alija Izetbegović, the president of Bosnia, impossible”.393 The ambivalent relationship with SC and UN member states was also manifested in the lack of enforceability of OTP’s mandates and arrest warrants. For instance, Karadžić was not forced to step down from his leadership position for up to half a year after Dayton and he remained politically active for two years following his indictment.394 In February 1996, an additional provision named the Rome Agreement was included into the Dayton Accords. The provision also known as “Rules of the Road” stated that authorities in Bosnia-Herzegovina, Croatia and Serbia could only arrest and detain persons after an indictment by the OTP or in the situation

391 Bassiouni, “Real Justice or Realpolitik? The Delayed Indictment of Milošević,” 100. Also Richard Holbrooke, To End a War, Revised edition (New York, NY: Modern Library, 1999), chap. 7. 392 Bassiouni, “Real Justice or Realpolitik? The Delayed Indictment of Milošević,” 100–101. 393 Richard J. Goldstone, “For Humanity: Reflections of a War Crimes Investigator”, First Edition (New Haven: Yale University Press, 2000), 103. Kerr, “The International Criminal Tribunal for the Former Yugoslavia, ” 186–87. 394 Karadžič went underground in 1997 after losing power. He was finally arrested in July 2008 in the context in which the Serbia was pushing for a full EU membership after signing a first stabilisation and association agreement (SAA). “Arrest of a Bearded Man,” The Economist, July 2008, http://www.economist.com/node/11792314. Mark B. Harmon and Fergal Gaynor, “Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings,” Journal of International Criminal Justice 2 (2004): 408–12.

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in which the tribunal has reviewed the case file submitted by either of the states.395 The provision was a political response after Bosnian police in Sarajevo arrested two Serb officers, Djordje Đjukić and Colonel Aleksa Krsmanović, without an OTP indictment.

The lead negotiator in the Dayton Accords, Richard Holbrooke, later wrote “The seizure of the two men, neither of whom were ever indicted, had disrupted the implementation process and set a bad precedent for the future. We determined to try to prevent any repetition of such an incident before it became a pattern”.396

After the signing of the Dayton Peace agreement in 1995, the EU implemented several programmes in the Western Balkans aiming at stabilization and further integration. The Royamond Process (1996) aimed at the promotion of regional cooperation schemes and fund projects: the Regional Approach (1997) comprising relations with states without regional associations agreements, the Stabilization and Association Process (SAP), and the Stability Pact (1999).397 Arguably, the lack of cooperation with the OTP (especially NATO’s SFOR) concerning arrest warrants, was connected to the lack of prioritization of the tribunal’s work within the political arena, leaving open the prospect that “NATO commanders would intentionally avoid areas where ICTY fugitives were known to reside”.398

395 Item number 5. Cooperation on War Crimes and Respect for Human Rights. … “Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal. Procedures will be developed” Rome Agreement, 1996, http://www.nato.int/ifor/rome/rome2.htm. 396 Holbrooke, “To End a War”, 332–33. ICTY, “Press Release. CC/PIO/032-E. General Djukic and Colonel Krsmanovic to Be Transferred to The Hague.,” February 13, 1996. ICTY, IT-96- 20-I. Prosecutor v. Đukić - Indictment (1996). Bass, ”Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, 250–51. 397 Jelena Stojanovic, “EU Political Conditionality and Domestic Politics: Cooperation with the International Criminal Tribunal for the Former Yugoslavia in Croatia and Serbia” (Doctoral dissertation, Central European University, 2009), 13–14. 398 Christopher K. Lamont, “International Criminal Justice and the Politics of Compliance” (Ashgate Publishing, Ltd., 2013), 131–133.

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3.2.2.3 Lack of resources The deficiency of ICTY financing reflected a wider problem between the UN efforts in former Yugoslavia in general, the lack of support showed that many countries did not regard the investigation of crimes as a top priority in the region. At the ICTY the lack of funds endangered the institutional functionality of its establishment. 399 As Goldstone commented:

I assumed, in my innocence and ignorance, that the ICTY, having been established by unanimous resolution of the Security Council and followed by my own similar approval, would have sufficient funds for me to carry out my mandate. I was wrong. In fact, there were almost no funds at all, and it was only at the beginning of 1995 that the Tribunal’s budget was approved by the General Assembly. This lack of funding seriously delayed setting up a functioning Office of the Prosecutor. We were starved of both human and material resources.400

Between 1993 and 1994, the budget was so small that the OTP could only offer contracts for half a year and there was no possibility of entering into long-term obligations such as renting the ICTY building. 401 On average, 75 per cent of the budgeted funds were allocated to the judges, administration and overheads, and less than 2 per cent was used for the critical work of tracking down witnesses, exhuming mass graves, and providing expert analysis of data. 402 Goldstone

399 Rosalyn Higgins, “The New United Nations and Former Yugoslavia,” (Royal Institute of International Affairs 69, no. 3 (July 1993): 476–78. 400 Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals,” 122. 401 United Nations, “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 Since 1991.,” 15–16. 402 Williams and Scharf, “Peace with Justice?”, 110.

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confessed that the funding was one of the most difficult challenges he faced during his tenure as prosecutor. 403 The monetary considerations were also connected to the ‘productivity’ of the OTP. Goldstone was advised that in order to receive funding for 1995, he should indict someone within three months of his arrival.404 During 1994, the UN held two budgetary committees seeking to cut the tribunal’s expenses by 20 per cent, forcing Goldstone to fly to New York to negotiate additional funding from governments and international donors.405 At that point the UN “threatened to stop funding altogether if no indictments were issued by November 1994”.406

Furthermore, the budget limitations restricted the capacity of the OTP to investigate the events in Srebrenica and the commencement of the Tadić case was delayed for over five months due to a shortage of funds for the payment of investigators and the defence team.407 In this context, the initial indictments brought by the OTP “were issued under tremendous pressure to obtain crucial funding from the United Nations”.408 Moreover, the selected targets were to function as demonstrators to show that “the system was working and that the Tribunal was worthy of financial support”.409

403 Scharf, “Balkan Justice”, 84. Interview with Goldstone in “Against All Odds. The First Ten Years of the Tribunal,” Documentary (Sense Tribunal, 2003), http://www.sense- agency.com/documentaries.42.html. 404 Richard J. Goldstone, “Prosecuting Rape as a War Crime,” Case Western Reserve Journal of International Law 34 (2002): 281. 405 Bass, “Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, 221. 406 Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals,” 122. 407 Benjamin N. Schiff, ”Building the International Criminal Court” (Cambridge University Press, 2008), 56. 408 Goldstone, “Prosecuting Rape as a War Crime,” 281. 409 Goldstone, “For Humanity”, 105.

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3.2.3 Formal considerations

3.2.3.1 Substantive goals and initial policy criteria

The adverse context in which the OTP was operating obliged Goldstone to anticipate and react to the circumstances created outside his office. This had a direct influence on the manner in which policy decisions were taken. Furthermore, the constant negotiations for the survival of the tribunal and the lack of prioritization within EU and UN peace talk dynamics affected Goldstone’s capacity to provide a clear disclosure of prosecutorial guidelines.410

It was noticed that Goldstone played an important political goal concerning legitimacy and fundraising but showed less interest in formulating and implementing a prosecutorial strategy411 Goldstone correlated the objectives of the OTP’s policy with the particular role envisaged for criminal justice in an international context:

The link between peace and justice clearly shows that, in the international realm, the criminal law has a different focus from that in the domestic arena … The crucial link between criminal prosecution and the preservation of peace and stability shift the focus away from pure retribution (as in the case of domestic criminal law), to notions of restoring the rule of law and justly establishing the truth, thereby preventing denials and revisionism. Clearly, punishing the perpetrators of international crimes and providing the victimized population with a sense of retribution does play an important role.412

In November 1994 he presented a list of principles in a public lecture that were later published in an international journal. The principles were based on three

410 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 117. 411 Hagan, “Justice in the Balkans”, 61. 412 Goldstone, “The Role of the United Nations in the Prosecution of International War Criminals,” 120.

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pillars: The political independence of the Prosecutor, so that “decisions … will be taken solely on professional basis and without regard to political considerations”; the culpability of the persons indicted based “on the evidence available from time to time”, and the gravity of the offence: “the most guilty are those who ordered them. At the same time, all efforts will be taken to ensure that those who executed such orders are also brought within the net of indictments”.413

The list stated an inarticulate correlation between legal standards, the potential deterrent effect and the image of the tribunal. The guidelines formally declared that the prosecution would be guided by evidence and gravity and not by politics.414 Nonetheless, as the tribunal was in a process of establishment, under Goldstone, the majority of indictments were issued with the aim of reinforcing the institution and “the issuing of indictments was the only means of establishing the image and credibility of the tribunal”.415

3.2.3.2 The 1995 criteria In October 1995, the ICTY adopted an internal policy document with a set of selection criteria to “enable an effective allocation of resources and the fulfilments of the Tribunal’s mandate”. 416 These did not include further explanations nor were they addressed by Goldstone at the time, but were published in 2009.417

These guidelines were centred on the personal position of the defendant in the decision-making process during the armed conflict and the investigated incidents, as well as the seriousness of the offence, defined by the number of victims, nature of crimes, nationality of the perpetrator and victims and the availability of evidence and witness among others, as listed below:

413 Richard Goldstone, “The International Tribunal for the Former Yugoslavia: A Case Study in Security Council Action,” Duke Journal of Comparative & International Law 6, no. 1 (October 1, 1995): 5–10. 414 Scharf, “Balkan Justice,” 86. 415 Kerr, “The International Criminal Tribunal for the Former Yugoslavia,” 99–100. 416 Claudia Angermaier, “Case Selection and Prioritization Criteria in the Work of the International Criminal Tribunal for the Former Yugoslavia,” in “Criteria for Prioritizing and Selecting Core International Crimes Cases,” ed. Morten Bergsmo (Oslo: Forum for International Criminal and Humanitarian Law, 2010), 31. 417 Angermaier, “Case Selection and Prioritization Criteria in the Work of the International Criminal Tribunal for the Former Yugoslavia,” 31–33.

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The first list “(a) person” contained the following factors:

• Position in hierarchy under investigation; • political, military, paramilitary or civilian leader; • leadership at municipal, regional or national level; • nationality; • role/participation in policy/strategy decisions; • personal culpability for specific atrocities; • notoriousness/responsibility for particularly heinous acts; • extent of direct participation in the alleged incidents; • authority and control exercised by the suspect; • the suspect’s alleged notice and knowledge of acts by subordinates; • arrest potential; • evidence/witness availability; • media/government/NGO target; and • potential roll-over witness/likelihood of linkage evidence.

The group of criteria entitle “(b) serious violation” listed the following:

• Number of victims; • nature of acts; • area of destruction; • duration and repetition of the offence; • location of the crime; • linkage to other cases; • nationality of perpetrators/victims; • arrest potential; • evidence/witness availability; • showcase or pattern crime; and • media/government/NGO target.

In the section “(c) policy considerations” were listed:

• Advancement of international jurisprudence (reinforcement of existing norms, building precedent, clarifying and advancing the scope of existing protections); • willingness and ability of national courts to prosecute the alleged perpetrator; • potential symbolic or deterrent value of prosecution; • public perception concerning the effective functioning of Tribunal; • public perception concerning immediate response to on-going atrocities; • public perception concerning impartiality/balance.

The section “(d) practical considerations” contains:

• Available investigative resources; • impact that the new investigation will have on ongoing investigations and on making existing indictments trial ready;

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• the estimated time to complete the investigation; • timing of the investigation (for example, the impact initiating a particular investigation will have on the ability to conduct future investigations in the country); • possibility or likelihood of arrest of the alleged perpetrator; • consideration of other work carried out in relation to the case • (including a check against Rules of Road cases); • completeness of evidence; • availability of exculpatory information and evidence; and • consideration of other OTP investigations in the same geographical area, particularly those of “opposite ethnicity” perpetrators and victims.

And, lastly, the group “(e) other relevant considerations” included the following criteria:

• The particular statutory offence or parts thereof, that can be charged; • the charging theories available; • potential legal impediments to prosecution; • potential defences; • theory of liability and legal framework of each potential suspect; • the extent to which the crime base fits in with current investigations and overall strategic direction; • the extent to which a successful investigation/prosecution of the case would further the strategic aims; • the extent to which the case can take the investigation to higher political, military, police and civil chains of command; and • to what extent the case fits into a larger pattern-type of on-going or future investigations and prosecutions.

Additionally, the inclusion of broad political and practical considerations indicates that these criteria provided a catalogue rather than a focused policy for case selection implementation. There are two arguments that could be made with relation to the list, firstly, the indicators point to directing a rationally and cost- effective service to use the OTP resources418 and secondly, the inscription of guidelines related with the public image and perception of the tribunal, illustrates the circumstances “that prompted the prosecutor to do everything possible in order to achieve the visibility and credibility of the tribunal”.419

418 Morten Bergsmo et al., “The Backlog of Core International Crimes Case Files in Bosnia and Herzegovina”, 3 (Forum for International Criminal and Humanitarian Law, 2009), 107. 419. de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 118. (My translation)

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When viewed together, the 1994 and 1995 guidelines denote the problematic relationship between the external political aims for which the tribunal was established and its internal functions. In this sense, the need for securing the cooperation and assistance of states in order to obtain evidence and custody is merged with the interest of maintaining the independence and impartiality of the OTP. The internal mandate was a core requirement for the realization of the external mandate. Conversely, in carrying out its internal function, it was necessary to take into consideration the impact on the fulfilment of its external obligation. “[I]t could not do either without entering into diplomatic relations with states and international organizations, and thereby becoming a political actor in itself”.420 Goldstone expressed the unviability of this position. “No prosecutor can act that way. I wasn’t a politician. I had no political advisers. I didn’t know what the politicians were doing and for them to expect me to guess what the political ramifications would be – would be ridiculous”.421

3.2.4 Policy decisions In order to position the tribunal as a valuable international institution, Goldstone issued a series of public indictments with the clear strategy that “what counted most of all was to set the wheels of prosecution in motion.”422 An example was the decision to issue the first indictment against Dragan Nicolić preceding the meeting of the Advisory Committee on Administrative and Budgetary Questions (ACABQ).423 Dragan Nicolić, a former Serbian commander who was a comparatively low-level member of the Bosnian Serb forces, was accused because he “was the only person against whom we had sufficient evidence to justify an indictment, but … [he was]

420 Kerr, “The International Criminal Tribunal for the Former Yugoslavia”, 177. Richard Goldstone, “A View from the Prosecution” Journal of International Criminal Justice 2 (2004): 380. 421 “Against All Odds. The First Ten Years of the Tribunal.” 422 Frederiek de Vlaming, “Selection of Defendants,” in International Prosecutors, ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert, 1 edition (Oxford, UK: Oxford University Press, 2012), 565. 423 “Against All Odds. The First Ten Years of the Tribunal”. See further, Chapter 4, section 4.2.1.1.

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hardly an appropriate defendant for the first indictment issued by the first ever international war crimes tribunal.”424 After Nicolić, and following a public complaint from the judges that they had nothing to do, 425 in February 1995, Goldstone jointly charged fifteen Bosnian Serbs for crimes committed in the summer of 1992 in the Omarska camp at Prijedor, in North-western Bosnia.426 Simultaneously, Dusko Tadić and Goran Borovnica were also charged, arguably because it was opportune, as the accused were already in custody and facing trial in Germany.427 Goldstone records:

It is highly unsatisfactory that someone at the level of Tadić should face trial … but it’s really an academic question because we had no choice; Tadić was the only accused available to bring before the tribunal at a time when the judges, the media, and the international community were clamouring for us to begin prosecutions.428

On 21 July 1995, Goldstone charged twenty Bosnian Serbs accused in three indictments for crimes committed in Bosnia at the Keraterm camp in Prijedor, Bosanski Samac and the Luka camp.429 In addition, on 24 July Radovan Karadžić and Ratko Mladić were indicted for the sniping campaign against civilians in

424 Goldstone, “For Humanity”, 105–106.Goldstone, “Prosecuting Rape as a War Crime,” 281. 425 “Against All Odds. The First Ten Years of the Tribunal”. Harmon and Gaynor, “Prosecuting Massive Crimes with Primitive Tools,” 419. 426 ICTY, IT-95-4-I. Prosecutor v. Meakić, Prcač, Gruban, Govedarica, Gruban, Kostić, Paspalj, Pavlić, Popović, Predojević, Savić, Babić, Janjić, Knežević & Šaponja - Initial Indictment (1995). 427 ICTY, IT-94-1-I. Prosecutor v. Tadic & Borovnica - Initial Indictment (1995). Kerr, ”The International Criminal Tribunal for the Former Yugoslavia”, 181. Richard Goldstone, “Exposing Human Rights Abuses - A Help or Hindrance to Reconciliation”, Hastings Constitutional Law Quarterly 22 (1995 1994): 618. 428 Williams and Scharf, “Peace with Justice?”, 115. 429 ICTY, IT-95-8-I. Prosecutor v. Sikirica, Došen, Fuštar, Kulundžija, Banović, Banović, Janjić, Knežević, Kondić, Lajić, Šaponja & Timarac - Indictment (1995). ICTY, IT-95-9. Prosecutor v. Miljkovic, Simic, Simic, Tadic, Todorovic & Zaric - Initial Indictment (1995). ICTY, IT-95-10-I. Prosecutor v. Jelisic & Cesic - Indictment (1995).

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Sarajevo and the using of UN peacekeepers as human shields.430 One day later he charged Milan Martić for firing cluster bombs into central Zagreb.431 In August 1995, Ivica Rajić, the first Bosnian Croat to be accused, was publicly indicted for the attack on Stupni Do by the Croatian Defence Council (HVO).432 The next group of indictments were issued between 26 October and 14 November 1995. A first indictment was against three JNA officers for the killing of 261 “non- Serbs” taken from the Vukovar Hospital in Croatia,433 three additional indictments were issued for the crimes of Lašva Valley434 and one for the events in Ahmići.435 Prominently, Radovan Karadžić and Ratko Mladić were charged for a second time (initial indictment) in connection with the takeover of Srebrenica.436 Goldstone’s indictment policy had three main aspects; it was primarily dictated by circumstances. Secondly, the policy was a meant to improve the public image of the tribunal, and most prominently it was based on a pyramidal structure.

3.2.4.1 Dictated by circumstance

The difficulties in carrying out investigations during the conflict in Bosnia, obliged Goldstone to concentrate on crimes that other organizations had investigated and reported. In practical terms, the prosecution had to rely in many cases on inaccurate numbers and findings that were not intended to expose the culpability of political and military leaders.437

430 IT-95-5-I Prosecutor v. Mladić & Karadžić (ICTY 1995). 431 ICTY, IT-95-11. Prosecutor v. Martic - Initial Indictment (1995). 432 ICTY, IT-95-12. Prosecutor v. Rajic - Initial Indictment (1995). 433 ICTY, IT-95-13a. Prosecutor v. Mile Mrkšić at al. (1995). 434 ICTY, IT-95-14. Prosecutor v. Kordic, Blaskic, Cerkez, Santic, Skopljak & Aleksovski (1995). ICTY, IT-95-14. Prosecutor v. Kordić, Blaškić, Čerkez, Šantić, Skopljak & Aleksovski - Initial Indictment (1995). ICTY, IT-95-14. Prosecutor v. Zlato Aleksovski et al. (1995). 435 ICTY, IT-95-16. Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Šantić, Alilović, Josipović, Katava & Papić - Initial Indictment (1995). 436 ICTY, IT-95-18-I. Prosecutor v. Karadzic & Mladic - Initial Indictment, “Srebrenica” (1995). 437 Frederiek de Vlaming, “Selection of Defendants,” in “International Prosecutors,” ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert, 1st edition (Oxford, UK: Oxford University Press, 2012), 551.

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The pressure from the SC and its own judiciary to deliver indictments also reinforced Goldstone’s preference to prosecute suspects who were already in the hands of other prosecuting authorities or international forces in Bosnia.438 The lack of enforceability of arrest warrants crafted the procedural solution known as rule 61 which allowed denouncing the failure in assistance by a subsequent notification to the Security Council of the lack of state cooperation.439

3.2.4.2 Public image

Goldstone’s first months in charge of the OTP were filled with media appearances. During the first month alone he gave two dozen interviews and news conferences,440 and in his tenure “most of the indictments were issued with a fanfare of publicity and a number of rule 61 hearings”.441 As he declared, “I think I spent more of my time on diplomacy and pushing and talking and screaming and shouting for the tribunal than on the simply prosecutorial work”.442 These early indictments had to be public “because they were a concrete signal that the tribunal was operating”.443 The merging of Goldstone’s role as a chief prosecutor and his behaviour as an institutional agent for the tribunal facilitated his function for raising the public profile of the tribunal through the issuing of accusatory documents.

3.2.4.3 The pyramidal strategy

The determination was that indictments should focus on those “who were most guilty and against whom sufficient reliable evidence was available”.444 However,

438 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals,” 250. 439 Applicable in the situation in which a state refuses to hand over a suspect. Mark Thieroff and Edward A. Jr Amley, “Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61,” Yale Journal of International Law 23 (1998). 440 Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 68. 441 Kerr, “The International Criminal Tribunal for the Former Yugoslavia”, 183. 442 Hagan and Levi, “Crimes of War and the Force of Law,” 1514. 443 Kerr, “The International Criminal Tribunal for the Former Yugoslavia”, 183. 444 Goldstone, “Exposing Human Rights Abuses--A Help or Hindrance to Reconciliation,” 617.

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Goldstone followed a pyramidal strategy that focused on mid- and lower-level perpetrators, because he expected that investigations into crimes by military and political top leaders would be too complicated and time-consuming.445 He justified pursuing low-level perpetrators arguing that this strategy would eventually lead to information about the superiors and that “later prosecutions would follow a ladder upwards”.446 While this strategy is well known in domestic contexts, in the international arena his approach was heavily criticized, as it was seen contradicting the external and internal mandate of the tribunal. It was required that the OTP showed that investigations were significant and successful in relation to the external directive of contributing to peace and stabilization in the Balkans.447 The allocation of resources to charge low level accused was felt by the judges not to meet the expectations of the Security Council and the world community at large.448 These low-level defendants flooded the tribunal with minor cases, creating a backlog of mainly ‘petty defendants’. 449 As Bass recollects, staffers in the OTP were also aware of the “small fish” problem. In 1997 a senior tribunal officer would describe the list of indictees as “this fucking list of idiots”.450

The pyramidal strategy concluded with a caseload against 70 suspects. A great majority of them were foot soldiers451, had carried out tasks in detentions camps452, were members of paramilitary units 453or had been active in village-level incidents. Some had no formal position at all. The exceptions to this policy were the indictment against Bosnian Serb politician Radovan Karadžić and the military

445 de Vlaming, “Selection of Defendants.” 446 Minna Schrag, “Lessons Learned from ICTY Experience,” Journal of International Criminal Justice 2 (2004): 430. 447 Ibid. 448 “The Judges of the Tribunal for the Former Yugoslavia Express Their Concern Regarding the Substance of Their Programme of Judicial Work for 1995.,” February 1, 1995, http://www.icty.org/sid/7251. 449 Antonio Cassese, “The ICTY: A Living and Vital Reality,” Journal of International Criminal Justice 2 (2004): 595. 450 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals”, 223. 451 ICTY, IT-96-22. Prosecutor v. Erdemovic - Indictment (1996). 452 ICTY, IT-96-21. Prosecutor v. Delalic, Mucic, Delic & Landzo - Initial Indictment (1996). 453 ICTY, IT-95-17/1. Prosecutor v. Furundzija - Initial Indictment (1995).

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leader Ratko Mladić.454

3.3 Louise Arbour (October 1996 – September 1999)

3.3.1 Introduction

Louise Arbour was appointed as chief prosecutor on February 29, 1996 following a recommendation by Richard Goldstone to the SC. Arbour took over the OTP at the beginning of October the same year.455 She lacked any prosecutorial background but her prior practice as a judge on the Ontario Court of Appeals made her very critical of the SC involvement in the constitution of the Tribunal and the OTP: “Anybody with half a brain would know that you don’t launch an investigative and judicial tribunal the way the ICTY was set up … Isn’t it clear that something is wrong with that picture?”456

Before assuming her duties, Arbour visited the areas under investigation for the Vukovar indictments.457 She was confronted with the practical problems of dependency and unreliability of the current OTP’s organization. Her main aim during her tenure was “to turn the OTP into a modern and efficient law enforcement office”458 leaving behind what she considered to be a weak approach from her predecessor. Reflecting over the three years she led the OTP, Arbour declared “We shifted from being in the “soft” human rights monitoring, NGO community into a criminal law enforcement military culture, which is where we belong”. 459

454 de Vlaming, “Selection of Defendants,” 565. 455 Carol Off, “The Lion, the Fox and the Eagle: A Story of Generals and Justice in Yugoslav and Rwanda” (Toronto: Vintage Books Canada, 2002), 273–76. 456 Arbour quoted in Hagan, “Justice in the Balkans,” 97. 457 In reference to the following indictments, ICTY, IT-95-13a. Prosecutor v. Mrkšić, Radić & Šljivančanin - Initial Indictment (1995). ICTY, IT-95-13a. Prosecutor v. Mrkšić, Radić, Šljivačanin & Dokmanović - Initial Indictment (1996). ICTY, IT-95-13a. Prosecutor v. Mrkšić, Radić, Šljivančanin & Dokmanović - First Amended Indictment (1996). 458 Kerr, “The International Criminal Tribunal for the Former Yugoslavia,” 188. 459 “Louise Arbour - Farewell Interview,” Institute for War and Peace Reporting. https://iwpr.net/global-voices/louise-arbour-farewell-interview.

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Arbour faced four issues at the beginning of her tenure; firstly, the lack of authority of the tribunal practically reflected in the constant practice of non- cooperation and defiance of Croatia, Serbia and Bosnia-Herzegovina. In addition, NATO’s unwillingness to arrest indictees through its proxy SFOR resulted in total of only six persons in custody, despite the large number of indictees during the tenure of her predecessor. 460

Secondly, the early pressure to secure indictments during Goldstone’s term lowered the standard of the early indictments and consequently some of them were barely meeting prima facie case. Commenting on the situation, deputy prosecutor Graham Blewitt, criticized the judges for pressuring the OTP to issue indictments and then complaining when the cases were not ready. 461

Thirdly, in contrast to previous years, the OTP had to continue the investigation and prosecution of a vast number of cases left from the previous tenure while simultaneously allocating resources to the crisis in Kosovo (1998-1999).462 Consequently Arbour’s problem was that the scarce resources would be consumed in the trials of the low level accused, without reaching the highest levels of command responsibility.463

Fourthly, the overuse of rule 61 had caused the judges to consider launching trials in absentia, a possibility that, if combined with the lack of arrests, would shatter the credibility of the tribunal and likely shorten its lifespan.464

460 Hagan, “Justice in the Balkans,” 97. 461 Concerning prima facie requirements, see rule 47 RPE. For example, the imprecisions concerning the charges and the lack of preparation for the Blaškić indictments meant the trial dragged on for over two years. Kerr, “The International Criminal Tribunal for the Former Yugoslavia,” 189. Additionally, Eric Gordy, “The Blaškić Trial: Politics, the Control of Information and Command Responsibility,” Southeastern Europe 36, no. 1 (January 1, 2012): 60–86. ICTY, IT-95-14. Prosecutor v. Kordić, Blaškić, Čerkez, Šantić, Skopljak & Aleksovski - Initial Indictment (1995). ICTY, IT-95-14. Prosecutor v. Blaškić - First Amended Indictment (1996).ICTY, IT-95-14. Prosecutor v. Blaškić - Second Amended Indictment (1997). 462 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” August 10, 1998, para. 111. 463 Kerr, “The International Criminal Tribunal for the Former Yugoslavia”, 189. Bass, ”Stay the Hand of Vengeance”. The Politics of War Crimes Tribunals”, 261. 464 “Without arrested indictees the tribunal would be out of business”. Michael Ignatieff, “Virtual War. Kosovo and Beyond” (London: Chatto & Windus, 2000), 126.

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3.3.2 Contextual factors

3.3.2.1 Problems of cooperation and compliance

During the first year of Arbour’s tenure there were few advances for the tribunal concerning the implementation of the Dayton Agreement. A large number of indictees were holding official police positions in the Republic Srpska and United Nations personnel had constant resistance in the field. Subsequently, UN workers had their movement restricted by the international police task force to avoid them coming into contact with indicted war crimes suspects.465

From 1997, Arbour positioned the OTP in better relations with US and UK. The collaboration with US Secretary of State, Madeleine Albright and the appointment of special personnel responsible for the transmission of information from both states’ security services.466

The intervention of Albright signals clearly the extent to which the OTP was relying on political external frameworks to obtain cooperation concerning its indictment policy. On May 1997, Albright visited the former Yugoslavia. She inquired of Croatian president Tuđjman about the whereabouts of indictee Dario Kordić and threatened with blocking loans from the International Monetary Fund (IMF) if compliance was not provided. To Milošević, Albright requested to turn over three indicted soldiers or “keep stonewalling and assure [Serbia’s] isolation”.467

465 IPTF was established in the context of the Dayton Peace Agreement to facilitate operations in Bosnia and Herzegovina. See Annex 11. The General Framework Agreement for Peace in Bosnia and Herzegovina, 1995, http://www.osce.org/bih/126173?download=true. United Nations, “Fourth Annual Report of The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” September 18, 1997, paras. 132–36. Additionally, Bass, ”Stay the Hand of Vengeance.The Politics of War Crimes Tribunals,” 263– 65. 466 Bass, “Stay the Hand of Vengeance. The Politics of War Crimes Tribunals,” 273. 467 Tyler Marshall, “Albright Blisters Balkan Leaders,” Los Angeles Times, June 1, 1997, http://articles.latimes.com/1997-06-01/news/mn-64614_1_madeleine-albright. “Trials, Tribulations and Tribunals,” The Economist, June 1997, http://www.economist.com/node/91992.

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The cooperation with NATO and SFOR remained problematic for most of Arbour’s office and the low standard of Goldstone’s indictments began to backfire in December 1997 when she was forced to withdraw the indictments against Katava, Skopljak and Šantić, three Croat suspects in detention. She did not have the evidence to substantiate the charges brought by Goldstone nor the additional resources or cooperation of Bosnia-Herzegovina to perform proper investigations into their alleged crimes. 468

When Arbour launched an investigation into the crimes committed during the Croatian Operation Storm in August 1995,469 the United States’ role in the preparation of the attack and its support of the Croat Army (HV) became apparent. Storm was used to push the Serbs into assenting to the Dayton agreement and investigations into US support for the operation was unwelcome. “The Croats were so successful that Washington wanted to stop their advances in late August, but Holbrooke and Galbraith both resisted this move because they recognized that holding significant territory during negotiation would put the Federation in a more powerful bargaining position”. 470

The US did not provide any material to the OTP and the US government was especially unhelpful with relation to the shelling of Knin. When the next chief prosecutor advanced investigations into the incidents, she was forced to negotiate the charges of the indictments.471

468 Off, “The Lion, the Fox and the Eagle: A Story of Generals and Justice in Yugoslav and Rwanda”, 305–6. ICTY, IT-95-16. Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Šantić, Alilović, Josipović, Katava & Papić - Initial Indictment (1995).ICTY, IT-95-14. Prosecutor v. Kordić, Blaškić, Čerkez, Šantić, Skopljak & Aleksovski - Initial Indictment (1995). 469 Additionally, Raymond Bonner, “War Crimes Panel Finds Croat Troops ‘Cleansed’ the Serbs,” The New York Times, March 21, 1999, sec. World, http://www.nytimes.com/1999/03/21/world/war-crimes-panel-finds-croat-troops-cleansed- the-serbs.html. Human Rights Watch, “Croatia: Impunity for Abused Committed During ‘Operation Storm’ and the Denial of the Right of Refugees to Return to the Krajina,” August 1996, http://www.hrw.org/reports/1996/Croatia.htm. Human Rights Watch, “Bosnia and Hercegovina. The Unindicted: Reaping the Rewards of ‘Ethnic Cleansing,’” January 1997, http://www.hrw.org/reports/1997/bosnia2/. 470 John Ashbrook and Spencer D. Bakich, “Storming to Partition: Croatia, the United States, and Krajina in the Yugoslav War,” Small Wars & Insurgencies 21, no. 4 (December 1, 2010): 549.Sundhaussen, ”Jugoslawien und seine Nachfolgestaaten 1943-2011”, 369–70. 471 Bonner, “War Crimes Panel Finds Croat Troops ‘Cleansed’ the Serbs.” See below Del Ponte.

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The relationship with Balkan states remained challenging and uncooperative. In the 1999 annual report, Arbour confirmed channelling several reports to the Security Council about the lack of compliance. There were virtually no consistent actions taken by the SC during the beginning of Arbour’s tenure to secure cooperation. Throughout her mandate the prosecutor had to navigate around defiance of arrest warrants, the lack of issuing of visas for OTP investigators to travel to Kosovo, the lack of assistance to the OTP regarding relevant information and the constant anti-tribunal propaganda.472Arbour openly blamed the Security Council for the problems of lack of support. 473

3.3.2.2 The Kosovo Crisis The application of the “equal treatment” doctrine resulted in the escalation of violence. Up until the summer of 1998, three aspects became relevant for the OTP, firstly, the diplomatic commitment of political non-involvement in the negotiation process between Serbian forces and the KLA, secondly, the reaffirmation of territorial sovereignty and thirdly, an allowance for Milošević to continue the use of overwhelming force against the KLA, by labelling it a “terrorist organization”.474

This doctrine ran parallel to the documentation of systematic violations of human rights against Kosovo Albanians by the UN Commission on Human Rights, special rapporteurs and treaty based bodies that dated from 1993. These reports were jointly discussed in the UN General Assembly and a series of specific resolutions were approved addressing the conditions and escalation of violence in Kosovo. Moreover, a United Nations High Commission for Refugees (UNHCR) office was re-established in Belgrade in 1996 and between August and September 1998 Kosovo hosted more than 30 international NGOs and UN agencies such as WFP, ICRC and UNHCR.475

472 United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” August 25, 1999, 25–27. 473 Louise Arbour, Can We Prevent Crimes against Humanity?, interview by Martine Jacot, Unesco Curier, December 1999, https://www.questia.com/read/1G1-58564123/can-we- prevent-crimes-against-humanity. 474 Williams and Scharf, “Peace with Justice?”, 175. 475 Tony Weymouth and Stanley Henig, “The Kosovo Crisis: The Last American War in Europe?,” (Pearson Education, 2001), 269. For a comprehensive list of all the documents issued by UN bodies and NGO’s in connection with the Kosovo Crisis see, Heike Krieger, “The 120

In March 1998, Amnesty International (AI), Human Rights Watch (HRW) and the International Federation of Human Rights Leagues (FIDH) warned the commission about war crimes, calling on criminal investigations. In an open letter to Arbour, HRW stated “Evidence strongly suggests that war crimes are being committed, including arbitrary and indiscriminate attacks against civilians and the summary execution of detainees. We call on you to launch an immediate investigation of these apparent atrocities and to announce your office’s intention to prosecute those responsible”. 476

On 9 March 1998, the member states of the “contact group” issued a statement urging the OTP to begin gathering information related to the violence in Kosovo that might fall within its jurisdiction. 477 A day later, Arbour announced that the ICTY had assumed jurisdiction over Kosovo and that the OTP had started collecting information and evidence in relation to the Kosovo incidents.478 However, contrary to the public statements of the OTP, Arbour only issued four initial indictments during the remaining year of 1998 and two initial indictments between January and March 1999. None of them were connected to the Kosovo events. This fact and the vast material available documenting massive criminal

Kosovo Conflict and International Law: An Analytical Documentation 1974-1999” (Cambridge University Press, 2001). Reliefweb, “UN Inter-Agency Update on Kosovo Situation Report 65” (Reliefweb, September 30, 1998), http://reliefweb.int/report/albania/un- inter-agency-update-kosovo-situation-report-65. 476 Human Rights Watch, “Human Rights Watch Calls on Yugoslav War Crimes Tribunal to Investigate Possible War Crimes in Kosovo,” March 7, 1998, https://www.hrw.org/news/1998/03/07/human-rights-watch-calls-yugoslav-war-crimes- tribunal-investigate-possible-war. FIDH, “Lettre Ouverte Aux Etats Membres de l’Union Européenne,” March 2, 1998, https://www.fidh.org/La-Federation-internationale-des-ligues- des-droits-de-l-homme/europe/kosovo/lettre-ouverte-aux-etats-membres-de-l-union- europeenne-1244. More noticeable are the reports from Amnesty International published since 1989 and compiled in a two volume document. The introduction reads “It can be argued that the chronic neglect of the warning issued in these reports and the almost complete absence of redress for all Kosovo’s people has been one of the chief catalysts for the current conflict.” Amnesty International, “Kosovo: A Decade of Unheeded Warnings” (Amnesty International, May 1999). 477 After the Crisis of Bosnia, the principal group of nations that monitored international policy in Kosovo was the “Contact Group”, composed by United States, Britain, France, Germany and Italy. Contact Group, “Statement on Kosovo. London Contact Group Meeting,” March 9, 1998, http://1997-2001.state.gov/www/travels/980309_kosovo.html. 478 ICTY, “Press Release. CC/PIO/302-E. The Prosecutor’s Statement Regarding the Tribunal’s Jurisdiction over Kosovo,” March 10, 1998, http://www.icty.org/sid/7683. Rajkovic, The Politics of International Law and Compliance, 55–56.

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events during this period of time, voices the argument that in practical terms she either “eschewed meaningful involvement in the Kosovo crisis”479 or that [at least] the OTP did not receive the necessary diplomatic support to carry out proper investigations in Kosovo.480 The outcome of the October 1998 Peace conference with Milošević brokered by Holbrooke revealed again the low priority given to the tribunal and the work of the OTP. The agreement contained no obligation between the Federal Republic of Yugoslavia towards the ICTY despite Arbour’s public complaints of obstructionism.481 On January 17, 1999, after the executed bodies of 45 farmers and their children were reported in Račak482 the head of the OSCE observer mission called the tribunal to be present ‘on the spot’ in view of the commission of “crimes against humanity”. One day afterwards, Arbour showed up at the Macedonian border in front of the international press only to be denied a visa to carry out investigations.483

It felt like a total failure, total defeat. I stayed on the border, at the hotel nearby for 2 or 3 days … trying to negotiate my way in. I came back to the Hague almost ready to write a letter of resignation. And yet when I arrived in my office in The Hague, the staff were lined up applauding. This was viewed from the outside as a great success … a moment of force and of visibility. This confrontation at the border was immensely important to explain to the world the work of the Tribunal.484

479 Williams and Scharf, “Peace with Justice?”, 128. 480 Peskin, “International Justice in Rwanda and the Balkans”, 55. 481 Ibid., 56–57. 482 Jane Perlez, “Kosovo Massacre is Called Revenge,” The New York Times, January 22, 1999, sec. World, http://www.nytimes.com/1999/01/22/world/kosovo-massacre-is-called- revenge.html. 483 Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 121–22. 484 “Against All Odds. The First Ten Years of the Tribunal.”

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3.3.2.3 NATO intervention

The bombing campaigned by NATO launched in March 1999 and the subsequent presence of SFOR in Kosovo, allowed Arbour to dispatch teams of investigators in the field simultaneously creating an opportunity to turn to NATO member states for assistance. 485 For the first time in the history of the tribunal, NATO members were willing to share intelligence information with the OTP. 486 This was precisely the type of information that was relevant for Arbour in securing indictments against the highest chain of command:

Refugee accounts are critical, but they are not enough on their own. The victims didn’t see the command structures or the people given the orders at the highest level. We therefore need the sophisticated kind of assistance that only states can provide.487

There was a combination of world media expectations and the new role of the OTP as a real-time justice device. “We had to be out there”488 when the information began to flow and the evidence of crimes multiplied “Arbour came to the conclusion that if the ICTY was to have any credibility it had to act, and act quickly, in response to the on-going crimes. Up until this point, all of the ICTY’s investigations had focused on historical events, crimes that had been committed months or even years before. At no time had the Prosecutor initiated an

485 United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” paras. 126-127–28. 486 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 132. ICTY, “Press Release. CC/PUI/398-E,” April 21, 1999, http://www.icty.org/sid/7770. Cooperation was also formalized in the proposed Rambouillet Accords of June 7, 1999 and the Security Council Resolution 1244. Security Council, UN Security Council Resolution S/1999/648. Rambouillet Accords. Interim Agreement for Peace and Self-Government in Kosovo, 1999. United Nations. Security Council, UN Security Council Resolution S/RES/1244, 1999. 487 ICTY, “Press Release. CC/PUI/398-E.” 488 Statement by Arbour in Hagan and Levi, “Crimes of War and the Force of Law,” 1517.

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investigation of crimes that were transpiring. During the last week of March – just one week after the bombing began – Arbour took the decision to do just that.”489

Arbour instructed her team of prosecutors and investigators to keep an eye open towards preparing an indictment as soon as they could gather sufficient evidence for crimes they were hearing reported.490 It was clear that Kosovo was the place where it would be feasible to progress an indictment against Milošević, which followed in late May 1999.491

On the other hand, the fact that the NATO bombing campaign (24.3.1999- 09.06.1999) was deployed without the approval of the Security Council, was used by Belgrade to request Arbour to open charges against “Clinton and associates” for the illegal and criminal aggression against Yugoslavia. 492 NATO’s bombing raids against civilians and non-military objectives were condemned, bringing press attention to civilian casualties.493

During the operation, the OTP overlooked NATO’s actions while Arbour and the President of the ICTY simultaneously issued six press statements either warning Milošević against violations of international humanitarian law or indicating his responsibility.494 In the course of the war, joint initiatives between NATO’s

489 Statement by former ICTY Trial attorney Clint Williamson, member of Arbour’s Kosovo team. Clint Williamson, “Real Justice, in Time,” in “The Milošević Trial. An Autopsy” (Oxford/ New York: Oxford University Press, 2013), 81. 490 Ibid. 491 John Hagan and Ron Levi, “Social Skill, the Milosevic Indictment, and the Rebirth of International Criminal Justice,” European Journal of Criminology 1, no. 4 (October 1, 2004): 461. Williamson, “Real Justice, in Time,” 86–87. 492 See Chapter VII. UN Charter. Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 129. 493 “Nato’s Bombing Blunders,” BBC, June 1, 1999, sec. Europe, http://news.bbc.co.uk/2/hi/europe/340966.stm. Human Rights Watch, “Civilian Deaths in the NATO Air Campaign,” February 2, 2000.Amnesty International, “NATO/Federal Republic of Yugoslavia. ‘Collateral Damage’ or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force” (Amnesty International, May 6, 2000). 494 ICTY, “Press Release. JL/PIU/389-E. 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.,” March 26, 1999, http://www.icty.org/sid/7780. ICTY, “Press Release. CC/PIU/392-E. Kosovo: Statement by the President of the ICTY, Gabrielle Kirk McDonald.,” March 31, 1999, http://www.icty.org/sid/7777.ICTY, “Press Release. CC/PIU/391-E. Statement by the Prosecutor.,” March 31, 1999, http://www.icty.org/sid/7778.ICTY, “Press Release. 124

member states, the OTP and the Presidency of the tribunal495 fed the perception that Arbour was acting as the legal arm of NATO. 496 “I accept the assurances of NATO leaders that they intend to conduct their operations in the Federal Republic of Yugoslavia in full compliance with international humanitarian law”.497 Concerning her criticized cooperation with NATO member states, she declared “There are circumstances in which justice and politics interests coincide. (sic)”498 Likewise stating “The question is not whether we are free [to indict Milošević] but whether we will now be better equipped by those who may hold information in moving forward in this investigation.”499

3.3.2.4 Limited resources

The tribunal had a regular budgetary increase during the three years of Arbour tenure, more than tripling the annual UN operative funds from US$ 30 million in 1996 to $100 million by 1999.500 In the period 1997-1998 29.3 per cent of the

JL/PUI/394-E. President McDonald Writes to NATO Ministers of Foreign Affairs on Situation in Kosovo.,” April 8, 1999, http://www.icty.org/sid/7774. ICTY, “Press Release. JL/PIU/402- E. ICTY - TPIY : ‘The International Criminal Tribunal for the Former Yugoslavia: Making a Difference or Making Excuses?,’” May 13, 1999, http://www.icty.org/sid/7766. ICTY, “Press Release. JL/PIU/401-E. Introductory Statement by Justice Louise Arbour, Prosecutor ICTY and ICTR at the Launch of the ICC Coalition’s Global Ratification Campaign.,” May 13, 1999, http://www.icty.org/sid/7767. 495 Such as the public statement supporting the work of Madeleine Albright, who was heavily involved in NATO intervention, US public donation of US $500 000 to the tribunal and OTP’s close cooperation with Washington adviser Paul Risley. Rajkovic, The Politics of International Law and Compliance, 58. See additionally, ICTY, “Press Release. CC/PUI/398-E.” 496 Hazan, “Justice in a Time of War. The True Story Behind the International Criminal Tribunal for the Former Yugoslavia”, 129. 497 ICTY, “Press Release. JL/PIU/401-E. Introductory Statement by Justice Louise Arbour, Prosecutor ICTY and ICTR at the Launch of the ICC Coalition’s Global Ratification Campaign.” 498 Quoted by IWPR, “ICTY’s Kosovo Investigation: Suspicions of Manipulation,” Institute for War and Peace Reporting, April 24, 1999, https://iwpr.net/global-voices/ictys-kosovo- investigation-suspicions. 499 Ibid. 500 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” paras. 156–60.United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” paras. 125

budget was allocated to the OTP. However, during these years the resources at the OTP were in constant shortage and there was a relentless pleads to increase allowance from the SC in order to enable the prosecutor to continue its investigations in the ground.501

New investigations into crimes sites were met with additional funding requests to United Nations, state governments and independent organizations, which placed the OTP in a constant process of negotiation and dependency on external actors.502 Between 1997 and 1999 the investigations into the areas of Kratine, Brčko, Bosanski Samac, Zvornik and Srebrenica in Bosnia-Herzegovina were completed with the work of volunteers and monetary donations from western countries, Saudi Arabia and Malaysia.503

In 1997 the majority of the OTP staff were committed to the preparation of trials and a minority were focused on ongoing investigations. They consequently discontinued some of the previous enquiries and the activities were resumed after the increase of UN funding for the subsequent year.504 After the SC approved resolution 1160 requesting the OTP to gather information for the Kosovo events, the OTP was rushed into the redeployment of many investigators from their regular work in Bosnia into Kosovo.505

170–74. John Hagan and Ron Levi, “Social Skill, the Milosevic Indictment, and the Rebirth of International Criminal Justice,” European Journal of Criminology 1, no. 4 (October 1, 2004): 466. 501 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991.” United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991.” 502 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 125. 503 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” paras. 119–20. United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” para. 129. 504 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” para. 117. 505 Ibid., para. 118. United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in 126

3.3.3 Formal considerations: Substantive goals

Like her predecessor, Arbour did not publish any policy documents during her tenure. The reason was that she conceived OTP policies as the result of a day-today contingency, accordingly: “policy issues are seldom debated in the abstract. There is rarely the luxury of setting the agenda, as the day to day life of the Prosecutor often consists almost exclusively in crisis management”506 her perception of the OTP work was to that extent coloured by the assertion and need of independence while sustaining the importance of the role of the OTP as part of the peace efforts in the Balkans.

According to Arbour, the ICTY mandate was ‘open-ended’ to the extent that it was not focused on one particular year,507 which, as conceded by Arbour, made the institution a critical player in the ongoing regional conflict, 508 as this “criminal justice has become a weapon in the arsenal of peace … the Security Council manages threats to international peace and security and now it gave itself a new weapon: criminal justice intervention.”509

Consequently, she correlated indictment policy with the broad spectrum of the tribunal’s external mandate. As Arbour stated, the organizing principle for the OTP and the ICTY in general should be the “link between personal criminal accountability and peace”.510

This carried out two important outcomes; firstly, the indictments were expected to have a function and impact on the peace process of former Yugoslavia, making

the Territory of the Former Yugoslavia since 1991,” para. 126. de Vlaming, ”De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 126. 506 Louise Arbour, “The Crucial Years,” Journal of International Criminal Justice 2 (2004): 402. de Vlaming, ”De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 134– 35. 507 As in the case of the ICTR limited to the events of the year 1994. 508 Louise Arbour, “The Crucial Years” Journal of International Criminal Justice 2 (2004): 397. 509 Mirko Klarin, “IWPR. Balkan Crisis Report. Interview with Louis Arbour,” Institute for War and Peace Reporting, no. 74 (September 10, 1999). 510 Louise Arbour, “War Crimes and the Culture of Peace” (Toronto: University of Toronto Press, Scholarly Publishing Division, 2002), 28.

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as such “a major contribution to a lasting peace, not only in Kosovo, but in the whole region in which we have jurisdiction.”511 And secondly, the OTP work was marked by the need to show and expose not only individual guilt but “to exploit the dramatic stage of the trial to construct the collective memories that may help cleanse both victims and perpetrators”.512

From Arbour’s caseload, especially in her amended (second or third) indictments, it is clear that she continued to follow Goldstone’s investigations and events, but targeting defendants that could allow her to ‘climb up’ and look into command positions. In selecting new defendants, Arbour prioritized the use of resources by holding back against low-level perpetrators and concentrating on “the most serious offenses that could bring us to the highest possible echelons of command. Accordingly, we would select for prosecution events like Srebrenica, where there was massive loss of human life, and the promise of climbing up the chain of command to visit the responsibility of the highest echelons was greatest”.513

This vision was formalized in the approval of the Charging and indictment guidelines, an internal document circulated among OTP staff. It provided instructions for investigations into alleged commission of crimes, the selection of research objects and a framework for legal and procedural issues.514 The Guidelines followed the 1995 criteria set by Goldstone with two additional points. Firstly, in selecting defendants, the guidelines emphasised the focusing on individuals with mid-level and higher authority, or those “whose prosecution provides a foundation for investigations of their superiors”. Secondly, targets whose heinous offences are notorious irrespective of the position they held.515

511 ICTY, “Press Release. JL/PIU/404-E. Statement by Justice Louise Arbour, Prosecutor ICTY.,” May 27, 1999, http://www.icty.org/sid/7764. 512 Arbour, “War Crimes and the Culture of Peace”, 34. 513 Louise Arbour, “Stefan A. Riesenfeld Award Lecture - Crimes against Women under International Law,” Berkeley Journal of International Law 21 (2003): 203. PBS, “Interview Louise Arbour,” PBS, n/d, http://www.pbs.org/wgbh/pages/frontline/shows/karadzic/interviews/arbour.html. 514 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 138. 515 Ibid., 138–40.

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3.3.4 Policy decisions

3.3.4.1 Sealed indictments For Arbour, the most challenging problem for the OTP and the survival of the tribunal was the lack of effective arrests. 516 In her words, “the issue of arrest was so acute that although it ‘belonged’ essentially to the Prosecutor, it had become, inevitably, everybody’s issue: the whole ICTY, the NGO’s and the Press”.517 In addressing the lack of arrests, Arbour argued for the issuing of ‘sealed indictments’ under the exceptional justifications provided by rule 53 RPE. Under this procedure, the names of the suspects remained secret until the persons were apprehended and the responsibility of arrests was referred over to the competent states authorities and international forces.518

Arbour believed that the sealed indictments were the key factor “in convincing those in a position to apprehend suspects to take a more active and positive role”519 and additionally to dissuade the judges who were advocating trials in absentia “I was absolutely determined, arrest was so clearly the key, because I thought if we start getting arrests, then everybody will be busy”.520

Arbour focused on the events surrounding the hospital massacre and burial at the Ovčara farm and on 26 March 1996, using a confidential indictment she charged the mayor of Vukovar, Slavko Dokmanović with war crimes jointly with Mrkšić, Radić and Šljivanćanin.521

516 Arbour, “The Crucial Years,” 397. 517 Ibid. 518 United Nations, “Fourth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” para. 60. 519 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” para. 89. 520 Hagan and Levi, “Crimes of War and the Force of Law,” 1515. 521 ICTY, IT-95-13a. Prosecutor v. Mrkšić, Radić, Šljivačanin & Dokmanović - Initial Indictment (1996). Additionally, United Nations, “Fourth Annual Report of The International 129

In the face of NATO’s inaction, the arrest was delivered by UNTAES. Arbour used the first arrest to pressure NATO and SFOR into supporting the OTP on the ground and to articulate a political gain for the tribunal as the arrest was granted as an achievement by the ICTY.522 By June 1998 more than 30 defendants were in detention.

3.3.4.2 The 1998 review: withdrawal of indictments After December 1997, and using the withdrawal of the indictments against Katava, Skopljak and Šantić as a precedent, Arbour continuously revised all the indictments issued in the previous tenure. Her immediate aim was to make all indictments ‘court ready’.523 In this context, between 5 and 8 May 1998, the prosecutor withdrew charges against eleven accused in the Omarška indictment, and three accused in the Keraterm indictment.524 According with Arbour, this decision was taken to control the potential workload and the problem of having too many additional trials resulting from the same indictment.525

Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” para. 47. 522 Hagan and Levi, “Crimes of War and the Force of Law,” 454–55. In addition, Mary Alice Kovac, “Apprehension of War Crimes Indictees: Should the United Nations’ Courts Outsource Private Actors to Catch Them?,” Catholic University Law Review 51, no. 2 (Spring 2002): 619–54. 523 Gow and Michalski, “Prosecuting with Pictures. Two Decades of Experience and Evolution.,” 37. 524ICTY, “Press Release. CC/PIO/314-E. The Withdrawal of Charges against 14 Accused.,” May 8, 1998. Concerning the Omarška case the changes are visible in the indictments issued in February 1995 and June 1998: ICTY, IT-95-4-I. Prosecutor v. Meakić, Prcač, Gruban, Govedarica, Gruban, Kostić, Paspalj, Pavlić, Popović, Predojević, Savić, Babić, Janjić, Knežević & Š aponja - Initial Indictment (1995). ICTY, IT-95-4-I. Prosecutor v. Meakić, Kvočka, Prcač, Radić, Kos, Gruban, Knežević, Zigić - Indictment (1998). Concerning the Keraterm case the differences are observed in the indictments issued in July 1995 and July 1998. ICTY, IT-95-8-I. Prosecutor v. Sikirica, Došen, Fuštar, Kulundžija, Banović, Banović, Janjić, Knežević, Kondić, Lajić, Šaponja & Timarac - Indictment (1995).ICTY, IT-95-8-PT. Prosecutor v. Sikirica, Došen, Fuštar, Kulundžija, Banović, Banović, Knežević & Žigić - Redacted Indictment (1998). 525 United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” paras. 90–91.

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The public media perception was that the withdrawal was a clear indication that indictments issued in the previous tenure were presented without considerable and reliable evidence.526 Despite the fact that Arbour denied these allegations, it is arguable from the revision of the 1995 indictments and the constant pressure ‘to deliver’ that this was effectively the case. During the three years of Arbour’s post, a total of nineteen accused had their indictments withdrawn, while the OTP simultaneously shifted towards the ‘proper targeting of high-level suspects’.527

3.3.4.3 Indicting Milošević

On May 22, 1999. Arbour signed the indictment against Milošević and four other members of the Serbian leadership, Milan Milutinović, the Serbian President; Dragoljub Ojdanić, the Chief of the general staff of FY; Nikola Šainović, the Prime Minister; and Vlajko Stojiljković, the minister of internal affairs.528

Previously, she had refused to discuss the indictment with heads of states, as they had expressed reservations against pressing charges. The indictment however, came at the best possible moment, because after the NATO intervention, peace wouldn’t be threatened by Milošević being overturned from the Balkan diplomatic scene. 529 As Arbour mentions: I never received instructions from NATO. I never sought instructions from them. I certainly never asked them what do you think about the Milosevic indictment now or tomorrow or in three weeks, would it be good or bad? My guess is that if I had asked they would have told me to do nothing. Mostly because I believe that they don’t

526 ICTY, “Press Release. CC/PIU/315-E. Statement by the Deputy Prosecutor,” May 13, 1998, http://www.icty.org/sid/7670. Kerr, The International Criminal Tribunal for the Former Yugoslavia, 189. 527 Arbour, “The Crucial Years.” 528 Williamson, “Real Justice, in Time,” 90. Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”, 431. ICTY, IT-99-37. Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić & Stojiljkovic - Initial Indictment “Kosovo” (1999). 529 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”, 432.

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like the uncertainty of a process that they cannot control.530

Arbour rushed the Milošević indictment in an “effort to influence on-going peace efforts”,531 arguably, in order to ensure that NATO’s military operation did not interfere with the prosecution of Serbian’s leadership.532 Declaring to the New York Times, she acknowledged, “I was in a hurry … I thought we might miss out as peace was being discussed. I thought he might be able to negotiate a deal for his departure.”533 So charges of genocide were put aside in order to ‘fast-track’ the indictment.534

Following Operation Storm, the OTP was able to capitalize on the coincidence of “politics and law”, receiving privileged information, without any hesitation, from NATO member states, that could link Milošević actions to possible war crimes. Commenting on this sudden willingness from previously reluctant states, her predecessor, Goldstone said ‘‘[o]ne must question whether the information now being offered wasn’t available two, three, or four years ago.”535

3.3.4.4 The offence strategy

At the end of her tenure, Arbour had indicted thirty new defendants. With the exception of the Kosovo indictments, Arbour’s caseload was built up from previous investigation sites but with the novelty of a new “offensive” focus. She had a better standing in terms of financial means and institutional networks and this allowed her to further what she termed a “proper” criminal law

530 “Against All Odds. The First Ten Years of the Tribunal. ” 531 Alexander K. A. Greenawalt, “Milošević and the Justice of Peace,” in The Milošević Trial. An Autopsy, ed. Timothy Waters (Oxford/ New York: Oxford University Press, 2014), 383. 532 Ibid. 533 Marlise Simons, “Proud but Concerned, Tribunal Prosecutor Leaves,” The New York Times, September 15, 1999, http://www.nytimes.com/1999/09/15/world/proud-but-concerned- tribunal-prosecutor-leaves.html?pagewanted=1. 534 Williamson, “Real Justice, in Time,” 89. 535 Raymond Bonner, “Crisis in the Balkans: The Tribunal; Crimes Court Not Ready To Punish Kosovo Violence,” The New York Times, March 31, 1999, sec. World, http://www.nytimes.com/1999/03/31/world/crisis-balkans-tribunal-crimes-court-not-ready- punish-kosovo-violence.html.

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enforcement branch. This objective tailored her indictment policy to be more decisive and to some extent more targeted. As Arbour declares “now we have become real players in the region and, at the end of the day, they (the politicians) had never dealt with criminal justice”.536 For this strategy to be worthy of external support and cooperation, her indictment policy had to be paired with the external aims of the tribunal’s constitution under chapter VII, the so-called maintenance of peace and security in the region. Gow observed that Arbour had “to overcome perceptions in some quarters that the ICTY and especially the OTP, was just one of a swathe of irritant ‘NGOs’ concerned with human rights activism. She applied exemplary personal diplomatic skill to persuade military and political figures alike that the Tribunal and they shared the same international peace and security mission in the former Yugoslavia”.537 Her targeting however, was directly conditioned by the cooperation she was receiving from external governments, including the possibility to secure relevant information that could be used as evidence against “the highest” defendants. However, as Kerr writes, it is important to keep in mind that this provision of evidence “is a way of influencing the policy of the prosecutor, thereby detracting from her independence and impartiality”.538

3.4 Carla Del Ponte (September 1999 – December 2007)

3.4.1 Introduction

Del Ponte took over the OTP in September 1999, just three months after the first Milošević indictment. She had a background as both a public prosecutor and Swiss federal attorney general, which made her accustomed to dealing with complex, high profile criminal cases involving political figures.539

536 “Louise Arbour - Farewell Interview.” 537 Gow and Michalski, “Prosecuting with Pictures. Two Decades of Experience and Evolution.” 37. 538 Kerr, “The International Criminal Tribunal for the Former Yugoslavia”, 197. 539 Heikelina Verrijn Stuart, “Carla Del Ponte,” in Encyclopedia of Human Rights: Vol. 1, ed. David P. Forsythe (Oxford University Press, 2009), 481.

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Her background helped her to lead a major change in the OTP in order to handle multisite crime investigations required to expose “command structure” against high ranking offenders. The main problem for Del Ponte was the way the OTP was run and the capability of its staff. “Only few investigators had education beyond secondary school … few could write effective English or French … Relatively few of the lawyers hired … were capable of overseeing complex investigations or processing mountains of raw information in the local language to distil a prosecutable case … As a result, many staff members were incapable of assessing the relative importance of particular incidents, documents and targets in terms of how they fit into the overall context of the wars … the way in which prosecutions were brought reinforced the perception that the tribunal was a political puppet … making it more difficult to bring the region ‘peace through justice’”.540

Del Ponte boosted the capacity of the OTP in terms of management, hiring analysts and area researchers that eventually allowed her to increase the OTP functionality, this aided in the extension of charges against Milošević, ultimately indicting him for events in Bosnia-Herzegovina and Croatia.541

In her tenure, she faced three issues relevant for her policy, firstly, the conflicts in Bosnia and Herzegovina, Croatia and Bosnia had ceased, which allowed the OTP to overcome the sense of crisis management that both of her predecessors faced. She was able to select offenders using the previous OTP know-how. Secondly, from 2000 onwards, new governments were installed in former Yugoslavia – Vojislav Koštunica in Yugoslavia and Ivica Račan in Croatia. This allowed Del Ponte to be more open to negotiations and to use this new political climate to moderate the exchange of financial aid and EU inclusion for cooperation and compliance with the tribunal. 542

Thirdly, most of the work to establish the “crime base” throughout the territory of former Yugoslavia was completed, allowing Del Ponte to “establish where and when the most serious crimes were committed” and “the universe of high ranked

540 Del Ponte and Sudetic, “Madame Prosecutor”, 128–30. 541 Hagan, “Justice in the Balkans”, 224–27. 542 Rajkovic, “The Politics of International Law and Compliance”, 65–127.

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suspects”. She continued with the task of targeting individuals holding political, military, police and civil leaderships. 543

3.4.2 Contextual factors

3.4.2.1 International actors After the regime changes in Yugoslavia, Del Ponte turned to the United States to put pressure on Serbia and Croatia to deliver arrests and secure further cooperation in the extradition of Milošević. Del Ponte managed to obtain US support to impose conditions to access IMF’s loans to Serbia and withhold their inclusion in NATO’s cooperation programme Partnership for peace.544 She succeeded especially in the US Senate where the amendment of two appropriation laws related to Serbia-US relations allowed the placement of an annual certification process for assessing Yugoslav cooperation with the ICTY.545 However, the EU position towards the Balkan states was very different, after Milošević’s fall. The EU eased their economic sanctions without conditioning former Yugoslavia states to arrest Milošević or other accused nor to transfer them to the tribunal. EU officials openly declared that EU was “not only … lift[ing] some sanctions but also … free[ing] up about $300 million a year in aid during the next seven years.”546 Furthermore, EU’s spokesperson declared bluntly that there was no “contractual conditionality” between aid and cooperation with the tribunal.547

543 United Nations, “Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” August 7, 2000, para. 173–174. 544 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 145. Steven Woehrel, “Conditions on U.S. Aid to Serbia,” January 5, 2006. 545 Ostojic, Between Justice and Stability, 59. Rajkovic, The Politics of International Law and Compliance, 71. Woehrel, “Conditions on U.S. Aid to Serbia.” 546 Steven Erlanger, “European Union Moves to Embrace Yugoslav Leadership,” The New York Times, October 11, 2000, sec. World, http://www.nytimes.com/2000/10/11/world/european-union-moves-to-embrace-yugoslav- leadership.html. Rajkovic, The Politics of International Law and Compliance, 70. Del Ponte and Sudetic, “Madame Prosecutor, ” 91. 547 Stephen Castle, “EU Moves Swiftly to Lift Serbian Sanctions,” The Independent, October 10, 2000, http://www.independent.co.uk/news/world/europe/eu-moves-swiftly-to-lift-serbian- 135

The divergences in treatment of former Balkan states by EU and US reflected the difference of both foreign policy agendas. While United States was focused on defeating ‘rogue states’ through hard diplomatic leadership, the EU had an inclusionary approach directing towards managing the consequences of ‘failed states’ across cooperation and multilateral solutions.548 Del Ponte’s policy was caught in the middle. Facing Yugoslav president Koštunica, who openly rejected the possibility of extraditing Yugoslav citizens including Milošević to the Hague Tribunal, Del Ponte lobbied Western governments intensively to condition economic assistance for cooperation549, as she noted “pressure by certain states was the only way to coax the Federal Republic of Yugoslavia and other successor states of the former Yugoslavia to cooperate with the tribunal. How else was I going to achieve the tribunal’s aims if I were to refrain from calling upon relevant governments to apply financial and diplomatic pressure?”550

In a step forward, Del Ponte addressed the Security Council “Milosevic must be brought to trial before the International Tribunal. There simply is no alternative. After all the effort the international community has invested in the Balkans to restore peace to the region … Whatever President Kostunica may say, the surrender of Milosevic is a priority … and it should, in my submission, also be a priority for the Security Council of the United Nations, which created the ICTY as a sub organ of the Council, under Chapter VII of the UN Charter, not as a quick fix to a political crisis, but as a serious and lasting contribution to creating a meaningful and durable peace in the Balkans.”551 But Del Ponte’s pleads were countered by the unsupportive actions by some members of the SC. On May 10, 2001 she met former UN Secretary General Kofi Annan. “He was still displeased with my efforts to urge the United States and especially, France, Germany and … European Union countries to link their

sanctions-635133.html. Also quoted in Rajkovic, “The Politics of International Law and Compliance,” 70. 548 Ivo H. Daalder, “Are the United States and Europe Heading for Divorce?,” International Affairs 77, no. 3 (July 1, 2001): 557–562. 549 Ostojic, “Between Justice and Stability, ” 58. 550 Del Ponte and Sudetic, “Madame Prosecutor, ” 114–15. 551 ICTY, “Press Release. JL/P.I.S./542-E. Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security Council.,” November 24, 2000, http://www.icty.org/sid/7803.

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financial assistance to Yugoslavia with Belgrade’s cooperation with the tribunal … he said that he did not consider it to be within the chief prosecutor’s remit to enter into questions of economic assistance to Yugoslavia”. 552 Del Ponte also recalled Annan asserting “you cannot tell the member states that they should suspend cooperation with Yugoslavia. This kind of conditionality is political. It’s politics”.553 Milošević’s arrest in April 2001 was met with contradictory policies towards the OTP by different states, which included the public position of some EU Member States to grant him immunity554 and the approval of the so-called completion strategy, which reduced OTP resources while simultaneously demanding results. “We cannot be asked to complete soon our indictments and trials of top leaders and, at the same time, be told to be patient and not to rock the boat. This is an obvious contradiction”.555 For the rest of her tenure, Del Ponte continued to add financial pressure and use the much desired EU association status to negotiate cooperation and compliance of Balkan states. 556 “I attached a great deal of importance to our relations with the EU, because of its role in the former Yugoslavia and the impact of EU policy on our work” and “The conditionality to start negotiations on EU membership has been the most effective tool vis-à-vis states failing to cooperate. 90 per cent of all accused currently on trial or awaiting their trial are in The Hague as a direct result of EU conditionality”.557

552 Del Ponte and Sudetic, “Madame Prosecutor”, 114. 553 Ibid. See on the Partnership for peace EUCOM, “Partnership for Peace,” http://www.eucom.mil/key-activities/partnership-programs/partnership-for-peace. 554 Ian Black, “West Split on New Push to Get Milosevic,” The Guardian, October 9, 2000, sec. World news, http://www.theguardian.com/world/2000/oct/09/balkans2. 555 ICTY, “Press Release. JJJ/P.I.S./709-E. Address by the Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” October 30, 2002. 556 Klaus Bachmann, Thomas Sparrow-Botero, and Peter Lambertz, “When Justice Meets Politics: Independence and Autonomy of Ad Hoc International Criminal Tribunals”, 1 edition (Frankfurt am Main: Peter Lang GmbH, Internationaler Verlag der Wissenschaften, 2013), 56– 61. 557 Carla Del Ponte, “Reflections Based on the ICTY’s Experience,” in “International Criminal Justice: Law and Practice from the Rome Statute to Its Review,” ed. Roberto Bellelli (Routledge, 2010), 129. The foreign policy of the European Union [comprising enlargement] is multifaceted. Sensu stricto it is composed by the Common Foreign and Security Policy (CFSP), which includes a political and diplomatic dimension represented by the European External Action Service (EEAS); and the Common Security and Defence Policy (CSDP), which incorporates various civilian and military crisis management instruments. Sensu lato, it also 137

However, her struggle with contradictory policies from the US and EU met two additional obstructions: the lack of logistical support (reflected in the problems to arrest Karadžić and Mladić) and the problem of cooperation for securing intelligence information to substantiate indictments. Del Ponte recalled an incident in the summer of 2001 when meeting George Tenet, at that time head of the CIA, in order to discuss a joint strategy to arrest Karadžić and Mladić. After Del Ponte enquired about the specific ways in which the CIA was collaborating with the tribunal, she presented her ideas to elaborate a common plan for the arrests; subsequently Tenet replied “Look Madame, I don’t give a shit what you think”.558

3.4.2.2 Regional actors (1) Serbia

The overthrow of Milošević did not meet the expectation of improving relationships with the OTP. His arrest was based on domestic charges of corruption and abuse of power.559And his subsequent extradition was not the result of an internationalization of the value of the ICTY or the international rule of law but was due to a complex combination of domestic political manoeuvers, economic pressure and the conditionality upon EU accession.560 This highlights the importance of “external” frameworks of cooperation and the role of OTP’s conditionality upon them. The extradition of Milošević occurred one day before the international donor conference was scheduled on 29 June 2001, in Brussels

comprises the EU “external action”, trade policy, development cooperation, economic and financial cooperation, humanitarian aid, sanctions and international agreements and the EU “external dimension of external policies” including energy, environmental and migration, asylum policy. Stephan Keukeleire and Tom Delreux, “The Foreign Policy of the European Union” (Palgrave Macmillan, 2014), 11–13. Generally, Charlotte Bretherton and John Vogler, “The European Union as a Global Actor” (Psychology Press, 1999). 558 Verrijn Stuart, “Carla Del Ponte,” 482. Carla Del Ponte and Chuck Sudetic, “La caccia. Io e i criminali di guerra” (Milano: Feltrinelli, 2008), 20. Gow and Michalski, “Prosecuting with Pictures. Two Decades of Experience and Evolution.” 39. 559 Rajkovic, “The Politics of International Law and Compliance, ” 73. 560 Kerr, “The International Criminal Tribunal for the Former Yugoslavia,” 125. Bachmann, Sparrow-Botero, and Lambertz, “When Justice Meets Politics, ” 54–61. Ostojic, “Between Justice and Stability, ” 60–63.

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where Serbia was pledged US$ 1.28 billion due to its compliance in the ‘delivery’ of Milošević.561

During 2002, in exchange for financial retributions worth $115 million, Serbia extradited another 24 indictee suspects. Simultaneously, Del Ponte was continuously denied access to archives and documents required to corroborate investigations, and some of them were purposely destroyed. “This kind of blatant defiance of international obligations would be almost comical. It cannot be allowed to continue”.562 From 2003, the government adopted a measure that allowed the provision of financial support to those indictees who surrendered to the authorities, including legal counselling. This “policy of voluntary surrender” was portrayed as a patriotic gesture “towards releasing the country from the tribunal’s yoke and enabling Serbia to progress towards EU” for which indictees received great public recognition.563 The cooperation with Serbia was improved in spring 2003 after the Government coalition (DOS) crackdown564 and this new context brought Del Ponte to give more leverage to Serbia. Acting on Belgrade’s request, the prosecutor sped up the indictments against Jovica Stanišić and Frenki Simatović, as it was important for the new government to remove them from the political scene. 565 From January 2004 and until the end of 2006, the return of Vojislav Koštunica to office made things more difficult. Cooperation deteriorated to the extent that Del Ponte named

561 Robert Bideleux and Ian Jeffries, “The Balkans: A Post-Communist History” (Routledge, 2007), 287. In addition, European Integration Office. Republic of Serbia, “Ten Years of Development Assistance to the Republic of Serbia,” 2011, http://www.evropa.gov.rs/Evropa/ShowDocument.aspx?Type=Home&Id=843. Curt Tarnoff, “The Federal Republic of Yugoslavia: U.S. Economic Assistance,” in The Balkans, ed. Clem S. Watkins (New York, NY: Nova Publishers, 2003), 69–74. 562 ICTY, “Press Release. JJJ/P.I.S./709-E. Address by the Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” 563 Ostojic, “Between Justice and Stability”, 90. 564 Specifically, after the assassination of Zoran Đinđić, the prime minister of Serbia, and the arrest of 3,000 alleged members of the Serbian mafia. 565 Del Ponte and Sudetic, “Madame Prosecutor”, 195–197. International Crisis Group, “Serbian Reform Stalls Again” (Belgrade/Brussels, July 17, 2003), 4, http://reliefweb.int/sites/reliefweb.int/files/resources/C1316824E786DC9585256D66006BFB DE-icg-yug-17jul.pdf. Peskin, ”International Justice in Rwanda and the Balkans”, 80–81. ICTY, IT-03-69. Prosecutor v. Stanišić & Simatović - Initial Indictment (2003).

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Serbia’s surrender policy a “blatant contradiction with the international obligation of the country”.566 Financial aid and EU integration proved to be the most influential factors for continuing relations with the ICTY. During the last year of Del Ponte’s tenure, Serbia had no incentive to cooperate with the OTP, as the EU lifted its conditionality for accession in view of the election results of the Serbian radical party in January 2007, and the possible alliance with Russia.567 The EU not only resumed negotiations with Serbia without requesting the arrest of Mladić or Karadžić, but it granted Serbia the rotating chair at the Committee of Ministers in the Council of Europe. Del Ponte lowered her tone and became conciliatory with the new political constellation. Only four months after declaring “this is extremely damaging for me because I know Belgrade and I know the authorities there … If they resume negotiations without full cooperation with us [...] I think we can forget those two fugitives, particularly Mladic”568, she affirmed “my assessment will be positive and I can justify my positive assessment and I would say, particularly now, I would be grateful if the negotiations [with EU] can start as soon as possible”.569 Reflecting on this, Del Ponte wrote in her memoires “I could almost hear the laughter coming from Serbia that might, even after all the lies of its leaders, even after troops acting in its name left the thousands of rotten corpses in Srebrenica, be welcomed into the European Union, ….”.570

(2) Croatia

The new President Stipe Mesić was more cooperative with Del Ponte than his predecessor Tuđman. He allowed the OTP access to the secret archives of the Bosnia Croatian Army (HVO), providing insights into the command structure of

566 ICTY, “Press Release. CDP/P.I.S./917-E. Address by Carla Del Ponte, Prosecutor of the ICTY, to the UN Security Council,” November 23, 2004. 567 Peskin, “International Justice in Rwanda and the Balkans”, 88. 568 Alexandra Hudson, “Del Ponte Fears EU Weakening on Serbia Arrests,” Reuters UK, January 30, 2007, http://uk.reuters.com/article/2007/01/30/us-serbia-delponte- idUKL3047795620070130. 569 “Del Ponte Urges EU-Serbia Talks,” BBC, June 6, 2007, sec. Europe, http://news.bbc.co.uk/2/hi/europe/6728787.stm. 570 Del Ponte and Sudetic, “Madame Prosecutor”, 368.

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the Croatian army and their influence with the Bosnian Croats.571 In a meeting with the new government officials in April 2000, Del Ponte spoke with Prime Minister Ivica Račan. “To help him understand that the tribunal was not biased, I told him that we have reorganized our investigation teams to put more focus on crimes committed against mostly Croats in the towns of Vukovar and Dubrovnik. I then requested information on Tuđman’s bank accounts.”572 The cooperation, however, was more complicated in relation to the indictments of Ante Gotovina and Janko Bobetko, two “homeland war heroes”573 whose prosecutions were domestically portrayed as illegal. “The [Bobetko] indictment contravenes the constitution of the Republic of Croatia because the indictment prosecutes the entire legal action of liberating occupied Croatian territory”.574 This position contrasted with Croatia’s relative willingness to cooperate with investigations of Bosnian Croats suspects. 575 Del Ponte framed the collaboration with the OTP and the handing over of indictees in terms of conditionality for EU accession and [similarly to the case of Serbia], in connection with financial benefits. 576 However, as discussed by Bachmann, the struggle over cooperation became personalized and Del Ponte’s discourse narrowed almost exclusively to ensuring that the remaining indictees (such as Gotovina) were located and transferred to the ICTY.577 But the personification of cooperation forced Del Ponte to rephrase her indictments in order to allow the arrest and the transfer of Croatia’s war heroes.

571 Ibid., 245–49. de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 150.United Nations, “Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” paras. 162, 163, 164. 572 Del Ponte and Sudetic, “Madame Prosecutor”, 250. 573 Carol Off, “The Ghosts of Medak Pocket: The Story of Canada’s Secret War” (Stornoway, Isle of Lewis: Vintage Canada, 2005), 279–87. Marcus Tanner, ”Croatia: A Nation Forged in War”, Third Edition, 3rd edition (New Haven: Yale University Press, 2010), 221–240. Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011,” 437–38. 574 Statement of Deputy Prime Minister Goran Granić quoted in Rajkovic, “The Politics of International Law and Compliance, ” 108. 575 Peskin, “International Justice in Rwanda and the Balkans,”105. 576 Frank Schimmelfenning, “EU Political Accession Conditionality after the 2004 Enlargement: Consistency and Effectiveness,” Journal of European Public Policy 15, no. 6 (2008): 928–29. 577 Bachmann, Sparrow-Botero, and Lambertz, “When Justice Meets Politics”, 67.

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The indictments ignited protests from wide sectors of Croatia’s society as during the war the nationalist ideology was “Croatia was the victim and its generals and soldiers were heroes. That is the only truth,” 578 forcing Račan to retreat from his previous commitment with the ICTY while claiming that “The indictment is indirectly accusing Croatia for crimes against humanity, ignoring its legitimate right to self-defense and thus equalizing the aggressor and the victim” 579 and that the “political context of the indictment was unacceptable.” 580 In July 2001, Ademi turned himself in to the tribunal’s authorities but Račan’s government did not seek Gotovina’s arrest and for Croatian’s nationalists “Gotovina’s case became a cause célèbre”.581 In order to increase the chances of Gotovina’s arrest or surrender, Del Ponte amended the 2001 indictment in a more ‘favourable’ manner, dropping one of the five counts of crimes against humanity and minimizing the estimated number of Serbs driven out of Croatia as this had been “a source of bitter contention in Zagreb ever since former Prime Minister Račan demanded changes in the document in July 2001” 582 while the 2001 indictment projected that the Croatian forces caused “the large-scale displacement of an estimated 150 000 to 200 000 Krajina Serbs” 583 the 2004 amended indictment reduced the mass exodus of Serbs to “tens of thousands”.584 In addition, the Gotovina case played a role within Croatia’s political bid for accessing the European Union (EU). Without Gotovina’s surrender, Britain would continue its refusal to support the stabilization and association agreement with Zagreb. In April 2004, Britain’s Minister for Europe, Denis MacShane declared

578 The Centre for Peace in the Balkans, “Croatian Party Slams UN War Crimes Tribunal over Indictments,” The Centre for Peace in the Balkans, July 27, 2001, http://www.balkanpeace.org/index.php?index=article&articleid=10047.(Accessed August 15, 2015) 579 The Centre for Peace in the Balkans, “Croatian Party Slams UN War Crimes Tribunal over Indictments.” 580 Ibid. 581 Peskin, “International Justice in Rwanda and the Balkans”, 131. 582 Ibid., 143. 583 ICTY, IT-01-45-I. Prosecutor v. Gotovina - Indictment (2001). 584 ICTY, IT-01-45. Prosecutor v. Gotovina - Amended Indictment (2004).

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“We consider it improper that people in Croatia cannot locate Gotovina … the case of Ante Gotovina is of utmost importance for Croatia’s accession.”585 In June 2004, Del Ponte gave Zagreb a positive account on cooperation in order to instigate new Croatian Prime Minister, Ivo Sanader to arrest Gotovina. “In a report to the European Commission, I congratulate the Croatian government for demonstrating its cooperation with the tribunal, and this remove an obstacle that help enable the commission to conclude, on April 20, that Croatia had fulfilled the political and economic criteria required for initiating negotiations on accession to the European Union”. 586 When this did not work, Del Ponte went public on Croatia’s inaction. “It is of paramount importance for the completion strategy and for the overall achievements of the ICTY that Gotovina be brought to justice in The Hague. This is the only remaining obstacle to the co-operation of Croatia with the ICTY. As soon as Gotovina will be in The Hague, it will be possible to say that, indeed, Croatia is co-operating fully with the Tribunal …. Should international pressure recede in this case, this will be perceived as a signal that the international community may not be interested anymore in having the most senior leaders responsible for the most serious crimes … appearing in front of the ICTY.”587

In mid-March 2005, the EU made Croatia’s negotiations to enter the Union dependent on Gotovina’s arrest and demanded full cooperation with the ICTY. A few months later, in December 2005, Gotovina was arrested in Spain.588 Croatian contestation and struggle with the OTP in being less frontal affected Del Pontes’ policy in the long run – “it took most of a decade, two cancer deaths, and a political upheaval in the Republic of Croatia before the Office of the Prosecutor’s analytical staff was able to gather sufficient documentation to report to me in detail”.589

585 Peskin, “International Justice in Rwanda and the Balkans”, 144. 586 Del Ponte and Sudetic, “Madame Prosecutor”, 258. 587 ICTY, “Press Release. CDP/P.I.S./917-E. Address by Carla Del Ponte, Prosecutor of the ICTY, to the UN Security Council.” 588 Peskin, “International Justice in Rwanda and the Balkans”, 144–47. 589 Del Ponte and Sudetic, “Madame Prosecutor”, 242–43.

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In commenting on the difference between Serbs and Croats in handling the OTP, Del Ponte used an aphorism “the Serbs are bastards … but the Croats are sneaky bastards”.590

(3) Kosovo

The OTP received numerous reports indicating that between 1998 and 1999, KLA had abducted hundreds of Serbs, Roma, Albanians and other ethnic nationalities for execution, torture, and enforced disappearance. Between 1999 and 2000 Del Ponte confirmed the disappearance of another 1,800 Albanians taken into custody by the KLA.591 Investigations into these crimes were the most difficult for Del Ponte, who encountered a lack of governmental institutions, security threats against possible witness and more importantly the reluctance of US and other NATO countries to provide information concerning KLA’s structure.592 In 2002, documents from KFOR’s first contingents and intelligence information were stored at NATO headquarters in Brussels, which made the access to data dependent upon NATO’s considerations. Furthermore, United Nations interim administration in Kosovo (UNMIK) was on many occasions unwilling to comply with Del Ponte on three fronts: OTP’s requests for the execution of arrest warrants (especially during the indictment against Limaj),593 the provision of documentary evidence, and guaranteeing the protection of witnesses. 594 The election in December 2003 of Ramush Haradinaj as Prime Minister strengthened his international support in the face of Del Ponte’s decision to indict him. She notes: “Even a month before the office of the prosecutor submitted the

590 Ibid., 242. 591 Ibid., 276–77. Human Rights Watch, “Kosovo/Albania: Investigate Postwar Abductions, Transfers to Albania,” Human Rights Watch, May 4, 2008, https://www.hrw.org/news/2008/05/04/kosovo/albania-investigate-postwar-abductions- transfers-albania. Additionally, International Crisis Group, “What Happened to the KLA?” (Pristina/Washington/Brussels: International Crisis Group, March 3, 2000). 592 Del Ponte and Sudetic, “Madame Prosecutor”, chap. 11. 593 Christopher K. Lamont, “International Criminal Justice and the Politics of Compliance” (Ashgate Publishing, Ltd., 2013), 150–151. See additionally, ICTY, IT-03-66-I. Prosecutor v. Limaj, Bala, Musliu & Murtezi - Indictment (2003). 594 Del Ponte and Sudetic, “Madame Prosecutor”, 299.

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indictment, senior diplomats from United Kingdom informed my advisers that London would not support the tribunal unless the indictment was robust”595 and US representative Eliot Engel of the House Subcommittee of Europe stated that Haradinaj’s indictment was “no proof of guilt”.596 The head of UNMIK, Søren Jessen-Petersen stated one day after Haradinaj’s indictment that “the decision announced by Mr. Haradinaj to co-operate with the tribunal despite his firm conviction of innocence, and although painful for him, his family, Kosovo, and his many friends and partners, including UNMIK, is at the same time an example of Kosovo’s’ growing political maturity as a responsible member of the international community.”597 After the indictment Haradinaj took active part in Kosovo’s political life, likewise meeting with high- level officials from KFOR and UNMIK and he was present at official ceremonies with British and American diplomats.598 EU Member States never took action to sanction the obstruction of UNMIK or KFOR.

3.4.2.3 Completion strategy The first formal discussion to complete the ICTY’s work was introduced in the year 2000 by the tribunal’s president Claude Jorda, who filed a report on the court operation advocating for a “streamlining pre-trial case preparation and the creation of a pool of ad litem judges to address the increasing caseload of the Tribunal.”599 The Security Council approved president Jorda’s proposal without even consulting with Del Ponte. When she finally had the chance to address the issue, she was reluctant to do the job properly with what she termed a “low cost

595 Ibid., 291–92. 596 Quoted in Lamont, “International Criminal Justice and the Politics of Compliance”, 152. See additionally, ICTY, IT-04-84-I. Prosecutor v. Haradinaj, Balaj & Brahimaj - Indictment (2005). 597 Del Ponte and Sudetic, “Madame Prosecutor”, 295. The reactions of the ICG were in a similar vein, International Crisis Group, “Kosovo After Haradinaj” (International Crisis Group, May 26, 2005). 598 Del Ponte and Sudetic, “Madame Prosecutor”, 300–301. 599 Dominic Raab, “Evaluating the ICTY and Its Completion Strategy Efforts to Achieve Accountability for War Crimes and Their Tribunals,” Journal of International Criminal Justice 3, no. 1 (March 1, 2005): 84.

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solution”.600 In October 2002, Del Ponte asserted that the problems of cooperation and compliance had a negative effect on the functioning of her office and for this reason the OTP could not “control the pace of [its] activities”.601 As she recognized in an interview “already in 2002, during our informal meetings with the Security Council, we would be asked how much longer our activity was going to last. So we began to feel the pressure and it reached the peak in 2003”.602 Internally, OTP officials manifested the discomfort with Jorda’s proposal and the 2008 end date for completion “I don’t believe that the 2008 deadline for the completion of trials is realistic. It was a date frankly that President Jorda plucked out of the air as far as I can see. We institutionally never really endorse it … there was no basis for the agreement in any realistic analysis of the work that had to be done”.603 In 2003, the Security Council approved resolution 1503 calling on the ICTY to “complete investigations by the end of 2004, all trial activities at first instance by the end of 2008, and all of its work in 2010”. Del Ponte addressed the Security Council on 10 October 2003, envisioning the issuing of new indictments of approximately 30 individuals and recommending a review of the indictments in 2005 “to determine which cases would need to be tried in The Hague and which could be transferred back to domestic jurisdictions … the October report suggested that the ICTY Completion strategy was approximately three to six years behind schedule.”604 In March 2004, the Security Council enacted resolution 1534 which not only ratified the completion schedule provided by resolution 1503 but additionally called on the tribunal “in reviewing and confirming any new indictments” and “on the ICTY … Prosecutor … to review the case load … in particular with a view to

600 Kevin J. Heller, “Completion,” in International Prosecutors, ed. Luc Reydams (Oxford: Oxford University Press, 2012), 907. 601 ICTY, “Press Release. JJJ/P.I.S./709-E. Address by the Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” 602 “Against All Odds. The First Ten Years of the Tribunal.” 603 Hagan, Levi, and Ferrales, “Swaying the Hand of Justice,” 606. 604 Dominic Raab, “Evaluating the ICTY and Its Completion Strategy Efforts to Achieve Accountability for War Crimes and Their Tribunals,” Journal of International Criminal Justice 3, no. 1 (March 1, 2005): 82–102. See also, United Nations. Security Council, UN Security Council Resolution 1503, 2003, http://www.unmict.org/ictr-remembers/docs/res1503- 2003_en.pdf.

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determining which cases should be proceed with and which should be transferred to competent jurisdictions.”605 Del Ponte reduced her planned new indictees’ list from thirty to four individuals and explained together with new ICTY president Theodor Meron that the completion strategy was unattainable, especially in view of the critical financial situation arising from several UN member states who didn’t contribute (as promised) to the ICTY budget. “It arguably reflected a broader and growing disenchantment amongst many UN Members with the ICTY. It was increasingly questioned, particularly in the UN General Assembly’s Fifth Committee, whether the ICTY was providing value for money.”606 Del Ponte’s inability to contest the completion strategy resulted from the fact that the CS itself was a complex combination of Security Council resolutions, annual report projections, internal policy initiatives, RPE modifications and informal dialogues among countless political actors associated with each of these bodies.607

The immediate effect of the completion strategy was the overflow of the OTP’s capacity. Del Ponte had no resources to hire qualified replacements for those who left the OTP due to the foreseeable termination of the Tribunal’s activities, and furthermore the OTP was relying on a “base” pyramidal structure initiated by Goldstone that forced Del Ponte to reduce the workload [and the issuing of new indictments] as the most complex cases that focused on higher ranked officials were expected to be handled at the end of the tribunals’ lifespan.608

3.4.2.4 Insufficient funds

From 1999, the tribunal increased the use of voluntary contributions to carry out essential tasks. The reason for this was the focus on the Kosovo investigations that were undertaken in “real time” which considerable increased the expenses. During the first year of Del Ponte’s tenure, the resources were exhausted in

605 United Nations. Security Council, UN Security Council Resolution 1534, 2004, http://www.icty.org/x/file/Legal%20Library/Statute/statute_1534_2004_en.pdf. 606 Raab, “Evaluating the ICTY and Its Completion Strategy Efforts to Achieve Accountability for War Crimes and Their Tribunals,” March 1, 2005. 607 Laura Bingham, “Strategy or Process? Closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” Berkeley Journal of International Law 24, no. 2 (2006): 688.

608 Heller, “Completion,” 904.

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Kosovo609 and private and voluntary funding was utilized for activities related to the logistical support of the OTP and on-site investigative activities that amounted only in the year 2000 to over $30 million.610

The overall budget of the tribunal increased from $65 million in 1999 to $100 million during the year 2000 and from $109 million in 2001 to $135 million in 2002, remaining steady for the rest of Del Ponte’s tenure.611 However, after the completion strategy was approved and ratified by the Security Council, senior staff who occupied critical posts at the ICTY were forced to leave the tribunal given the lack of long-term career opportunities. This shortage of staff was aggravated by the delays of payment contributions by SC member states, which led the UN secretariat to impose a recruitment freeze on the tribunal in May 2004.612 “Our work is now imperilled, I appeal to the Council, as the policy making organ … [to] take whatever measures are necessary for us to continue our work … I have personally approached governments urging them to make payment …”. 613

By November 2004, the situation was disrupting OTP’s functions especially with regard to the investigation division, whose budget for the year 2005 remained

609 United Nations, “Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” paras. 176–177. 610 United Nations, “Financing 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,” November 1, 1999, para. 33,34,35 and annex VI. Donations from 25 May 1993 to 31 December 1999 totalled an additional 29 US$ million. United Nations, “A/56/501 - Financial Performance of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991 for the Period from 1 January to 31 December 2000,” October 24, 2001, 11. 611 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 144. United Nations, “A/54/518 - Financing 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.”United Nations, “A/55/691 - Financing 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,” December 14, 2000. 612 ICTY, “Press Release. JL/P.I.S./862e. Address of Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia to the United Nations Security Council,” June 29, 2004. 613 Ibid.

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without approval. The OTP lost 40 per cent of senior investigators and 50 per cent of its senior legal staff and the recruitment interruption obliged Del Ponte to promote internally to senior levels, compromising professional standards.614

In addition, the completion strategy was also used by pro-Serb nations like Russia to pressure Del Ponte and threaten to cut off funding at the UN if the work was not completed during the grace period envisioned in the Completion Strategy. A representative of the Russian Federation noted that “The fact that Ratko Mladic, Radovan Karadzic and other accused are not in the hands of the ICTY cannot be considered an excuse for an unlimited extension of this organ’s operations”.615 During the last two years of her tenure, Del Ponte struggled to achieve the aim of its mandate with the uncertainty to know whether the tribunal would be allowed to complete all of the trials.616

The lack of resources exemplified two things for Del Ponte, firstly that “the extent of achievements of the international institution as is the Tribunal is directly proportional to the extent of support given to it”617 and secondly, the continuous need to “actively seek private, including corporate, funding for their activities”.618

3.4.3 Formal considerations

3.4.3.1 Substantive goals

Del Ponte did not make public any formal criteria for her prosecution policy. She sketched her aims broadly during her mandate in press releases, statements and in one publication in 2004.619 In addition, in 2006 she discussed her approach

614 ICTY, “Press Release. CDP/P.I.S./917-E. Address by Carla Del Ponte, Prosecutor of the ICTY, to the UN Security Council.” 615 Katherine Boyle, “Global Policy Forum,” Uncertain Future for War Crimes Tribunals, November 3, 2006, https://www.globalpolicy.org/component/content/article/163/28323.html. 616 Carla Del Ponte, “Building a Culture of Accountability. Action against Impunity in the External Relations of the European Union” (Helsinki, September 29, 2006). 617 Ibid. 618 Baars, “Making ICL History. On the Need to Move beyond Pre-Fab Critiques of ICL,” 196– 218. 619 Angela M. Banks, “Carla Del Ponte: Her Retrospective of Four Years in The Hague,” Faculty Publications, no. 130 (2004): 37–42. Carla Del Ponte, “Prosecuting the Individuals 149

towards the selection of suspects and the prosecution of large-scale crimes at more length.620 During the first year of her tenure, Del Ponte stated that she found some investigation teams at the OTP targeting the “wrong suspects” and therefore wasting time and money against low-ranking individuals instead of working towards “indictments against the persons that the Security Council had intended the tribunal to pursue: those persons most responsible for the crimes who have inhabited the higher political, military, and security echelons during the years Yugoslavia was at war.”621 Accordingly, these flaws were made visible in the poor quality of indictments. In order to change this, the prosecutor consulted with three sources, trial attorneys, her political advisor Jean-Jaques Joris, seconded to the ICTY by the Swiss foreign ministry, and with her spokesperson, Florence Hartmann, a former Belgrade correspondent for Le Monde. 622 This is indicative to the extent Del Ponte was also relying in political and media advisers to decide what should be done internally and that on some occasions these other considerations overweighed the concerns of legal advisors:

There have been examples of individuals within the Office of the Prosecutor resisting the preparation of indictments on grounds of insufficiency of evidence. Their expressions of concerns were never welcomed in recent years if contrary to some existing policy or decision. Peer review for these decisions even for the controversial ones - was never sought.623

Bearing the Highest Level of Responsibility,” Journal of International Criminal Justice 2 (2004): 516. 620 Carla Del Ponte, “Investigation and Prosecution of Large-Scale Crimes at the International Level The Experience of the ICTY,” Journal of International Criminal Justice 4, no. 3 (July 1, 2006): 539–58. 621 Del Ponte and Sudetic, “Madame Prosecutor”, 122–23. 622 Ibid. Further, Florence Hartmann, “Paix et châtiment. Les Guerres Secrètes de la Politique et de la Justice Internationales” (Paris: Flammarion, 2007), chap. 1 and 3. 623 Former ICTY Trial attorney in the Milošević case. Geoffrey Nice, “Panel: Legacy of Milosevic Trial” (Helsinki Committee for Human Rights in Serbia, Belgrade, March 31, 2007).

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Del Ponte was very vocal on the correlation between criminal prosecutions and the fulfilment of the external mandates of the ICTY vis-à-vis United Nations. 624 She exemplified this in stating that the achievements of justice, peace and reconciliation were feasible through criminal accountability. In Del Ponte’s view, “well-administered justice does contribute even more than religion to long-term peace of mind for the victims and their families, which is a necessary prerequisite for reconciliation.” 625 The connection between the external ICTY mandate and individual criminal accountability was tangible in the un-disputability of facts and truths about individual guilt:

The Tribunal was established as a measure to restore and maintain peace and promote reconciliation in the former Yugoslavia. Peace has been established. However, its maintenance depends on many factors. True peace will only be maintained if the need for justice is satisfied, if facts about the war are undisputed and if reconciliation is achieved. The Tribunal is one element of this process …The Tribunal’s primary contribution to peace and security, to regional stability and reconciliation is in establishing the facts and individual criminal responsibility.626

In this regard, a further aim of Del Ponte was the targeting of “all the parties” in the conflict as this demonstrates impartiality and could further allow for the establishment of that “undisputable” truth that would achieve reconciliation “my

624 de Vlaming, “De aanklager: het Joegoslavië-tribunaal en de selectie van verdachten”, 152– 53. Additionally, Janine Natalya Clark, “International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia,” 1 edition (Milton Park, Abingdon, Oxon ; New York, NY: Routledge, 2014), 37–38. 625 Carla Del Ponte, “European Values and National Interests in the Enlarging Europe” (Tallin, October 30, 2006). 626 ICTY, “Press Release. CdP/OTP/ PR1193e. Address by Tribunal Prosecutor Carla Del Ponte to NATO Parliamentary Assembly in Belgrade: The ICTY and the Legacy of the Past,” October 26, 2007, http://www.icty.org/sid/8829.

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remaining investigations cover the region and concern all main parties to the conflict. By completing these investigations, ICTY will have proven that it worked impartially towards achieving justice, peace and reconciliation in the former Yugoslavia”.627

3.4.3.2 Policy criteria During her tenure, the prosecutor described three broad considerations for targeting defendants: firstly, she aimed “at those persons at the highest levels of responsibility, the highest military, political and police leaders” who allowed or did not intervene to stop the crimes.628 Secondly, she took into account representatively that “the primary focus of the OTP must be the investigation and prosecution of the five leaders of the Federal Republic of Yugoslavia and the Republic of Serbia, who have already been indicted, and who are alleged to be responsible for the crimes described in the indictment” and thirdly, she sought to include those individuals who committed “particularly serious crimes during the course of the armed conflict”, including the perpetration of sexual violence.629 Her description of the notion of seriousness for this purpose was also related with the positionality of the individual against the external aims of the ICTY “One should not fall into the trap of polarizing accused into big fish and small fish. A number of the accused under investigation in the ICTY … had strong links to the central power base and were fully aware of the overall criminal enterprise, in the former Yugoslavia some of these individuals still occupy official functions and their activities are an obstacle to the peace process.”630 Accordingly, indictments against individuals who were not in the highest chains of command were justified because “Unless these local leaders are brought to justice … the ordinary

627 ICTY, “Press Release.FH/P.I.S./791-E. Address by Ms. Carla Del Ponte, Chief Prosecutor of the ICTY, to the UN Security Council,” October 10, 2003, http://www.icty.org/sid/8180. 628 ICTY, “Press Statement. PR/P.I.S./488-E Made by the Prosecutor Carla Del Ponte in Zagreb on Wednesday 5 April 2000,” April 6, 2000, http://www.icty.org/sid/7876. 629 ICTY, “Press Release. PRP.I.S./457-E. Statement by Madame Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia.,” December 22, 1999, http://www.icty.org/sid/7709. 630 ICTY, “Press Release. GR/P.I.S./642-E. Address by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Carla Del Ponte, to the UN Security Council.,” November 27, 2001, http://www.icty.org/sid/7926.

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population will not come to terms with the past, and the process of reconciliation and building a stable peace will suffer accordingly.”631 A year before leaving her post and in reference to issuing indictments she indicated that technical limitations for the number of indictments and accused tried included the limited capacity of the OTP to process the cases and the enactment of the completion strategy in 2003.632 Furthermore, the prosecutor argued three criteria for the selection of defendants: 1) seriousness of the crime in terms of severity, magnitude, nature and impact 2) leadership and position in the military and political structure and 3) the responsibility quotient among the senior leaders, manner of participation and contribution.633

3.4.4 Policy decisions

Del Ponte issue indictments against a total of 57 defendants. In the first year of her post, (1999 and 2000) the prosecutor issued new indictments only connected with criminal events in Bosnia-Herzegovina.634

Concerning investigations for the NATO bombing, Del Ponte had a very different take than her predecessor. She openly declared that she would make enquiries and set up an independent commission and in her memoirs she openly blamed the lack of cooperation from NATO and other states on the lack of NATO indictments “I felt the committee members, had drawn restrictive interpretations to avoid being obligated to go on. I must confess however that I knew going on was impossible, both technically and professionally. We had no cooperation, none, from anybody – this was the technical problem. And it was impossible to go on politically without undermining the tribunal’s work”635

631 Ibid. 632 Del Ponte, “Investigation and Prosecution of Large-Scale Crimes at the International Level The Experience of the ICTY,” 542–43. 633 Ibid., 543. 634 ICTY, IT-00-40-I. Prosecutor v. Plavšić - Initial Indictment (2000).ICTY, IT-00-41. Prosecutor v. Ljubičić - Initial Indictment (2000). 635 Del Ponte and Sudetic, ”Madame Prosecutor”, 61.

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In 2001 Del Ponte focused on the Dubrovnik region of Croatia,636 and Srebrenica637 and she initiated the prosecution of Croatian generals Gotovina and Ademi for the persecution of Serb civilians in Medak Pocket and Operation Storm in Croatia. 638 In addition, after focusing again on criminal events in Bosnia- Herzegovina,639 in September 2001, and nearly four months after Milošević appeared at the tribunal, the prosecutor announced indictments against Milošević for JCE in Croatia and a forthcoming accusation for Bosnia.640

In 2002, Del Ponte issued indictments for Srebrenica641 and later for crimes in the localities of Prijedor and Glogova in Bosnia Herzegovina.642 The prosecutor also targeted the Croatian general Bobetko.643 In 2003 Del Ponte expanded the indictments to members of the KLA in Kosovo644 and focused on the deportation, persecution and murder aided by the founder of the Serbian National Renewal Party.645 Del Ponte also targeted additional suspects for crimes in Srebrenica646 and forced displacement in the areas of Krajina and other large areas of Bosnia.647

The completion strategy forced Del Ponte to limit her selection of indictees and to prosecute exclusively “senior leaders”. This differed from the previous historical caseload inherited from Goldstone. This constraint was visible when

636 ICTY, IT-01-42. Prosecutor v. Strugar, Jokić, Zec & Kovačević - Indictment (2001). 637 ICTY, IT-01-43. Prosecutor v. Obrenović - Initial Indictment (2001). 638 ICTY, IT-01-45-I. Prosecutor v. Gotovina - Indictment (2001). 639 ICTY, IT-01-48-I. Prosecutor v. Halilović - Initial Indictment (2001). 640 Hagan, “Justice in the Balkans”, 223.ICTY, IT-01-50-I. Prosecutor v. Milošević - Initial Indictment “Croatia” (2001). ICTY, IT-01-51-I. Issued in November the same year, Prosecutor v. Milošević - Initial Indictment “Bosnia and Herzegovina” (2001). 641 ICTY, IT-02-56-I. Prosecutor v. Nikolić - Indictment (2002). ICTY, IT-02-57-I. Prosecutor v. Popović - Indictment (2002). 642 ICTY, IT-02-59-I. Prosecutor v. Mrđja - Initial Indictment (2002). ICTY, IT-02-61-I. Prosecutor v. Deronjić - Initial Indictment (2002). 643 ICTY, IT-02-62. Prosecutor v. Bobetko - Initial Indictment (2002). 644 ICTY, IT-03-66-I. Prosecutor v. Limaj, Bala, Musliu & Murtezi - Indictment (2003). 645 ICTY, IT-03-67. Prosecutor v. Šešelj - Initial Indictment (2003). 646 ICTY, IT-03-68-I. Prosecutor v. Orić - Initial Indictment (2003). 647 ICTY, IT-03-69. Prosecutor v. Stanišić & Simatović - Initial Indictment (2003). Also for persecution against non-Serbs ICTY, IT-03-72. Prosecutor v. Babić - Initial Indictment (2003).

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Del Ponte expanded her enquiries into the war of Macedonia, where the Kosovo crisis originated a refugee influx of 340 000 Kosovo Albanians and violent clashes erupted in 2001.648

Facing allegations of war crimes and the possibility of amnesties, Del Ponte requested the referral of several investigations and prosecutions being conducted in Macedonia concerning the alleged crimes. Del Ponte requested additional donations from NATO member states in order to undertake these examinations, increasing her crime-site list. 649 However, the judges gave her no permission arguing that “the tribunal, for the remaining time of its mission, should concentrate on high level perpetrators only … it appears inappropriate … to request the deferral of all current and future investigations and prosecutions, notwithstanding their potential seriousness … or the status of alleged perpetrators, to the competence of the tribunal.” 650

At the same time, a new challenge arose: the more charges that were contained within a particular indictment, the longer the trial itself would take. Therefore, Del Ponte simultaneously had to embrace the concept of selective charges and an increase of the use of plea-bargain agreements in the ICTY that traded “more serious charges – genocide included – for lesser charges.”651

648 Sundhaussen, “Jugoslawien und seine Nachfolgestaaten 1943-2011”, 487–92. 649 United Nations, “Tenth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991” (ICTY, August 20, 2003), para. 236.ICTY, “Press Release. GR/P.I.S./642-E. Address by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Carla Del Ponte, to the UN Security Council.” 650 ICTY, “CC/P.I.S/700-E. Press Release. The Former Yugoslav Republic of Macedonia Requested to Defer Five Cases to the Competence of the International Tribunal,” October 7, 2002, http://www.icty.org/sid/8069. “In Macedonia, an amnesty covering certain crimes committed by ethnic Albanian rebels was an essential component of the 2001 peace settlement that dampened conflict after the post-Kosovo fighting. This amnesty did not, however, cover crimes under the purview of the ICTY. The tribunal’s subsequent investigations in Macedonia created a pretext for Slavic Macedonian nationalists to resume fighting ethnic Albanian former guerrillas accused of committing atrocities, which nearly caused the settlement to unravel”. Jack Snyder and Leslie Vinjamuri, “Trials and Errors. Principle and Pragmatism in Strategies of International Justice,” International Security 28, no. 3 (Winter /2004 2003): 36. 651 “Charge bargaining began in 2002 when Milac Simić pleaded guilty to two counts of torture as crime against humanity in exchange for the OTP dropping, inter alia, one count of persecution as a crime against humanity” in addition the charges of genocide were withdrawn against Biljana Plavšić in exchange for her guilty plea in 2001. Heller, Kevin Jon (2012): “Completion” in: “International Prosecutors.” Edited by Luc Reydams, Jan Wouters & Cedric Ryngaert, pp. 886–925. Other limitations outside the scope of this research would refer to the 155

In March 2004, Del Ponte indicted the President of the Croatian Defence Council (HVO) and other functionaries of the minister of defence and the military police administration.652 Subsequently she issued a new indictment against the Croatian General Norac, which was later consolidated in a joint indictment with Ademi653 Subsequently in May, Del Ponte made public an indictment against the self- proclaimed president of the Serbian Krajina for persecution against non-Serb population.654 Del Ponte was only allowed to target two defendants for the attacks on ethnic Albanians in the Former Yugoslavia Republic of Macedonia.655 Her last indictments included the KLA leader Haradinaj (unsealed in March 2005)656 and the crimes of forced displacement in Kosovo. Additionally, she also decided for joint indictments for the killings in Srebrenica.657

3.4.4.1 The “indict-all-parties” strategy The correlation between internal and external aims of the tribunal led Del Ponte to shape her indictment policy to “represent” the conflict in order to create an accurate historical narrative of the wars. In her view, this would merge together the objectives of criminal accountability within the peace and reconciliatory process required by the SC. For this achievement, she decided that all the parties in the conflict had to be investigated so that the “Tribunal … does not pass into amended version of rule 73bisRPE in which the trial Chamber could direct the prosecutor to select the counts in the indictment. 652 ICTY, IT-04-74. Prosecutor v. Prlić, Stojić, Praljak, Petković, Corić & Pusić - Indictment (2004). 653 ICTY, IT-04-76. Prosecutor v. Norac - Indictment (2004).ICTY, IT-01-46 & IT-04-76. Prosecutor v. Ademi & Norac (2004). 654 ICTY, IT-04-75-I. Prosecutor v. Hadžić - Initial Indictment (2004). 655 ICTY, IT-04-82. Prosecutor v. Boškoski & Tarčulovski - Initial Indictment (2004). 656 ICTY, IT-04-81. Prosecutor v. Perisić - Initial Indictment (2005). ICTY, IT-04-83-PT. Prosecutor v. Delić - Indictment (2005).ICTY, IT-04-84-I. Prosecutor v. Haradinaj, Balaj & Brahimaj - Indictment (2005). 657 ICTY, IT-05-86-I. Prosecutor v. Pandurević & Trbić - Initial Indictment (2005). ICTY, IT- 05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đorđević & Lukić - Amended Joinder Indictment (2005). ICTY, IT-05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đ orđević & Lukić - Second Amended Joinder Indictment (2006).ICTY, IT-05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đorđević & Lukić - Third Amended Joinder Indictment (2006).

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history as having being flawed and biased in favour of one ethnic group against another”.658 Del Ponte’s policy to include all the parties involved in the conflict resulted in a caseload that charged suspects from eight national or ethnic groups whose alleged crimes resulted in fewer victims than in her predecessors’ cases. In this regard, one interesting point that could be made (coinciding with de Vlaming) is that Del Ponte overweighed historical representation and ethnicity rather than – her own interpretation of – seriousness of the offences. Accordingly, her indictment policy resulted in a number of defendants being selected “based on membership of a particular national or ethnic group rather than the gravity of the crimes.”659 Up to the enactment of the completion strategy, Del Ponte maintained a layered approach, targeting senior officials and multi-level defendants. Her policy was also compromised by a variety of contextual political and financial factors derived from the clear mandate by the SC to end the work of the Tribunal.

In contrast to her predecessors, when facing non-compliance Del Ponte preferred to deal with national governments than with the Security Council or other international institutions. “The only leverage the tribunal has is to approach national governments to ask for their support to convince uncooperative states …

658 ICTY, “Press Release. JL/P.I.S./542-E. Address to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the UN Security Council.” 659 This is especially evident in the comparison of the number of victims in Del Ponte’s indictments for crimes in Kosovo against KLA leaders Haradinaj, Balaj and Bahimaj and the indictments against high ranked defendants for crimes in Macedonia. For KLA see, ICTY, IT- 04-84-I.Prosecutor v. Haradinaj, Balaj & Brahimaj - Indictment (2005). ICTY, IT-04-84-PT. Prosecutor v. Haradinaj, Balaj, Brahimaj - Amended Indictment (2006). ICTY, IT-04-84-PT. Prosecutor v. Haradinaj, Balaj, Brahimaj - Revised Second Amended Indictment (2007). ICTY, IT-04-84-T. Prosecutor v. Haradinaj, Balaj, Brahimaj - Third Amended Indictment (2007). ICTY, IT-04-84-T. Prosecutor v. Haradinaj, Balaj, Brahimaj - Fourth Amended Indictment (2007). For the Macedonia case, see ICTY, IT-04-82. Prosecutor v. Boškoski & Tarčulovski - Initial Indictment (2004). ICTY, IT-04-82-PT. Prosecutor v. Boškoski & Tarčulovski - Amended Indictment (2005). Additionally, de Vlaming, “Selection of Defendants,” 558. Former ICTR prosecutor, writes “[I]t has become an open secret that international Prosecutors, in selecting a potential indictee, may take into account criteria related to their belonging to or affiliation with a certain group in order to present in court more balanced cases involving all parties to the conflict that committed serious violations of IHL” Luc Côté, “Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law,” Journal of International Criminal Justice 3, no. 1 (March 1, 2005): 176.

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during my eight years in The Hague, I dedicated the bulk of my time to mustering political pressure upon states like Serbia and Croatia”. 660

This had two consequences: firstly, her decisions were tied up to the collaboration and information she could obtain and the public perception and approval of what was important (manifested in the form of donations or the sharing of information). The former OTP spokesperson, Florence Hartmann argued that the indictment of Milošević for Sarajevo was primarily based on the fact that it was (together with Srebrenica) one of the two most symbolic events in the war of Bosnia.661

Secondly she narrowed collaboration to the transfer of certain indictees who “represented” the conflicts, such as Gotovina, Karadzic and Mladic. Positioning the OTP within complex and multidimensional processes related to financial reconstruction, domestic political alliances, external aid and EU accession (among others).

3.5 Conclusions

This chapter has aimed to show the importance of external or “non legal” activities for the deliberations to target defendants in different OTP’s tenures. It advances the idea that the struggles and collisions between internal and external mandates that apparently oppose ‘formal’ law and other (diplomatic, financial or state interests, etc.) were the result of competition between political power brokers and that “law within this field compete for media attention, funding and political influence – [therefore providing] a forum for these groups to define their interests, positions and causes”. 662

The decisions over the indictee list were subjected to a constant evaluation of cooperation and political gain and impact on the overall continuation of the tribunal as a viable UN institution and the positioning of the OTP within the Balkan peace process. The OTP was also affected by formal and informal power

660 Del Ponte and Sudetic, “Madame Prosecutor, ” 42. 661 Hartmann, “Paix et châtiment. Les Guerres Secrètes de la Politique et de la Justice Internationales”, 88. In relation to the lack of evidence for the Shelling of Sarajevo in connection with Milošević, Marko Prelec, “Body of Evidence. The Prosecution’s Construction of Milošević,” in “The Milošević Trial. An Autopsy” (Oxford: Oxford University Press, 2013), 362–364. 662 John Hagan and Ron Levi, “Crimes of War and the Force of Law,” Social Forces 83, no. 4 (2005): 1507. Further, Koskenniemi, “What Is International Law For?”

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factors. As for instance, the enactment of the Security Council’s Completion Strategy (formal) and the lack of funding, intelligence data or access to archives (informal).

As a result of this, indictment policy remains over-determined by the same formal and informal power constraints from which it operates and it does not function outside them, remaining fixed by the structural bias reflected in these “external” frameworks. The three-dimensional conceptualization of power portrayed in the introduction is important to understand that decision-making processes from the side of the OTP were influenced not only through visible (and therefore) formal channels but more importantly by subtle power configurations that were also institutionally embraced.

The three tenures show that in producing indictments the OTP followed what Greenawalt calls a prosecutorial meta-realpolitik “a pragmatic inclination to focus on suspects whose prosecution is more likely on account of the political priorities of states best situated to effect arrest”663 and moreover, in cases where arrests were contested, chief prosecutors used forms of enforceability that were specially connected with domestic political gains such as foreign aid and political inclusion (EU).

663 Greenawalt, “Milošević and the Justice of Peace,” 383.

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IV. Selectivity and non-legality patterns in indictment policy

There was one unfortunate aspect related to the first budget meeting. I had also been informed ahead of time that at least one indictment had to be issued before the November meeting in order to demonstrate that the system was working and that the tribunal was worthy of financial support … every dollar voted for the Tribunal was one dollar less for other important agencies. For that reason, we issued our first indictment against Dragan Nikolić. - Richard J. Goldstone.664

4.1 Introduction

This chapter aims at re-describing indictment policy from the “outside” through the purview of two forms of non-legality configurations: the financial and budgetary procedures over the OTP and ICTY funding and the peace building administration of the United Nations Interim Mission in Kosovo (UNMIK).

As discussed in the introduction, description is used in this section as a system of assembling, clarifying and making visible the specific role of UN agencies, the EU and other external sources as active agents in contributing to selectivity. To that degree allowing to questions the dominant representation of ‘the lack of prosecutions’ as a situation beyond the reach of “law”.665

Thus, the first part of this chapter will revise the financing reports by the Fifth Committee, the Advisory Committee on Administrative and Budgetary Questions (ACABQ) and the regulatory framework of voluntary contributions and donations. The subsequent section unpacks financial regulations across bureaucratic frameworks and performance indicators as reconfigurations of indictment policy. In order to evaluate the repertoire of guidelines, protocols, expert reports and standards implementations, the chapter analyses the texts produced in both contexts “in ways such texts were generically and institutionally

664 Richard J. Goldstone, “For Humanity: Reflections of a War Crimes Investigator, ” First Edition (New Haven: Yale University Press, 2000), 105. Rajkovic, “The Politics of International Law and Compliance,” chap. 3. 665 See 1.6 Methodology on the use of description.

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never meant to be read”666 so as to consider how much these regulatory frames actually did in relation to everyday practices of indictment policy and the production of selectivity.

The third sub-section of this chapter addresses peace building regulations through the approach of soft-law and the collision of mandates with OTP orders. Building on these premises, the next part reconfigures indictment policy from these administrative ‘voids’. The last sub-section re-defines selectivity from these financial, administrative and diplomatic normative ‘vacuums’.

My claim is that grounding the approach to selectivity in non-legal regulatory frameworks would highlight the normative configurations that position selectivity within a highly normative spectrum of practices of UN administration agencies and international diplomacy.

Selectivity appears then as the outcome of systemic bias-practices intertwined with highly regulated spheres of non-legality.

4.2 Indictment policy from the outside

4.2.1 Economic regulation

4.2.1.1 Fifth Committee and the Advisory Committee on Administrative and Budgetary Questions (ACABQ) Article 32 of the ICTY statute provides that its expenses “shall be borne by the regular budget of the United Nations”.667 As the ICTY is a subsidiary body of the Security Council, its contributions are governed by the UN scale of assessments. The ICTY budget is ratified for a two-year period by the General Assembly (GA) and the Fifth Committee of the GA on the recommendations of the Advisory Committee on Administrative and Budgetary Questions (ACABQ).668

666 For an example of this approach see Orford, “Reading Humanitarian Intervention. Human Rights and the Use of Force in International Law, ” chap. 2. 667 ICTY, Statute of the International Criminal Tribunal of the Former Yugoslavia, 1993. 668 The scale of assessments is established by a three year validity formula with criteria including (a) Estimates of gross national income (b) Average statistical base periods of three and six years; (c) Conversion rates based on market exchange rates, except where that would cause excessive fluctuations and distortions in the income of some Member States, when price- adjusted rates of exchange or other appropriate conversion rates should be employed, taking 161

The fifth or administrative committee of the UN assembly is assisted by the ACABQ for the expert examination of the programme budget of United Nations. In accordance with the rules and procedures of the General Assembly, the Fifth Committee may “accept, curtail or reject the recommendations of ACABQ. The conclusions and recommendations of ACABQ often form the basis of the draft resolutions and decisions recommended by the Fifth Committee.”669 The ACABQ has sixteen members elected by the GA for a period of three years. The Committee holds three sessions a year and ACABQ work is determined by the requirements of the assembly and other legislative UN bodies.670 Committee members are responsible, among other tasks, to examine the “administrative budgets of the specialized agencies” and to allocate what percentage share of the UN budget is charged to each member state. In relation to the ICTY the overall budget is prepared by the Registry based on each organ budgetary submissions, “in terms of defending the budget, the registrar and Prosecutor or Deputy Prosecutor have both appeared before the ACABQ”. 671

due account of its resolution 46/221 B. (d) The debt-burden approach employed in the scale of assessments for the period 2010–2012; (e) A low per capita income adjustment of 80 per cent, with a threshold per capita income limit of the average per capita gross national income of all Member States for the statistical base periods; (f) A minimum assessment rate of 0.001 per cent; (g) A maximum assessment rate for the least developed countries of 0.01 per cent; (h) A maximum assessment rate of 22 per cent. United Nations, “Regular Budget and Working Capital Fund,” accessed August 27, 2015, http://www.un.org/en/ga/contributions/budget.shtml. Additionally, United Nations, “Committee on Contributions” http://www.un.org/en/ga/contributions/tribunals.shtml. Wierda Wierda and Anthony Triolo, “Resources,” in “International Prosecutors, ” ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert (Oxford: Oxford University Press, 2012), 116. 669 United Nations, “General Assembly of the United Nations Administrative and Budgetary - Fifth Committee,” n.d., http://www.un.org/en/ga/fifth/faq.shtml.In addition, Rule 153 RPGA: “No resolution involving expenditure shall be recommended by a committee for approval by the General Assembly unless it is accompanied by an estimate of expenditures prepared by the Secretary-General. No resolution in respect of which expenditures are anticipated by the Secretary-General shall be voted by the General Assembly until the Administrative and Budgetary Committee (Fifth Committee) has had an opportunity of stating the effect of the proposal upon the budget estimates of the United Nations.” 670 United Nations, “Advisory Committee on Administrative and Budgetary Questions (ACABQ),” n.d., http://www.un.org/ga/acabq/. 671 Wierda and Triolo, “Resources,” 117.

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The relationship between the ICTY and both the Fifth Committee and ACABQ has been characterised by constant tension since the court began its operations.672 In addition, the General UN assembly had a very fragmented position in relation to the setup of the tribunal, its functioning and budgetary management. The finance procedure over the OTP and ICTY at large, created serious difficulties because the GA considered that the Security Council infringed its budgetary prerogatives.673 Many developing countries deliberated that the ICTY was created through a unilateral SC decision, contravening other UN statutory bodies, as the constitution of the ICTY resembled the budgetary formula of SC peacekeeping operations. Therefore, developing countries deemed that the ICTY costs should be apportioned with the same assessment scale that the peacekeeping account under which these States would pay a lower rate than with the regular budget.674 Article 32 also provoked severe criticism by ACABQ in relation to the UN secretariat proposals for staffing and financing. This resulted in the cut down from 400 staff and three courtrooms to about 100 employees and one single courtroom.675 In June 1993, five months after the tribunal was established, the UN secretary- general requested the approval of “unforeseen and extraordinary expenses” to the ACABQ in order to implement its resolution 827, which established the ICTY statute. One month afterwards, ACABQ granted a total sum of US$ 500,000 and

672 United Nations, “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 Since 1991,” 15–16. 673 Julian Schutte, “Legal and Practical Implications, from the Perspective of the Host Country, Relating to the Establishment of the International Tribunal for the Former Yugoslavia,” in “The Prosecution of International Crimes: A Critical Study of the International Tribunal for the Former Yugoslavia, ” ed. Roger Stenson Clark and Madeleine Sann (Transaction Publishers, 2003), 209–10. 674 Ruben Mendez, “Financing the United Nations and the International Public Sector: Problems and Reform,” Global Governance 3, no. 3 (December 1997): 283–310. 675 Schutte, “Legal and Practical Implications, from the Perspective of the Host Country, Relating to the Establishment of the International Tribunal for the Former Yugoslavia,” 209– 10. United Nations, “A/47/980 - Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991. Establishment of the International Tribunal” (ACABQ, July 22, 1993). United Nations, A/RES/47/235 - Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991, 1993.

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requested a detailed justification of the number of posts, grade level and the allowances for the judges.676 By December 1993, the General Assembly based on ACABQ’s opinion refused to approve the $33.2 million budget for the biennium 1994-1995 reducing the allocation to $5.6 million for the first half of 1994.677 Monetary allowances were granted for periods of 6 to 12 months678 and ACABQ estimates and recommendations of monetary allowances were one third of the amount the secretary-general proposed for the proper functioning of all the organs of the ICTY.679 Examining the Fifth Committee and ACABQ reports issued in relation to the financial aspects of the OTP and the ICTY (1993-2007), it is clear that budgetary restrictions and conflicts have persisted through all OTP’s tenures (albeit with different features). A main trait was the control concerning operational aspects of both the OTP and the ICTY. These forms of regulation have included procedures over finances, number of posts and conditions of service of staff including travel allowances, gratis personnel, assessment of financial effectiveness, productivity and functioning of different organs, reception of donations and voluntary contributions and audited financial statements. Between July 1993 and December 2007, ACABQ issued 45 reports that were vital for the overall performance and day-to-day operational capacity of the OTP. Additionally, the budgetary regulations pertaining to the functioning of the OTP in each tenure are marked by different resources management and – as observable

676 United Nations, “A/47/980. Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991. Establishment of the International Tribunal” (ACABQ, July 22, 1993). This is in response to the Secretary General United Nations, A/47/955 - Request for the Inclusion of Additional Items in the Agenda of the Forty-Seventh Session; Financing 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; Election of Judges 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, 1993. 677 United Nations, “A/RES/48/251 - Resolution Adopted by the General Assembly; Financing 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, ” 1994. 678 United Nations, “A/48/765 - Report of the Advisory Committee on Administrative and Budgetary Questions,” December 15, 1993. 679 United Nations, “A/C.5/48/44. Report to the Secretary-General as Requested by the General Assembly in Resolution 47/235,” December 8, 1993, para. 14.

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from the reports and UN resolutions – regulations and additional administrative constraints have increased over the years.

1) Goldstone: Indictment ‘productivity’

By March 1994, ACABQ had no information from the Secretary General to justify the numbers and levels of staff requested for the tribunal, which rendered ACABQ “not in a position to make a qualified judgment in regard to the proposed overall requirements under general temporary assistance owing to the absence of information … [for] 1994-1995.”680 The initiation of the tribunal activities was met with an undervalued estimation dated from the year before that contemplated an appropriation of resources by a total of US$ 11,000,000 per year. 681 The budget question was addressed in spring 1994, as it was made clear by ACABQ “several provisions of the statute of the international tribunal adopted by the Security Council have a direct relevance to the analyses by the committee of budgetary and administrative matters relating to the tribunal”.682 The ACABQ scheduled a meeting with Goldstone (together with the ICTY registrar) to justify the OTP resources in December 1994. As Goldstone recognized, he was given advice to have an indictment ready in November, before the reunion, in order to “demonstrate” the efficiency of the tribunal and its financial value.683 “In order for the work to continue we had to get out an indictment quickly. That is the explanation of the Nikolić indictment”.684 The indictment of Nikolić issued on 4 November, 1994 allowed the tribunal to be granted an additional US$ 7 million to cover its activities until the end of March

680 United Nations, “A/48/915 - Report of the Advisory Committee on Administrative and Budgetary Questions,” March 29, 1994, para. 12,14. 681 United Nations, “A/C.5/48/44. Report to the Secretary-General as Requested by the General Assembly in Resolution 47/235.” Ibid. 682 United Nations, “A/48/915 - Report of the Advisory Committee on Administrative and Budgetary Questions,” para. 3. 683 Goldstone, “For Humanity, ” 105. 684 Goldstone, “Prosecuting Rape as a War Crime,” 281.

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1995.685ACABQ considered additionally, that “questions related to conditions of service, which are issues having administrative and budgetary implications, should be brought to the General Assembly for its action before final action is taken in any other forum.”686 In December 1995, the Secretary-General requested to provide the tribunal a total amount of US$ 40,779,300687, the General Assembly refused the request deciding on US$ 8,619,500 for the period from 1 January to 31 March 1996 “to allow the international tribunal to continue its activities.”688 In April 1996, The General Assembly only authorized expenditures until June the same year for US$ 7.6 million and in a meeting in June 1996 allowed the appropriation of US$ 27.8 million for the period from 1 April to 31 December 1996.689

There was a constant necessity to validate the productivity of the tribunal in terms of its achievements to different bureaucratic forums. In June 1996, the General Assembly proposed the revision of the tribunal work by the Office of Internal Oversight Services (OIOS) “With a view to identifying problems and recommending measures to enhance the efficient utilization of resources, and to report thereon to the General Assembly”.690 Three years after the opening of the

685 United Nations, “A/49/790 - Report of the Advisory Committee on Administrative and Budgetary Questions,” December 16, 1994, para. 8. ICTY, IT-94-2-I. Prosecutor v. Nikolić - Initial Indictment (1994). 686 United Nations, “A/48/915 - Report of the Advisory Committee on Administrative and Budgetary Questions,” para. 8. 687 United Nations, “A/C.5/50/41.Financing 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.Report of the Secretary-General” (Secretary-General United Nations, December 13, 1995). 688 United Nations, “A/RES/50/212 A - Resolution Adopted by the General Assembly; Financing 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, ” 1995.

689 United Nations, “Third 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 Since 1991.,” August 16, 1996, para. 131.

690 United Nations, “A/51/7/Add.7 - Financing 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 (ITY),” January 1, 1997, para. 2.

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tribunal its financial efficiency continued to be questioned in audit reports pointing to “unnecessary expenditures”.691 ACABQ also intervened in the hiring of OTP staff exemplified in the quote: “the committee notes that the budgetary provisions for 1996 … reflect the reorganization of the Office of the Prosecutor … The Committee notes that the Secretary-General proposes (para 33) the establishment of 17 new posts in the investigation section … The Committee agrees with that proposal, with the exception of the new P-5 post for the position of Senior Legal Officer … The Committee is not convinced of the need for this post at this time since it appears that its functions are to coordinate”.692 Another complication was the fact that General Assembly approved, as an ad hoc financial arrangement, that member states waived their shares in remaining credits from the budget corresponding to United Nations Protection Force (UNPROFOR) to be transferred to the special account of the Tribunal. This led to two further problems, firstly, by 1993 the different components of UNPROFOR in Former Yugoslavia were financed differently and depending on geopolitical and economic variables, which made some contributors reluctant to comply with payments. When the ICTY began its functioning, the unpaid assessment contributions to UNPROFOR amounted to US$ 242.3 million.693 Secondly, even for those states that were able to contribute in time to UNPROFOR, funding on peacekeeping operations “has shown that there is a significant time lag of about 60 to 120 days between the issuance of assessments and the collection of contributions.”694 This form of “temporary” financial compromise began at the OTP formative years just after Goldstone assumed his post and continued through the first year of Arbour’s tenure in 1997. Under this scheme, one half of the costs of the tribunal would be financed by assessment contributions at the scale of the regular budget and the other half was budgeted “as an ad hoc and exceptional arrangement” from

691 United Nations, “A/51/432.Report of the Secretary-General on the Activities of the Office of Internal Oversight Services” (United Nations, September 30, 1996), para. 78,79,80. United Nations, “A/52/426. Annual Report of the Office of Internal Oversight Services (OIOS) for the Period 1July 1996 to 30 June 1997,” October 2, 1997. 692 United Nations, “A/50/925 - Financing 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 (ITY),” April 10, 1996, para. 20,21. 693 Higgins, “The New United Nations and Former Yugoslavia,” 478. 694 United Nations, “A/60/437. Updated Financial Position of Closed Peacekeeping Missions as at 30 June 2005,” October 18, 2005, para. 9.

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credits.695 The outcome was the extreme conditionality of the OTP to “demonstrate” its financial worth on a six-month basis.

2) Arbour: Introducing performance indicators

In the context of the Kosovo investigations, ACABQ requested “performance indicators” to the submission of budgetary reports. “The Advisory Committee believes that it is essential to have the most up-to-date actual performance results of workload indicators. Experience has shown that too often projected activities are not fully implemented.”696 In addition, monetary considerations were weighted in relation to OTP’s requests to hire new staff, for instance, concerning the uses by the OTP of general temporary assistance the ACABQ raised doubts “whether such expertise could be obtained on a short-term basis from funding for general temporary assistance”697. In assessing the demand for two additional trial teams at the OTP, ACABQ commented: “the advisory committee points out that the work to be carried out can often be interchanged as between various teams. With flexible management, it will not, therefore, be necessary to automatically add three teams for the third courtroom … there will thus be a consequent reduction of one team … from the proposal of the Secretary-General … the Committee does not recommend the approval of two additional P-2 military intelligence analysts post. The Advisory Committee recommends the approval of six … of the eight additional posts requested for the investigation Division”.698 For the budgetary deliberation of 1999, the OTP requested 104 additional posts of which ACABQ only approved 42, as it was not convinced of the suitability, stating in relation to the OTP funding and staff demands “the budget request appears to tend to cover every possible eventuality. No attempt is made to absorb

695 Mendez, “Financing the United Nations and the International Public Sector: Problems and Reform,” 290. 696 United Nations, “A/53/651 - Revised Budget Estimates for 1998 and Proposed Requirements for 1999 of the International Tribunal for the Former Yugoslavia (ICTY),” November 9, 1998, para. 7. 697 Ibid., para. 18. 698 Ibid., paras. 20–21.

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some of the functions and additional workload by effective implementation of productivity measures and economies of scale”.699 Challenging the OTP requests was also a practice of ACABQ that “the Committee does not believe that the reason for not being able to meet investigative and prosecution targets is lack of resources”700 including statements such as “[T]he Advisory Committee believes that this argument is not sufficiently persuasive”701 thereby rejecting the additional OTP personnel request for hiring co-counsels to alleviate the burden of the new expanded mandate in Kosovo. In 1998 the General Assembly, acting upon the recommendations of the Fifth Committee in acquiescence with ACABQ, ordered a review of the operation and functioning of the ICTY with the “objective of ensuring the efficient use of the resources of the tribuna[l]”. This resulted in the appointment of a five-member expert group guided by the 1998 and 1999 revised budgetary estimates of ACABQ.702 The productivity approach was reflected in the expert group recommendations to the OTP concerning three points; firstly that the use of multi-counted indictments tended to complicate and unnecessarily prolong trial proceedings; secondly, that the OTP should focus on cases for which the prosecutor fully expects to obtain enough evidence to substantiate indictments and thirdly, in order to reduce post-

699 Ibid., paras. 30–32. 700 Ibid., para. 41. 701 Ibid., 46. 702 United Nations, “A/RES/53/212 - Resolution Adopted by the General Assembly; Financing 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,” 1999, para. 5. United Nations, “A/53/651 - Revised Budget Estimates for 1998 and Proposed Requirements for 1999 of the International Tribunal for the Former Yugoslavia (ITY),” para. 65. The expert group consisted of Jerome Ackerman, former president of UN administrative tribunal; Pedro R. David from the Argentinian Cámara de Casación Penal; Hassan Jallow, justice of the Gambian Supreme Court; K. Jayachandra Reddy former public prosecutor and judge of the Indian Supreme court and Patricio Ruedas, former UN under Secretary-General for administration and management. Daryl Mundis, “Improving the Operation and Functioning of the International Criminal Tribunals,” The American Journal of International Law 94, no. 4 (October 2000): 760. United Nations, “Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda,” November 22, 1999, para. 4.

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trial investigations (and therefore expenses), a case should be “trial ready” at the stage of indictment.703

3) Del Ponte: Efficiency intervention

Although Del Ponte’s budget increased from 1999, this increase was combined with intense scrutiny of the performativity of the court, the revision and the close monitoring of all organs expenses, the reduction of staff and Security Council measures through the modification of RPE in order to curb the growth of the tribunal.

In May 2000, ACABQ requested the submission of two separate reports “in the context of the budgets of the Tribunals, on the actions taken or to be taken in respect of the recommendations that remain under review … Furthermore, a comprehensive report should be submitted to the fifty-sixth session of the General Assembly on the results of the implementation of the recommendations of the Expert Group”.704

In June 2000 the Security Council created an informal working group on international tribunals with the specific purpose of overviewing the ICTY statute.705

By November 2000, ACABQ encouraged the amendments of RPE in order to expedite trials and for the re-arrangement of legal aid. 706 In addition, the Security Council acting under Chapter VII of the UN charter amended the ICTY statute

703 United Nations, “Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda,” 56,92. 704 United Nations, “A/54/874 - Comments on the Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia (ITY) and the International Criminal Tribunal for Rwanda (ICTR),” May 19, 2000, para. 14. 705 United Nations. Security Council, “Informal Working Group on International Tribunals (2000-2003),” n.d., http://www.un.org/en/sc/repertoire/2000-2003/00-03_5.pdf#page=20. 706 United Nations, “A/55/642 - Financing 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 (ITY): Proposed Requirements for 2001,” November 22, 2000, paras. 55, 56.

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and approved the creation of ad litem judges to expedite “the conclusion of [the] work at the earliest possible date”.707

In November 2001, ACABQ received a budget report for the subsequent biennium 2002-2003 in “direct consequence of the Security Council resolution 1329” improving the court session capacity by 20 per cent to support the accelerating programme of the work court and changes in the management due to RPE amendments. ACABQ received opposite feedback concerning the completion of the OTP’s work. Judge Jorda’s report stating that the OTP “expects to finalize all investigations by 2004 and to complete its first instance trials by 2008” was not advocated by the Deputy Prosecutor708 and ACABQ decided to scrutinize other aspects that could contribute to the determination of the exit strategy under the premise that it was not convinced that a “rigorous examination was undertaken of approved resources before making proposal for additional funds”.709 Furthermore, it demanded that budget reports are accompanied by yearly reports on “financial and programme performance” for each of the three organs in which additionally “savings arising from management efficiencies and productivity measures should be fully explained”.710 These measurements were taken jointly with decisions against the appointment of temporary staff and modifications of the internal structure of the OTP, such as the dismantling of preparatory teams and the transfer or redeployment of OTP personnel to focus on “trial” tasks instead of additional investigations. ACABQ rejected requests for 17 OTP posts.711 By the end of December 2001, the Fifth Committee proposed the placing of resident auditors from the OIOS in The Hague to enhance oversight coverage and

707 United Nations. Security Council, UN Security Council Resolution 1329, 2000. 708 United Nations, “A/56/665 - Budget 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 (ITY) since 1991 for the Biennium 2002-2003,” November 28, 2001, para. 1,2,3. 709 Ibid., para. 8. 710 Ibid., para. 13. 711 Ibid., para. 32,35.

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improve internal control mechanisms “strengthening the rule of internal oversight services at the International Tribunal”.712

In the period of implementation of the completion strategy (2002-2004) ACABQ imposed additional budgetary constraints whereby the General Assembly reported that the OTP would revise its investigations to determine two lists of priorities. “The “A” list would reflect the most serious crimes and the highest level perpetrators and the “B” list, comprised of lower-level suspects, would be addressed only if there was time and sufficient resources to carry out the work.”713

In the OTP, productive measurements resulted in the redeployment of 18 posts to priority areas and the abolition of 43 posts. The intention of Del Ponte, to target additional crimes in Kosovo and Macedonia were met with the call to end investigations for new indictments and the request to close down OTP field offices in Skopje and Pristina by the end of 2004.714

The OPT reported to the Secretary General the expected accomplishments as “effective management and implementation of the completion strategy” coupled with the indicators of achievement “number of indictments completed within the stipulated time frame.”715 Additional budgetary revisions were proposed by ACABQ in October and November 2003. 716At the same time it was

712 United Nations, “A/56/717 - Revised Estimates Resulting from the Strengthening of the Role of Internal Oversight Services at the International Tribunals for the Biennium 2002-2003,” December 18, 2001.United Nations, “GA/AB/3490. Press Release. Draft Decisions on 2002- 2003 Budget Estimates, Political Missions Approved by Fifth Committee,” December 19, 2001, http://www.unis.unvienna.org/unis/en/pressrels/2001/gaab3490.html. 713 United Nations, “A/58/226. Budget for the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 for the Biennium 2004-2005 Report of the Secretary-General,” August 6, 2003, para. 33. 714 Ibid., para. 36. 715 Ibid., 13. 716 United Nations, “A/58/449 - Financing 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 (ITY) since 1991 for the Biennium 2004-2005,” October 20, 2003. United Nations, “A/58/554 - Financing of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 for the Biennium 2004-2005 (ICTR),” November 6, 2003. United Nations, “A/58/605 - Second Performance Report of the International Criminal Tribunal for the Former Yugoslavia (ICTY) for the Biennium 2002- 172

acknowledged that the severe problems at the OTP due to recruitment freeze and the lack of payments contributions by UN State members.717

The biennium 2006-2007 intensified the need for the use of umbrella trials (and therefore joint indictments) with multiple accused to reduce costs, conserve resources and increase the productivity of OTP staff.718 Though the average costs per annum were over US$ 150 million, ACABQ promoted its use mainly for the completion of all trial and appeal activities to complete the exit strategy.719

4.2.1.2 Donations and voluntary contributions

On September 14 1993, the General Assembly invited “member states and other interested parties to make voluntary contributions to the international tribunal both in cash and in the form of services as supplies”.720 The option of financing through voluntary contributions opened the door not only to the increased use of donations and reception of additional means by the OTP but more importantly it

2003; Second Performance Report of the International Criminal Tribunal for Rwanda (ICTR) for the Biennium 2002-2003,” November 19, 2003. 717 United Nations, “A/59/561 - Financing of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 for the Biennium 2004-2005 ; Financing 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 for the Biennium 2004-2005: Biennial Budgeting at the Tribunals,” November 10, 2004, 8,9. 718 United Nations, “A/62/578 - Second Performance Reports for the Biennium 2006-2007 and Proposed Budgets for the Biennium 2008-2009 of the International Criminal Tribunal for Rwanda (ICTR) and of the International Tribunal for the Former Yugoslavia (ITY),” December 11, 2007. 719 United Nations, “Thirteenth 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 since 1991,” August 21, 2006.United Nations, “Fourteenth 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 since 1991” (ICTY, August 1, 2007). 720 United Nations, “A/RES/47/235 - Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991.”

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created the expectancy that the chief prosecutor would partake in fundraising activities in the same manner as other UN agencies. The budget process of United Nations is sourced by two different types of funding, assessed contributions by member states and voluntary contributions. The latter form is left to the discretion of each individual member state. Most UN humanitarian agencies (such as UNICEF, UNHRC, UNRWA, UNDP, etc.) are funded exclusively through voluntary contributions. In order to meet their mandates, humanitarian UN agencies engage in constant [and competing] fundraising.721 Fundraising methods used by the OTP-ICTY and other international and hybrid war crime tribunals have included 1) bilateral meetings between tribunal representatives and member states, 2) letters of appeal by the Secretary–General to donor states, 3) letter from their management committees, 4) pledging conferences, 5) lobbying multilateral institutions and 6) the use of briefings to the donor community.722 From 1993 until August 1999 the ICTY received contributions for US$ 17.5 million. In addition, the tribunal received donations of computers, legal assistance, translation services and supplies, library archives, telephone infrastructure, vehicles, interim courtroom construction, over 150 loans of personnel and seconded staff. Furthermore, over that period, the OTP received around 210 people from legal assistants to national experts as gratis personnel especially deployed for investigations connected to the Kosovo war.723 It is

721 Joint Inspection Unit. United Nations et al., “JIU/REP/2007/1. Voluntary Contributions in United Nations System Organizations. Impact on Programme Delivery and Resource Mobilization Strategies” (Geneva, 2007), 2–4, https://www.unjiu.org/en/reports- notes/archive/JIU_REP_2007_1_English.pdf. 722 Wierda and Triolo, “Resources,” 154. 723 United Nations, “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 Since 1991.,” 47.United Nations, “Second 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 Since 1991.” (ICTY, August 23, 1995), 29.United Nations, “Third 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 Since 1991.,” 45–46. United Nations, “Fourth Annual Report of The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” 38–41. United Nations, “Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” 57– 59.United Nations, “Sixth Annual Report of the International Tribunal for the Prosecution of 174

observable from the annual reports that from 1999 onwards the contributions and donations were not only deployed for non-core activities but increasingly extra- budgetary resources supported core functions in the OTP. In 2000, the Coordination Council of the ICTY decided to establish a Voluntary Contribution Coordination committee (VCCC) to “ensure a Tribunal-wide approach towards donations and to improve the coordination of voluntary contributions and fund-raising within the International Tribunal” 724 the tasks included the “raising, distributing and evaluating grants”.725 Between the years 2000 and 2007, the ICTY received US$ 26 million.726 The contributions included support for temporary posts and supplies to analyse evidence, provide translations and online databases, the purchase of IT equipment and vehicles, provision of mobile communications, TV monitors and satellite link support. More importantly, the OTP was particularly benefited with 483 gratis personnel, including political officers in the field, support of arrest activities and aid in military analysis. The donations were used to investigate war crimes committed in Kosovo and to support the evidence unit, NATO’s contribution was employed for the hiring of investigative teams (in Macedonia) and to complete short-term forensic examinations in Macedonia and Bosnia.727

Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” 47–49. 724 The Coordination Council is composed of the President, the Prosecutor and the Registrar. VCCC is composed by the Deputy Registrar and includes representatives from each of the three organs of the ICTY. United Nations, “Eighth 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 since 1991” (ICTY, August 13, 2001), para. 247. 725 United Nations, “Tenth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” para. 292. 726 United Nations, “Fourteenth 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 since 1991,” para. 116. 727 United Nations, “Seventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991,” 37–39.United Nations, “Eighth 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 since 1991,” 40–41.United Nations, “Ninth 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 Since 1991.” (ICTY, 175

In a study including all the OTP’s tenures, Roper and Barria have observed that tribunal contributions fit within the general pattern of donor foreign assistance and as such “tribunal funding is simply another form of aid … therefore, tribunals must compete with other assistance categories to obtain resources necessary to apprehend, to try and to deliver justice”.728 Although the Registrar is usually the focal point for fundraising, in the context of the ICTY, through all the tenures the OTP chief prosecutor played a central role in obtaining additional resources and funding. The success in productivity was demonstrated in the issuing of indictments and the attainment of arrests. The tribunals, and organs such as the OTP “had to be very savvy by ‘marketing’ themselves, through the production of materials, visual materials, and funding proposals attractive to states and donors alike”.729 As Del Ponte stated in a talk at Goldman Sachs, “international justice is cheap. The yearly cost of the Tribunal is less than one day of US military presence in Iraq. Let me dare another risky comparison: Our annual budget is well under 10 per cent of Goldman Sachs’ profit during the last quarter. See, I can offer you high dividends for a low investment.”730

September 4, 2002), 45–46. United Nations, “Tenth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law Committed in the Territory of the Former Yugoslavia since 1991,” 62–65.United Nations, “Eleventh 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 Since 1991.” (ICTY, August 16, 2004), 79–80. United Nations, “Twelfth 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 Since 1991.” (ICTY, August 17, 2005), 40–41.United Nations, “Thirteenth 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 since 1991,” 25. 728 This research included the ICTY, ICTR, SCSL and ECCC. Steven D. Roper and Lilian A. Barria, “Donor Motivations and Contributions to War Crimes Tribunals,” Journal of Conflict Resolution 51 (2007): 300. 729 Wierda and Triolo, “Resources,” 155. 730 Carla Del Ponte, “The Dividends of International Criminal Justice” (Goldman Sachs London, October 6, 2005), http://icty.org/x/file/Press/PR_attachments/cdp-goldmansachs- 050610-e.htm.

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4.2.2 Reconfiguration of the indictment policy I

The Fifth Committee and ACABQ intertwined with the indictment policy of the OTP through two distinctive configurations: firstly, by requiring ICTY and OTP officials to provide managerial reports to substantiate funding, (which were imbedded in policy-practice bureaucracy) and secondly by compelling the measurement of the effectiveness of OTP (and ICTY) through the use of performance indicators. Below I will review indictment policy through both accounts.731

4.2.2.1 Bureaucratic frameworks

ACABQ’s reports and the UN resolutions of ‘financing’, ‘budget’ ‘and assessment’ can be viewed not only as soft-law mechanisms for the transmission of financial endorsement but moreover these decisions can be weighed from the perspective of (institutional and bureaucratic) control over the OTP expenses. The obligation of a constant reporting is ‘managerial’ in two ways, firstly, to the extent that it is both “guided and circumscribed by a hierarchy of position and their associated levels of responsibility”, from the OTP to the UN Secretary- General, or from the Fifth Committee or ACABQ back to the OTP.732 Secondly, managerial control is also evident through a “hierarchy of rules ranging from broad policy to specific operating procedures” such as article 32 ICTY statute which is made operational through the subsequent and strict policies of

731 The section concerning bureaucratic frameworks has been influenced by the work of Colin Hales, Kregg Hetherington and Matthew Hull. See particularly, Colin Hales, “‘Bureaucracy– lite’ and Continuities in Managerial Work,” British Journal of Management 13 (2002): 51–66. Matthew Hull, “Government of Paper: The Materiality of Bureaucracy in Urban Pakistan” (Berkeley: University of California Press, 2012). My interpretation of the use of indicators draws extensively on my participation at the conference “A World of Indicators: Knowledge Technologies of Regulation, Domination. Experimentation and Critique in an Interconnected World” held at the MPI for Social Anthropology in October 2011, and the work of Sally Engle Merry and Richard Rottenburg. See especially, Kevin Davis, Benedict Kingsbury, and Sally Engle Merry, “The Local-Global Life of Indicators: Law: Power, and Resistance,” in “The Quiet Power of Indicators: Measuring Governance, Corruption, and Rule of Law, ” ed. Sally Engle Merry, Benedict Kingsbury, and Kevin Davis (New York, NY: Cambridge University Press, 2015), 1–24. Richard Rottenburg et al., eds., “The World of Indicators: The Making of Governmental Knowledge through Quantification” (Cambridge; New York: Cambridge University Press, 2015). 732 Hales, “‘Bureaucracy–lite’ and Continuities in Managerial Work,” 53.

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‘management efficiency’ and the ‘exit strategy’ implemented in Del Ponte’s tenure. Both ‘hierarchy of positions’ and the grading of ‘soft-law (regulations)’ operate alongside or in tandem with OTP indictment policy. The point is to conceive that in being managerial, these budgetary practices for financing relied upon a “hierarchy and rules per se, as mechanisms of coordination and control”.733 The imposition of administrative “regulations” from the fifth Committee and ACABQ in being performed through a bureaucratic outfit are configured as a normative structure whose input and deliberations are situated beyond the control and possibility of contestations by the OTP. Yet, each budgetary report, expert opinion or assessment decision taken in the UN forum, was concerned with the allocation of funds and therefore affected profoundly the OTP capacity to carry out its day-to-day activities, including employing staff, distributing internal resources and securing the necessary reserves for field investigations to collect evidence.

“Rules are transmitted and enforced through the system of ranked authority, super and subordinate relationships and vertical reporting relationships that constitutes the hierarchy which operates as both a form of vertical division of labour and a ‘chain of command’ and which is itself rule governed”.734

This rendered legal officials such as the OTP prosecutor “constrained by both bounded defined responsibilities which are arranged hierarchically and by procedures which are transmitted and monitoring hierarchically”.735

Bureaucratic soft-law is characteristic in the sense that these types of rules and regulations are under the interpretation of the administrative bodies that enact them. Therefore, their objective, aim, or ‘final achievement’ is always in deferral so that their accomplishment is subjected to the subsequent ‘budgetary report’ on last year’s ‘effective use of resources’ – in the words of Hoag, “masking the

733 Ibid. For Hales, bureaucracy is defined by the transmission of the hierarchy of rules and not their specific form or extent. 734 Ibid. 735 Ibid., 52.

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exercise of power in the guise of an always emergent – but never attained – perfect order”.736

During the time Goldstone headed the OTP, indictment-policy considerations were tied up with the lack of permanent and reliable funding. Goldstone’s assessment of the instrumentality of Nikolić’s and Tadić’s cases to ‘win the fight’ against the fifth committee and ACABQ show the positioning of the OTP in a constant process of validation.

Bureaucratic organizations like the UN are forms of design for collective action in the sense that its format allows for the alignment of efforts of a large number of people ‘so that they act like one’. But paradoxically, the appliance by which this takes place is through a clear-cut individualization of action, this is to say “defining appropriate actions for individuals and identifying them with particular acts.”737 This is the explanation by which in order to demonstrate the tribunal’s financial worth, Goldstone (in his personal position as OTP chief prosecutor) had to break through the tag of ‘unnecessary expenditures’ linking the tribunal achievements to the issuing of indictments.

His indictment policy represents to that degree a correspondence between a bureaucratic order and the responsibility to comply with these authoritative normative mandates to allow the OTP (and the tribunal) to continue.

4.2.2.2 Performance indicators

The incorporation of performance indicators by ACABQ suggests two important traits, primarily, indicators worked to include a normative criterion that linked 1) criminal ‘productivity’ with the allocation of resources and 2) indicators had a concrete impact in internal structure of the OTP and the chosen of strategies of the prosecutor to perform. As framed by Davis, Kingsbury, and Merry, “an indicator is a named collection of rank-ordered data that purports to represent the past or projected performance of different units. The data are generated through a process that simplifies raw data about a complex social phenomenon. The data, in this simplified and processed form, are capable of being used to compare particular units of analysis

736 Colin Hoag, “Assembling Partial Perspectives: Thoughts on the Anthropology of Bureaucracy,” PoLAR: Political and Legal Anthropology Review 34, no. 1 (May 1, 2011): 82. 737 Hull, “Government of Paper”, 129.

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… synchronically or over time, and to evaluate their performance by reference to one or more standards.”738 For both Arbour and Del Ponte, the measurement of performance was narrowed down to financial considerations of ‘effectiveness’. This is partly explained by the form in which the OTP and the ICTY in general were perceived by UN member states. Financially, the tribunal was treated to great extent as a UN humanitarian agency so that in requiring that its organs ‘quantify their accomplishments’ it was expected that the OTP (together with other organs) provide the core of their ‘evidence-based’ funding.739 The way in which power interlinks with indicators is that their numerical value forms the basis for decision-making and the terms in which certain problems and solutions are considered, imagined and conceptualized accordingly. As such, indicators shift the power dynamics of decision-making.740 Drawing from the work of Davis, Kingsbury, and Merry, it can be argued that indicators can be studied from the four-way trajectory: 1) Conceptualization; 2) Production; 3) Use, and 4) Effect and impact.741 Below, I will describe these four categorizations in relation to the indictment policy of Arbour and Del Ponte as this will make it possible to show how power shifts.

1) Conceptualization

This phase corresponds to the choosing of the indicator and its underlying theory for social change or improvement. The development of a category for measurement builds on a notion of what “constitutes a problem or pathology to overcome” in the course of a polity. It provides a series of measures “to attain the good described in the organizing principle” therefore translating broad standards into specific actions. This specification may incidentally expand the obligations

738 Davis, Kingsbury, and Merry, “The Local-Global Life of Indicators: Law: Power, and Resistance,” 4. 739 Sally Engle Merry, “Measuring the World: Indicators, Human Rights, and Global Governance,” Current Anthropology 52, no. 3 (April 2011): p. 84. 740 Ibid., p. 85. 741 Davis, Kingsbury, and Merry, “The Local-Global Life of Indicators: Law: Power, and Resistance.”

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of the recipient as new measurements are created “to operationalize standards that extend beyond the initial standard”.742

ACABQ introduced ‘performance results of workload indicators’ (PRWI) with the aim of formulating a base for the tribunal budgetary estimates and their workload projections. The collections of the indicators themselves are obtained from ‘project managers’ at the various tribunals units.743

What is symptomatic of the use of PRWI as an indicator is that its measurement is correlated in connection to whether or not a planned project activity was fully implemented. This form of standardization lacks the capacity to account for the specificity of the tribunal activities. This is especially visible in the context of OTP’s indictment policy, where contextual peculiarities included undertaking investigations in post war zones, the lack of cooperation and compliance by states and other international organizations, selective handling of intelligence information or the incapacity to secure data to substantiate indictments.

2) Production

At this stage, the conceptualization of the indicator is coupled to available or created data whereby modes of presenting the information “are tailored to the imagined prospective users”. The frame of measurement is always constructed in relation to the personnel responsible for evaluating the data and therefore the ‘adequate performance’.744 This is visible for instance in the ACABQ opinion concerning the need of the OTP and the tribunal at large to obtain cooperation from regional actors. “The expenditure on public relations and information, although valuable, should be monitored and kept to a minimum. Care should also be taken to ensure that such activities do not adversely affect the efficiency … in dealing expeditiously with the cases”.745

742 Ibid., 10–11. 743 United Nations, “A/53/651 - Revised Budget Estimates for 1998 and Proposed Requirements for 1999 of the International Tribunal for the Former Yugoslavia (ICTY).” 744 Davis, Kingsbury, and Merry, “The Local-Global Life of Indicators: Law: Power, and Resistance,” 12–13. 745 United Nations, “A/53/651 - Revised Budget Estimates for 1998 and Proposed Requirements for 1999 of the International Tribunal for the Former Yugoslavia (ICTY).”

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For the OTP this implied reporting in the form of vacancy rates, the increase or decrease in service posts, temporary assistance and complex organizational charts. When ACABQ was not convinced of the adequate correlation between the indicator and the assumed rate, they labelled the requested OTP amount as over- budgeting, implying a reduction or denial of the sum requested.

3) Use

Here the indicator is treated as a source of knowledge. It forms the background to ground conclusions and provides the basis for decision and action.746

PRWI was considered by ACABQ as the primary reference to decide on the allocation of further allowances and staff. Albeit the expenditures of Del Ponte increased tremendously after the completion strategy was enacted, ACABQ imposed additional budgetary constraints. The OTP responded with the creation of an indictee priority ‘A’ and ‘B’ list in order to speed up the exit strategy.

4) Effect and impact

The indicators signalled the capacity of ACABQ and the Fifth Committee to influence OTP policy-decision making through a constant requirement to submit budget proposals that could potentially be rejected, reduced or postponed, as in the case of the 2005 OTP investigation division budget that led to an eight-month recruitment freeze.

Precisely because indicators replace “judgments on the basis of value or politics with apparently more rational decision making”747 they affect the possibility of contestation of the data gathered through statistical devices. In the tenures of Arbour and Del Ponte, the observable outcomes of PRWI as a performance indicator is the standardization of the procedure of evaluating OTP effectiveness primarily in connection with successful completion (which also included the increase in plea bargaining and the transferral of cases to domestic jurisdictions), the effect PRWI had in connection with indictment policy is that “productivity”

746 Davis, Kingsbury, and Merry, “The Local-Global Life of Indicators: Law: Power, and Resistance,” 15. 747 Merry, “Measuring the World: Indicators, Human Rights, and Global Governance,” 85. 182

and “accomplishment” were tied up with the reduction of costs and the subsequent decisions to stop investigations and the issuing of new indictments.

4.2.3 Peace building regulation: United Nations Interim Administration Mission in Kosovo (UNMIK)

International protectorates are a form of international administrative bodies that in contrast to other types of peace building operations have an extensive authority “over the territories which they administer. International administrations take over the governance of a country. … They combine the state-and-nation-building programs of regular peace building, with the political power normally reserved for sovereign states”.748

From the beginning of the OTP operations, its work had been coloured by the diplomatic efforts of peace building operations to manage the war in Bosnia Herzegovina and avoid its expansion to other Balkan regions. A particular challenge was the relationship between the OTP and international protectorates such as United Nations Interim Mission in Kosovo (UNIMK).

Article 29 ICTY statute wording on cooperation and judicial assistant is state- centric in that at least textually it was only intended for states. In practical terms, UNMIK (as other ‘international organization’ actors) positioned itself in a horizontal legal relationship vis-à-vis the OTP, in contrast to a vertical and therefore binding relation. This created a parallel regime of ‘self-government’ and non-legality.749

748 Niels Van Willigen, “Peacebuilding and International Administration: The Cases of Bosnia and Herzegovina and Kosovo” (Milton Park, Abingdon, Oxon: Routledge, 2013), 1. 749 Article 29 Co-operation and judicial assistance 1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law. 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (a) the identification and location of persons; (b) the taking of testimony and the production of evidence; (c) the service of documents; (d) the arrest or detention of persons; (e) the surrender or the transfer of the accused to the International Tribunal. ICTY, Statute of the International Criminal Tribunal of the Former Yugoslavia. Further, Lamont, “ International Criminal Justice and the Politics of Compliance, ” 160–61.

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Addressing the Security Council in June 1996, Del Ponte stated “It is also worrying that a sister organization of the Tribunal, the UN Mission in Kosovo, refuses to co-operate fully with the Tribunal. My office has nowadays more difficulties to access documents belonging to UNMIK than in any other place in the former Yugoslavia. Furthermore, the UNMIK leadership is encouraging a climate which deters witnesses from talking to my investigators when it comes to the Albanian perpetrators.”750 However, the relationship between the OTP and UNMIK was on good terms when Arbour was investigating the role of Serb leadership just after NATO intervention in Kosovo in 1999. UNMIK was not only cooperative but helped to secure the information to substantiate indictments. “UNMIK has closely cooperated with ICTY and provided support for its activities. ICTY is engaged in the collection of evidence, including the processing of crime scenes sites throughout Kosovo, to support existing and new indictments. New sites are being discovered almost daily and are being secured by KFOR until they can be documented. By 1 July 1999, over 150 crime scene sites had been reported by KFOR”.751 UNMIK represents a domain operating under a multiplicity of institutional ‘norms’ and regulations guided by the organizing principles of the peace builders in Kosovo. In this respect, it can be viewed as a space of normativity beyond the reach of OTP mandates and yet profoundly interlinked to it. Contributing (positively or negatively) in securing and providing information and therefore influencing the indictment policy.

4.2.3.1 Solidify bureaucracy

UNMIK was created in June 1999 through Security Council resolution 1244, in order to promote the establishment of “substantial autonomy and self-government in Kosovo”. According to its mandate, its composition demanded “full cooperation by all concerned, including the international security presence, with the international tribunal for the Former Yugoslavia”.752 In this regard, the resolution did not have additional clauses with sanction regimes or enforced

750 ICTY, “Statement by Tribunal’s Prosecutor Carla Del Ponte to the Security Council,” June 7, 2006, http://www.icty.org/x/file/Press/PR_attachments/p1085e-annex.htm. 751 United Nations. Security Council, S/1999/779 - “Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo, ” 1999, para. 28. 752 United Nations. Security Council, UN Security Council Resolution S/RES/1244.

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compliance, because members of the Security Council deemed further references to the ICTY as derailing the chances of a negotiated settlement.753

The orthodoxy of peace building operations in the form of international protectorates divides the labour between ‘soft’ and ‘tough’ set-ups in order to subcontract coalitions. ‘Soft’ peacekeeping roles are preferably left to the UN while ‘tough’ roles are allocated to actors such as the European Union, NATO, or OSCE. In this scheme, international financial institutions like the World Bank assume other capacities that include macro-economic conditionalities and the distribution of corporate funding.754

The interesting aspect of Kosovo is that remained de iure part of the State Union of Serbia and Montenegro but under sovereign control of UNMIK, which removed the state as the subject of international legal obligations. As such, UNMIK was the sole sovereign authority in Kosovo.755 This permitted UNMIK to situate itself afar state obligations but under the normative framework of the UN Security Council.

Thus, the UNMIK was mandated to administer officially the executive, legislative and judicative function of the territory and to establish democratic institutions. “Lacking the political guidance for the amount of authority an ‘interim administration’ would have, the UNMIK set up a system of government with reference to a set of ‘international norms and standards’.”756

Consequently, UNMIK dismantled all Albanian pre-war governing structures including the Democratic League of Kosovo (LDK) led by Ibrahim Rugova, which had effectively governed ethnic Albanian communities in the province from 1989-1999.757

753 Williams and Scharf, “Peace with Justice?”, 208. 754Michael Pugh, “Peacekeeping and Critical Theory,” International Peacekeeping 11, no. 1 (2004): 39–58. United Nations. Security Council, “Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” March 13, 2001, paras. 51, 52. 755 Lamont, “International Criminal Justice and the Politics of Compliance, ” 139–40. 756 Lisa Gross, “The Journey From Global to Local: Norm Promotion, Contestation and Localisation in Post-War Kosovo,” Journal of International Relations and Development 18, no. 3 (July 2015): 314. 757 Lamont, “International Criminal Justice and the Politics of Compliance, ” 144–46.

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UNMIK strategy was to include five phases for the consolidation of democracy and liberal economy in Kosovo. The first period focused on the establishment and consolidation of UNMIK’s authority and the UNMIK administrative structures including liaison with KFOR and all areas of economic recovery. A second stage was the administration of social services and utilities comprising the consolidation of the rule of law and the assistance in the formation of political party structures. The third phase was to include the preparation for elections for the establishment of the Kosovo Transitional authority, i.e. UNMIK-managed voter registration, electoral training, and ballot-counting. After the election, in the fourth phase UNMIK was due to assist the elected Kosovo representatives in the establishment of provisional institutions for democratic government. The final stage was left open to external UN decision-making.758

UNMIK was headed by a special representative of the UN Secretary-General appointed in consultation with the Security Council. UNMIK covered a broad range of activities divided in four administrative pillars in coordination with other organizations: 1) Police and Justice (United Nations); 2) Civil Administration and humanitarian affairs (United Nations – High Commissioner for Refugees); 3) Democratization and institution building (OSCE); 4) Reconstruction and Economic Development (European Union).759

The correlation of broad-spectrum undertakings with ‘strategic partnerships’ paired with other international agencies reinforced an “integrated, centralized and unaccountable basis of finance, firepower, knowledge and industry” beyond the reach of local (and peer) accountability. As Pugh observed, this model solidifies UN bureaucracy and institutionalization from which UNMIK could override local political structures and any conflict with the OTP.760

4.2.3.2 Legislative soft-law

UNMIK had the power to issue legislative acts (regulations) and implementation acts (administrative directions) as stated in its first decision “All legislative and

758 United Nations. Security Council, S/1999/779 - “Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo, ” 21–22. 759 United Nations. Security Council, S/1999/672 - “Report of the Secretary General Pursuant to Paragraph 10 of Security Council Resolution 1244, ” 1999. 760 Michael Pugh, “The Problem Solving and Critical Paradigms,” in “Routledge Handbook of Peacebuilding, ” ed. Roger Mac Ginty (New York, NY: Taylor & Francis Ltd, 2013), 15.

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executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary General”.761 In 2001, UNMIK approved a provisional constitutional framework762 largely based on the idea of integration between the provisional administration and the political community bases “The security problem in Kosovo is largely a result of the absence of law and order institutions and agencies … The most important confidence-building mechanism in the medium term will be the involvement, on a consultative basis, of political leaders of all communities in the decision-making processes of UNMIK”.763 This included the establishment of provisional institutions of self-government (PISG) with a legislative body, namely, the Kosovo Assembly. However, under the constitutional framework, any legislation approved by Kosovo’s provisional institutions needed to be promulgated by the UN special representative in order to become effective. This permitted UNMIK to check compatibility of a particular law with the UN Security Council Resolution 1244 on the constitutional framework and “international standards”.764 After the first post-conflict election in 2001, local political parties heavily criticized UNMIK due to its ‘reserve powers’. There was no Kosovar institution that could potentially challenge the authority of UNMIK. Furthermore, UNMIK was only politically accountable to the UN Security Council.765 In 2003, the Kosovo assembly created the “commission for cooperation” with the ICTY and passed a law on cooperation that established a dual obligation for local authorities and UNMIK to assist the tribunal.766 Nonetheless, as observed by Lamont, the framework created by UNMIK made impossible for Kosovo’s self-

761 UNMIK, UNMIK/REG/1999/1. “On the Authority of the Interim Administration in Kosovo, ” 1999. 762 UNMIK, UNMIK/REG/2001/9. “On a Constitutional Framework for Provisional Self- Government in Kosovo, ” 2001, http://www.unmikonline.org/regulations/2001/reg09-01.htm. 763 United Nations. Security Council, S/1999/779 - “Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” para. 6,7. 764 Van Willigen, “Peacebuilding and International Administration,” chap. 4. 765 Ibid. 766 United Nations. Security Council, “S/2003/675 - Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” June 26, 2003, para. 3.

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governing institutions to have the legal capacity to independently respond to OTP’s requests or orders without assent from UNMIK.767 UNMIK decision-making presented in the form of regulations and administrative acts were to remain in force until it was amended by UNMIK itself or superseded after the status of Kosovo had been ‘clarified’ by international actors. In November 2003, the State members of the Contact Group launched a review mechanism in Kosovo under the auspices of UNMIK. The aim was to implement the policy of ‘standards before status’, a progression procedure to evaluate the provisional institutions of self-government in Kosovo and its achievements in the region. In this context, the Security Council promoted the Standards for Kosovo, a document that incorporated eight standards to ‘measure’ the development of Kosovo in terms of eight broad criteria: functioning institutions, rule of law, freedom of movement, returns and reintegration, economy, property rights, dialogue with Belgrade and the Kosovo Protection Corps.768 Under the ‘rule of law’ heading the standard states “No one is above the law” it includes the points “There is full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), including arrest of indictees and provision of witnesses and information.” And “Those war crimes not addressed by the ICTY are prosecuted fairly in Kosovo”.”769 The obligation however was regarded exclusively as regulating the provisional institutions of self-government of Kosovo (PISG) and its political parties. The subsequent endorsement of the ‘Standard Implementation Plan’ reformulated the ‘rule of law’ guideline and gave both UNMIK and PSIG the responsibility to fully support activities and requests made by the ICTY.770 The standard was a policy device with the aim of re-building the rule of law to accomplish ‘multi-ethnicity’ in Kosovo as declared by the SC: “The establishment of a multi-ethnic, tolerant, democratic society in a stable Kosovo remains the fundamental objective of the international community in implementing Security

767 Lamont, “International Criminal Justice and the Politics of Compliance, ” 150. 768 United Nations General Assembly, “Standards for Kosovo.” 769 Ibid. 770 United Nations. Security Council, “Kosovo Standards Implementation Plan,” December 10,2003, http://operationkosovo.kentlaw.edu/symposium/resources/KSIP%20final%20draft%2031%20 March%202004b.htm. United Nations. Security Council, “S/PRST/2004/13. Statement by the President of the Security Council,” April 30, 2004.

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Council Resolution 1244 (1999). The Security Council will closely monitor the implementation by the parties of their obligations according to the ‘Standards for Kosovo’ document.”771

4.2.3.3 UNMIK vs. The Office of the Prosecutor

By 2002, Del Ponte decided to start investigations into the chain of command of KLA. States who had supported the KLA military through NATO’s air campaign in 1999 were reluctant to provide information to the OTP. In April 2002, Del Ponte had meetings with KFOR and UNMIK seeking to obtain information on the KLA’s command structures but she could not acquire intelligence data without going through NATO.772 In 2003, Del Ponte sent sealed indictments to UNMIK and KFOR requesting the subsequent arrests of Haradin Bala, Fatmir Limaj, Isak Musliu and Agim Murtezi. All four were charged with the intimidation, imprisonment, violence and murder of Serb civilians who refused to cooperate with KLA in early 1998.773 Bala, Musliu and Murtezi were arrested a few weeks after the OTP communicated with UNMIK. However, two weeks after his indictment was transmitted to the UN authorities in Kosovo, Limaj, who at that time was the leader of the Democratic Party of Kosovo (PDK) and member of the parliamentary delegation, was allowed to travel to Slovenia for a skiing holiday with political leader, Hashim Thaçi.774 In a statement issued in Montenegro, Del Ponte publicly accused KFOR and UNMIK of having avoided the arrest of Limaj: “He was not on the run, he was not in hiding, he simply booked the flight ticket and like any ordinary citizen he was allowed to board this flight,.… It was that simple. And it is outrageous”.775

771 United Nations. Security Council, “S/PRST/2004/5. Statement by the President of the Security Council,” March 18, 2004. 772 Del Ponte and Sudetic, “Madame Prosecutor”, 283–284. 773 Lamont, “International Criminal Justice and the Politics of Compliance”, 151–152. Del Ponte and Sudetic, “Madame Prosecutor”, 285–86. 774 Lamont, “International Criminal Justice and the Politics of Compliance”, 151–152. 775 BBC, “Kosovo Suspects Taken to The Hague,” BBC, February 18, 2003, sec. Europe, http://news.bbc.co.uk/2/hi/europe/2773773.stm.

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The relationship between the OTP and UNMIK deteriorated further after a riot incident in March 2004. The SC invested UNMIK and KFOR to take additional measures to stabilize the situation throughout Kosovo in cooperation with PISG. 776 For that purpose, UNMIK’s newly appointed head, Søren Jenssen, was interested in forging ties with local Albanian leaders to control the violence in the province and diplomatic efforts were focused primarily on the future status of Kosovo.777 UNMIK was increasingly dependent on the continued support of the local population to meet its administrative mandate and to police the area. The relationship became deeper after the Kosovo Assembly elected Rasmush Haradinaj as the head of the political party Alliance for the future of Kosovo (AAK) in October 2004. The liaison between UNMIK and AAK was used for the implementation of the ‘standards for Kosovo’ with the vision of settling the status of the province. The UNMIK representative was responsible for providing a technical assessment of the progress in terms of the ‘standards for Kosovo’. In February 2005, the UN Secretary General reported:

The transition from the successful elections held in October to the installation of the new coalition Government, headed by the Prime Minister of Kosovo, Rasmush Haradinaj, after only one month of negotiation among Kosovo’s political forces, evidenced growing political maturity … The coalition agreement was concluded smoothly and in a fully democratic manner. Further signs of political maturity have been evident in Kosovo Assembly, which has functioned in accordance with the Constitutional Framework and its provisional rules of procedure, and largely without procedural violations.” and later “My special Representative and the Prime Minister have prioritized those actions within the standards most affecting minority communities, including elements from every area that will consolidate multi-ethnicity in Kosovo. The approach adopted by the

776 United Nations. Security Council, “S/PRST/2004/5. Statement by the President of the Security Council.” 777 Del Ponte and Sudetic, “Madame Prosecutor”, 291.

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Prime Minister towards the standards have been of central importance, including confirming his support for prioritized actions within the standards and immediately directing major resources of the Provisional Institutions towards implementation and self-monitoring.778

One month afterwards, in March 2005 a confirmed indictment was made public against Haradinaj, together with other KLA commanders and general staff. The indictment alleged that in April 1998, KLA forces mounted a military campaign to drive Serb and Roma civilians out of the Dukagjin operational zone. Civilians who remained in KLA controlled zones had been executed.779

Søren Jessen-Petersen publicly supported Haradinaj “It is important that we all remain calm and dignify during these difficult days”. As recalled by Del Ponte, the accused flew to the Netherlands in a German private airplane, and Haradinaj was greeted by an honour guard in Germany during his stopover. In April, Haradinaj was freed on provisional release due to the support of high-ranking international politicians, military officials and diplomats, which included a former KFOR commander “[he] is a man in whom I trust wholeheartedly and whose advice I sought actively”. UNMIK even provided the guarantees to the court in order to ensure Haradinaj’s compliance with the conditions of his release.780

Haradinaj actively participated in the administration of his political party when Del Ponte received allegations of witness intimidation against him. UNMIK transmitted a report to the trial chamber indicating the positive effects of Haradinaj’s involvement in public political activities and upcoming negotiations for the final status of Kosovo.781 Furthermore, the UN Secretary-General Report stated as a key achievement, Haradinaj’s record of cooperation with the OTP. In November 2005, the Kosovo Assembly unanimously adopted a resolution

778 United Nations. Security Council, “S/2005/88 - Report of the Secretary–General on the United Nations Interim Mission in Kosovo,” February 14, 2005, paras. 3–4. 779 ICTY, IT-04-84-I. Prosecutor v. Haradinaj, Balaj & Brahimaj - Indictment (2005). 780 Quoted in Del Ponte and Sudetic, “Madame Prosecutor”, 296. 781 Ibid., 297.

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reconfirming the will for Kosovo’s independence including a mandate for the future status process.782

The working relationship between the OTP and UNMIK worsened for the remaining tenure of Del Ponte:

In Kosovo as well, my Office encounters difficulties in accessing documents from UNMIK. They are at times redacted or delivered in such a way that they cannot be used in court. The co-operation provided by UNMIK in the protection of witnesses has also been sometimes less than optimal. Furthermore, my Office is not convinced that UNMIK is properly exerting its control over the conditions set by the Chambers for Haradinaj’s provisional release.783

Despite these allegations, a month later the UN Secretary–General stated the full cooperation of UNMIK with the Tribunal and the legal cooperation with other jurisdictions.784 No subsequent reports from UNMIK or the UN Secretariat dealt with Del Ponte’s severe allegations of lack of compliance; neither mentioned the cooperation between UNMIK and the OTP.785

782 United Nations. Security Council, “S/2005/335 - Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,” May 23, 2005, para. 17. United Nations. Security Council, “S/2006/45 - Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,” January 25, 2006, para. 4. 783 ICTY, “Address by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia to the Security Council,” December 15, 2005, http://www.icty.org/x/file/Press/PR_attachments/051215_PR1038e.pdf. 784 United Nations. Security Council, “S/2006/45 - Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo,” annex I, para. 38. 785 United Nations. Security Council, “S/2006/361 - Report of the Secretary General on the United Nations Interim Administration Mission in Kosovo,” June 5, 2006.United Nations. Security Council, “S/2006/906 - Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” November 20, 2006.United Nations. Security Council, “S/2007/134 - Report of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” March 9, 2007.United Nations. Security Council, “S/2007/582 - “Report 192

4.2.4 Reconfiguration of the indictment policy II: Soft-law

The encounter between UNMIK and the OTP signals three points: firstly, as discussed in the introduction, the framework of public international law is primarily state-centric, to the extent that it is mainly states who are obliged under public international law and who get credited or earn demerits for complying with or breaking international rules. When non-state actors enter the international arena they still rely on a state-centric social field. Therefore, when the OTP tried to obtain collaboration from UNMIK and compliance with OTP orders there was no formal mechanism to obtain results. In practical terms “the politics of international law centre on claims about compliance or non-compliance, and non- state actors are not in a position to comply or violate.”786

Non–state actors also construct and use international legal arguments. UNMIK protectorate based its system of governance on the blueprint of conforming to ‘international norms and standards’. In the same vein, the constitutional framework it enacted for the Kosovo province was alleged to regulate the harmonization of administrative rules approved by PISG to the Security Council regulation 1244 and the implementation of the ‘rule of law’. UNMIK built a non- legal structure out of international norms to shape the behaviour of Kosovo representatives, while declaring ‘full cooperation’ with the OTP.

Soft-law rules formed by the UNMIK personnel during the implementation process are conceived in interaction with the target groups (PSIG) laying down behavioural demands for the implementation of the standards. As exemplified by UNMIK, these regulations relied on a fragmented form of decision-making and diplomatic practices whereby there is a “constant stream of claims regarding compliance”. Simultaneously, there are references to law and lawfulness regarding non-state practices (such as the implementation process).

The ‘Standards for Kosovo’ have two different meanings in relation to policy. Primarily, the standards were enacted as a planning instrument, but the regulations were also deployed as an implementing tool. As such, the functioning not only referred to the ruling of social processes for implementation [which in practice of the Secretary–General on the United Nations Interim Administration Mission in Kosovo,” September 28, 2007. 786 Ian Hurd, “International Law and the Politics of Diplomacy,” in “Diplomacy and the Making of World Politics., ” ed. Ole Jacob Sending, Vincent Pouliot, and Iver B. Neumann (Cambridge University Press, 2015), 41.

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included management systems, administrative procedures or operational directives] but more importantly the standards represent a form of power, because it also provided “the substantive criteria which are to be considered in the resolution of a [imagine] problem”.787

The OTP was supported by UNMIK during the first and second phases of the plan for the ‘consolidation of democracy,’ corresponding to the strengthening of UNMIK authority and administrative structure and successively, the consolidation of the rule of law. When the implementation process of the ‘standards’ advanced other phases of the implementation, these other policy considerations were given priority over OTP cooperation. There was no need for UNMIK to contest the allegations of the OTP because their primary mandate (firming local political parties, sustaining democratic elections and the constitution of liberal economy) were being implemented ‘successfully’.

Secondly, the characteristic of a peace building mission is that the revision over its functions and adequate implementation of self-approved soft-law regulations are left to the UNMIK director, who also acts as a UN Secretary–General representative. Consequently, although administrative regulations are enacted in consultancy with a variety of non-state actors under the UNMIK umbrella, the authoritative claim of these forms of soft-law derives from their being produced from a UN agency (a consensual body of sovereign member states).

UNMIK represents a complex frame of political actions that are discursively inserted into the UN System and international law and yet are concretely highly disintegrated and unruly. UNMIK subdivision into working pillars and broad political mandates charged to other international agencies makes UNMIK disguise the fact that the Standards for Kosovo and its Implementation Plan are a broad assembly of security, economic, social, and judicial concerns with no ‘general will’ or unity.788

787 Quoting Franz von Benda-Beckmann. Markus Weilenmann, “Project Law – Normative Orders of Bilateral Development Cooperation and Social Change: A Case Study from the German Agency for Technical Cooperation,” in “Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World,” ed. Franz Von Benda-Beckmann, Keebet von Benda- Beckmann, and Anne Griffiths, New edition (Aldershot, Hants., England ; Burlington, VT: Ashgate Pub Co, 2005), 158–159. 788 Further, Berit Bliesemann de Guevara and Florian P. Kühn, “The ‘International Community’ – Rhetoric or Reality? Tracing a Seemingly Well-Known Apparition,” Sicherheit Und Frieden 27, no. 2 (2009): 73–79.

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The setting of UNMIK by UN Security Council and the uses of the implementation standard can also be assimilated with regards to the observations made by Bliesemann. Terminologies used in international administration structures such as international community (but also ‘SC’ or ‘UN Assembly’) refer to a discursively formed group of agents who are interacting in the international political realm. As such, the terms have two characteristics: Primarily, a term is composed specifically in connection to a precise policy issue or political situation (as in the context of peace building in Kosovo) but it is at the same time unspecific in that its functions can change over time and differ from case to case.789 Cooperation and policy collide in a “multidimensional context and process, exhibiting changing constellations of material normative and temporal factors”.790

Consequently, when decisions are framed as following the elaboration of policies, then the outcomes can be justified in the context of the relational policy goals outlined in the “Mission statement”. This disguises the fact that international [and transnational] policies are always in the making, or under construction “as it moves from one place to another, from one site to another, from one level to another, it is revised, inflected, appropriated and bent in encounters of different kinds” which makes the location in which they are due to be implemented highly unstable.791

When Del Ponte sent an order to UNMIK to obtain cooperation and compliance, the OTP was engaging with a multiplicity of actors and the lack of practical hierarchical relationships among them.

Thirdly, in the context of the ‘Standards for Kosovo’, as Shore and Wright suggest, policies – and the (regulations that formed them) – function not only as a vehicle distancing policy authors from the intended objects of policy but they also provide legitimation. Policies outline the course of action to be taken and furthermore they serve to ‘fix’ that course within the framework of a wider and more universal set of goals and principles “upon which their policy decision was

789 Ibid. 790Rajkovic made this assessment in relation to a higher form of cohesion such a “State”. Nikolas M. Rajkovic, “The Limits of Consequentialism: ICTY Conditionality and (Non)Compliance in Post-Milosevic Serbia” 4, no. 1 (2008): 38. 791 Clarke et al., “Making Policy Move”, 11–15.

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putatively founded” (such as in UNMIK case the ‘rule of law’ and the ‘building of multi-ethnicity’ in Kosovo’).792

Selectivity The ‘lack of prosecution’ is also the result of complex soft-law principles, guidelines and expert rulings enacted to distribute funding in the form of bureaucratic framework conditionalities or performance indicators where UN policy preferences override OTP’s needs to secure staff and resources. The UNMIK example shows that the incapacity of the OTP to secure relevant information and cooperation is also connected with structural shortcomings that are characteristic of the UN administrative organisation over budget distribution and the hyper-regulation and distribution of tasks in international peace building.

Far from a situation of ‘utter lawlessness’, as Johns would call it, one finds that the jurisdictional space of non-legality that composes selectivity is filled with procedure, scrutiny, regulations and expertise. Administrative frameworks of UN, EU, UNMIK and SC interact and collide with OTP mandates and the aim for prosecution.

It has been observed that the hyper-specialization of international law into different regimes (e.g. security law, EU law, international administrative law) slices up international legal work into institutional projects that each caters for a different ethos and that “each such vocabulary is likely to highlight some solutions, some actors, some interests” while leaving other actors and interest behind. These are the inherent structural biases by which “patterns of fixed preferences are formed and operate inside international institutions”.793

The point is to consider that institutional biases are also important in the development of the operative capacities of the OTP. Everyday OTP actions aiming at fostering indictment policy engage in struggles, social interactions and ‘micro–operations’ with other regimes whose institutional biases preferences are predetermined.

792 Cris Shore and Susan Wright, “Policy. A New Field of Anthropology,” in Anthropology of Policy: Perspectives on Governance and Power, ed. Cris Shore and Susan Wright (Routledge, 2003), 9. 793 Martti Koskenniemi, “The Politics of International Law – 20 Years Later,” European Journal of International Law 20, no. 1 (February 1, 2009): 9–11.

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In examining the jurisdictional order of the OTP financing and UNMIK peace building, the overt dependency of the OTP on both external frameworks for carrying out routine legal tasks makes the OTP prone to intervention and (at least informally) to the shifting of the authoritative decision-making capacity from the OTP prosecutor to other areas of non-legal regimes (be these political, economic, administrative, etc.).

The particularity of soft-law regimes is that they are configured to provide the substantive criteria from resolution of policy ‘problems’. In that sense, the examples presented above manifest what Lang names ‘legibility’. They render visible the space over which they exercise authority “in order to make it amenable to specific, effective and directed interventions”794 these authoritative representations transmit a hierarchy of bureaucratic or expert ruling and in that way they ‘close off’ the spaces for participation and consultation. From this argument, selectivity appears constituted by an uncontested space of (soft-law) normativity.

4.3 Conclusions

In a crucial way, selectivity is always centred on the considerations of a ‘disrupted order’ that focus on legal norms “in a way that abstracts them from the concrete order of which they are part” which disguises the operations of normative inclusion and exclusion of outside and beyond the ‘place’ of ordering.795

The a priori ‘exclusion’ of external interventions which are deeply embedded in the way in which indictment policy is performed cut off any possibility to scrutinize the different domains by which economic, administrative and political considerations shape and co-produce every other ‘non-legal’ aspect of the work of the OTP, and therefore selectivity itself.

Non-legal regimes regulate behaviour within their domain of operation also helping to constitute the social domain in which they act.796 Structural biases are

794Quoting Rose. Andrew T. F. Lang, “Legal Regimes and Regimes of Knowledge: Governing Global Services Trade” (LSE Law, Society and Economy Working Papers 15/2009, 2009), 3, http://www.lse.ac.uk/collections/law/wps/WPS2009-15_Lang.pdf. 795 Lindhal, Hans, “Fault Lines of Globalization: Legal Order and the Politics of A-Legality”. 2013, Oxford, p 29. 796 Fleur Johns, “Financing as Governance,” Oxford Journal of Legal Studies, March 31, 2011.

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then formed by both internal and external operations whereby predetermined aims and preferred outcomes are hierarchically positioned. Indictment policies that rely on a variety of jurisdictional spaces (like economic regulations or international cooperation in international protectorates) are shaped by this multitude of preferences.

In understanding selectivity as a product of structural biases, it is useful to recall the previously discussed notion of radical indeterminacy applied to institutional settings. Institutions are heterogeneous places in which arguments, roles and professions are interlinked with law and non-law in contradictory arrangements. As Soaves writes concerning institutional regimes, these internal incoherencies are the result of endless struggles between its various components for the right to define “what constitutes the centre and periphery” of the regime itself. Hence, the boundaries of a field are never fixed, as their very definition lies at the core of the competition “within the field”.797

797 Tommaso Soave, “Structural Biases in International Adjudication,” 2014, 5–6, http://www.lse.ac.uk/collections/law/sociological/Tommaso%20Soave%20-%20Paper%20-% 20Sociological%20Inquiries%20into%20International%20Law.pdf.

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V. Selectivity and non-legality

Politics. I am confronted with a political context. I had to obtain the cooperation of States. In other words, whom I indicted was dependent on the help of the various governments. … It returns to politics, to history made by the victors … I always say to my successor, the opinion of the prosecutor is part of his discretion, but if governments do not help us we go nowhere. … The way is difficult, as things stand we are not independent from politics.798 – Carla Del Ponte

5.1 Introduction

With this chapter the study approaches the most abstract level of analysis: the relationship between selectivity and non-legality. It is at this level that we can best evaluate how selectivity is infused by non-legality practices. The chapter will provide a tentative theoretical proposal in addressing selectivity. As described in the introduction, selectivity is defined in this investigation as the body of institutional and structural bias, shaped by decision-making processes premised on power, that influences the production of an indictment. As such, selectivity is formed by a combination, conflation and collision of non-legality practices. This definition has three implications, firstly, that selectivity is made through systemic preferences in which certain positions are placed in a hierarchical level in reference to other possible options; secondly, that this making is done by concrete operators in the development of professional performances; and thirdly, that selectivity is the result of inherent systemic burdens that are present at the most fundamental level of each legal or non-legal regime.

798 Carla Del Ponte, “Cacciatrice di serpenti. Intervista a Carla Del Ponte”, Giangiacomo Feltrinelli (Ed.), April 2008. My translation, http://archivio.feltrinellieditore.it/FattiLibriInterna/IntervistaInterna?id_int=2281.

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The main argument of the chapter is that selectivity (within indictment policy practices) and non-legality are intertwined at two overlapping levels, the practice – level or decision-making stage and the systemic–level or regime friction. In order to explain the dynamics and functioning of non-legality at both levels, I will primarily define the connection between ‘international legal argument’ and legal regimes from three elements: sovereignty and the notions of rule and exception. For purposes of clarity I will first approach this relation from a Schmittian perspective to subsequently address these components from a CILT viewpoint. I will advance the perspective of selectivity from the practice and systemic level to subsequently address the notion of indeterminacy in the interrelationship between selectivity and non-legality.

5.2. International legal argument

5.2.1 Elements

5.2.1.1 Sovereignty

Broadly defined, from the perspective of international law, the power by an authority over regulation is conceptualized under the notion of sovereignty. Thus, the correspondence between sovereignty and authority implies that this authority governs two types of relations; an internal relation where “sovereignty claims obedience from the subjects within the sphere where the sovereignty is claimed”799; and conversely an external relation where the sovereign demands respect from other entities so that its sovereign rule is obeyed.800 In Carl Schmitt’s terms, the “sovereign is he who decides on the exception”.801 This means that from a Schmittean perspective, a normal situation must exist in

799 Bas Schotel, “On the Right of Exclusion” (Taylor & Francis Ltd, 2012), 38. 800 Ibid. There are countless definitions of sovereignty but for the purpose of this chapter, I am discussing the term in relation to sovereign political authority in a Schmittian sense. See, Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago/London: University of Chicago Press, 2005). Further, Martti Koskenniemi, “International Law as Political Theology: How to Read Nomos Der Erde?,” Constellations 11, no. 4 (2004): 492–511.Koskenniemi, “El discreto civilizador de naciones”, 400–413. For other interpretations, Stephen D. Krasner, ”Sovereignty - Organized Hypocrisy” (Princeton, NJ: Princeton University Press, 1999). 801Schmitt, “Political Theology. Four Chapters on the Concept of Sovereignty”, 5.

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order for a legal order to make sense and it is this “sovereign” who definitely decides whether this normal situation qualifies as such. Under Schmitt’s argumentation the exception “confirms not only the rule but also its existence, which derives only from the exception.”802

The uniform perspective of sovereign-power resides in the capacity to decide what qualifies as “normal” (space) while simultaneously deciding what constitute “the exception”.803 The point is to think that all regimes determine under their own regulatory frames what constitutes normality and what corresponds to the exception. In other terms, every regime forms its own (legal) notion of order under the deliberations of normality, rule and exception. As such, sovereignty is the borderline concept that marks the limit of the normal and the beginning of the exception – but “the sovereign” is also a form of externality, as it has the capacity to decide (the right of decision) beyond the legal order itself. This means that the sovereign is beyond the notion of order decided upon a particular regime because this ‘capacity to decide’ over the definitions of rule and exception grants the sovereign a position of privilege where ‘the sovereign’ itself is not governed by the mandates of rule and exception. Sovereignty is then – in a way – an outsider of its own definitional regime, i.e. a constitutive force outside the orders that are sovereignly constituted, so that by definition sovereign power connotes the capacity to act independently of the rules it institutes.804 In terms of the legal regime, the state of exception makes a ‘rule’ possible because “it disconnects and connects law with no-law”, therefore making the designation of inside and the outside feasible, as it operates in the zone in-between.805

802 Schmitt, “Political Theology. Four Chapters on the Concept of Sovereignty”, 5,15. Schmitt account would be therefore opposed to Kelsen’s notion of a juridical order whereby there is no fact (including the sovereign) outside the ‘law’. Koskenniemi, ”From Apology to Utopia: The Structure of International Legal Argument”, chap. 4. 803 Peter Nyers, “Rethinking Refugees. Beyond States of Emergency” (New York/London: Routledge, 2006), xii. 804 Eric L. Santner, “Some Reflections on States of Exception,” Alphabet City: Culture, Theory, Politics, no. 7 (2000): 155. 805 Schotel, “On the Right of Exclusion”, 68.

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The meaning of this assertion is related with Schmitt’s conceptualization of the juridical order. For Schmitt, it is only through the opening of the sovereign decision over that which is excerpted from the rule that the nature of the (juridical) order can be fully comprehended. This is related to the epistemological relationship between the exception and the norm. “Sovereignty is what Schmitt calls Grenzbegriff, a ‘marginal’ or ‘border’ concept. It thus looks in two directions, marking the line between that which is subject to a regulation – where sovereignty reigns – and that which is not – potentially the space of the exception”.806

5.2.1.2 The notions of rule and exception

Now, bearing in mind this conception of sovereignty, we can visualize the specificity of the ‘sovereign power’ in relation to ‘rule’ and ‘exception’. For Schmitt, law has a secondary character to the factual decision. Everything depends on the factual decision and not on an abstract norm. State power is “normative and that power itself is external to the constitutive of the law”.807 The capability of the sovereign-power to suspend the validity of the law (and a rule) is what Schmitt named the structure of the exception (Ausnahme), and he articulates this conceptualization in connection with the suspension of the law. In this account, sovereign-authority implies “the constant making and remaking of shifting landscapes of unpredictable power with which both the governed and the governing must contend.”808

Following Schmitt, it is because of the fact that the sovereign decision is made in the name of the law and “not in the particular interests of rival parties” that situates this decision in a neutral position in relation to both, the rule and the exception. Accordingly, the Schmittean perception would then rely on a version of unity of a law (and by implication of the regime): “If the law represents political unity, it presupposes that elements that compromise this unity are removed or kept out … so the exclusion of the other is necessary to safeguard order.”809

806 Schmitt, “Political Theology. Four Chapters on the Concept of Sovereignty”, xx–xxi. 807 Koskenniemi, “From Apology to Utopia: The Structure of International Legal Argument”, 226–27. 808 Elizabeth Cullen Dunn and Jason Cons, “Aleatory Sovereignty and the Rule of Sensitive Spaces,” Antipode 46, no. 1 (January 1, 2014): 102. 809 Schotel, “On the Right of Exclusion”, 103.

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To advance the understanding of a legal regime, I could equate the Schmittean notion of “legal order” with that of a legal regime. Under the fiction of legal unity, or in this case, regime-unity, it follows that exclusion is indispensable for creating and maintaining order, but more importantly for defining order.810 Under this logic, the only possibility to exercise and define the parameters (or limits) of a particular regime, or to articulate its ‘order’, involves not only the differentiation of what counts as inside and what should remain outside the established regime, but furthermore, the definition and construction of the order itself in opposition to the (other) possible order not incorporated through the decision. Sovereign power is then the capacity to determine what belong inside and outside, this is to say, to constitute the boundaries of a regime.811 The regime then represents a form of ‘ordering space’ – the determination of a territorial ordering (of an Ordnung and an Ortung) – so that a spatial inside is formed and ‘demarcated by impermeable borders’ to which all of the outside space is opposed. It generates a framework of political orderability in a system of spatially articulated jurisdictions concerns with countless insides/outsides.812 One critique among legal scholars is that conceiving the sovereign-decision about the exception is still associated with the same regulatory frame that enacted the boundaries of the regime, its regulatory frame and the definition of the exception in relation to that particular frame. In other words, the decision about what constitutes inside and outside for a regime (and therefore rule and exception) still functions as a point of orientation or reference.813 The critique initiates from the paradox that relates the sovereign decision and the exception: the sovereign is, at the same time, outside and inside the juridical order so that although “law offers protection under the law … ‘the law itself is not subject to the law’ … The Sovereign cannot precede law, because it ‘is simply the name given to a logical effect’”.814

810 Ibid., 104. 811 Giorgio Agamben, “Homo Sacer. Sovereign Power and Bare Life”, trans. Daniel Heller- Roazen (Stanford: Stanford University Press, 1998), pt. one. 812 R. B. J. Walker, “On the Immanence/Imminence of Empire,” Millennium - Journal of International Studies 31, no. 2 (March 1, 2002): 343. 813 Following Giorgio Agamben, Schotel, “On the Right of Exclusion”, 69. 814 William Rasch, “Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political” (Taylor & Francis, 2012), 90. Further, Jason Beckett, “Review Essay - Conflicting Orders: How Peace Is Waged,” Leiden Journal of International Law 20 (2007): 203

An important point is the distinctive pattern by which the nature of the exception is a ‘kind of exclusion’ of a particular case from the application of the rule, “what is excluded in the exception maintains itself in relation to the rule in the form of the rule’s suspension”.815

The rule then applies to the exception by withdrawing from it. Therefore, the implicit topology of the paradox of sovereignty resides in the mechanism “by which the Sovereign, possessing the legal means to suspend the juridical order, places himself (legally) outside the law.”816

Then again, the outside (the non-belonging to the legal regime) is included by means of the suspension of the juridical order’s validity, or put differently, the rule suspending itself gives rise to the exception – and thus maintains itself in relation to the exception first constitutes itself as a rule.817

Sovereignty, like the exception, like the decision, makes the law in excepting itself from the law, by suspending the norm and the right that it imposes, by its own force, at the very moment that it marks that suspense in the act of posing law or right.818

A state of exception is then not the chaos that precedes order, but rather the situation that results from its suspension. Arguably, any juridical political order (e.g. a legal regime) has the structure of an inclusion of what is simultaneously pushed outside. The sovereign decision produces an anomic space that is external

281–319. William Rasch, “Human Rights as Geopolitics. Carl Schmitt and the Legal Form of American Supremacy,” Cultural Critique 54 (2003): 120–47. 815 Agamben, “Homo Sacer. Sovereign Power and Bare Life,” 18. 816 Claudio Minca, “Giorgio Agamben and the New Biopolitical Nomos,” Geografiska Annaler Series B - Human Geography 88, no. 4 (2006): 389. 817 Agamben, “Homo Sacer. Sovereign Power and Bare Life,” 18. 818 Jacques Derrida, “The Beast and the Sovereign,” trans. Geoffrey Bennington, vol. I, The Seminars of Jaques Derrida (Chicago/London: The University of Chicago Press, 2009), 49.

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to the law, and yet paradoxically included within the law through this externality.819 What is at stake is the “definition of the very space in which the juridico-political order can have validity”.820 Furthering this argument, the border that divides what is included and excluded is “nevertheless, an integral part of that space.”821 The consequence of the sovereign decision over the exception can be defined as a process of interiorization that allows “sovereignty or exception to delimit both the space and the object to which it applies. But, for this to take place, it is necessary for the sovereign to “overhang” this space, to exteriorize himself in order to set the limits of inclusion.”822

The criticisms operate in a two-directional path. The exception is conceived as that of a fundamental localization or territorial order (Ortung), “a spatial device that does not limit itself to distinguishing what is inside from what is outside but instead traces a threshold (the state of exception) between the two, on the basis of which outside and inside, the normal situation and chaos, enter into those complex topological relations that make the validity of the juridical order possible.”823

In this way, the rule ‘lives’ in its spatiality, granting its materiality and meaning.824 As such, any “order is senseless without territorial grounding – and without the meaning granted by such grounding.”825

However, in terms of non-legality it is possible to conceive as to some extent both political and exceptional “a much broader range of decisions, approached by or

819 Daniel MacLoughlin, “Agamben’s Exception: Sovereignty, Ontology and the Politics of Crisis,” 2010. 820 Agamben, “Homo Sacer. Sovereign Power and Bare Life,” 19. 821 Nick Vaughan-Williams, “The Generalised Bio-Political Border? Re-Conceptualising the Limits of Sovereign Power,” Review of International Studies, no. 35 (2009): 729–49. 822 Dider Bigo, “Globalized (in)Security: The Field and the Ban-Opticon,” 2006, 1–45, http://www.people.fas.harvard.edu/~ces/conferences/muslims/Bigo.pdf. 823 Claudio Minca, “Giorgio Agamben and the New Biopolitical Nomos,” Geografiska Annaler Series B - Human Geography 88, no. 4 (2006): 390. 824 Minca, “Giorgio Agamben and the New Biopolitical Nomos.” 825 Ibid., 389.

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among a much broader range of agents and aggregations, than those which Schmitt entertained as such”.826

5.3 International legal argument: The critical standpoint

The problem with the Schmittian understanding goes beyond his interpretation of the sovereign power as constitutive of a legal (order) regime. The approach still requires that this sovereign power is predetermined vis-à-vis the law. It represents, according to Koskenniemi, a perspective by which order and obligation are argued from state behaviour, will or interest. This is to say, an ascending pattern of justification.827

The proposal to approach international law from the inside implies that international law is not conceived as an objective ‘thing’ but rather on the structure or arguments situated around international law. In Koskenniemi’s CILT perspective, when the objective essence is left behind there remains nothing other than what is said about international law by all those concerned.828

International law envisioned as a series of professional performances, or as a social practice, in itself implies that “different sensibilities, ideologies and interests are described, defined and justified”829 within the grammar of international law. The notion of structural biases described by Koskenniemi would then not only be embedded through an edifice of formal concepts and categories but also in the social context of interactions routinely confronted with the ‘logic’ of a shared community of professional knowledge, also known as epistemic knowledge. A ‘regime’ is not only formed through legal divisions, such as trade law, international law, IHL, human rights Law or ICL but more importantly from the fact that the actors included within that regime share ‘knowledge’ or ‘understanding’ with reference to a functional and professional specialization. This ‘knowledge’ would then guide the actions of the actors and elements that

826 Johns, “Non-Legality in International Law”, 102. 827 See Introduction 1.4.1.2 section b) 828 Focarelli, “International Law as Social Construct”, 113. 829 Quoting Morgan, Mario Prost, “The Concept of Unity in Public International Law” (Bloomsbury Publishing, 2012), 134.

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interact within the boundaries of that regime. Therefore, a legal regime would remain highly fluid and open to constant fluctuation. Regimes function under the inference of the elements that are included inside their space of influence and the parts of that are supposed to be designated outside the regime itself. This is the reason why a ‘trade law’ or an ‘IHL’ regime would address concerns with a trade law or an IHL vocabulary and under the ‘structural bias’ of their own systemic preferences. Now, in being ‘fluid’, regimes are not self-contained and expert networks are disaggregated into a variety of regimes. Legal instruments produced within the spectrum of a particular regime are used jointly with, in opposition to, above or below other soft-law mechanisms, creating “self-regulatory structures” or “mini sovereignties” whose outcomes are internally validated “by their embedded hierarchies of preferences” this is to say, their structural biases.830 Simultaneously, regimes are composed by legal and non-legal instruments seeking not only regulate behaviour within their domain of operation but also “help to constitute the social domains on which they act”, this proposition functions to describe that every ‘regime’ help to construct their own functional project and to that extent how ‘problems’ and ‘solutions’ are imagined. Furthermore, the authority of regimes is based on the scientific, technical or disciplinary nature of the expertise they represent.831

Hence the virtual commitment of functional regimes to apolitical decision-making in solipsistic and imperial terms … this is what it means for a regime to imagine itself in epistemic terms, as regime (scientific, technical, disciplinary) truth instead of political preference.832

When approaching non-legality, the previous CILT critique of Schmitt is useful because the non-legal status of decision-making is not situated in a place ‘outside’ the legal regime but is fully incorporated within.

830 Martti Koskenniemi, “Hegemonic Regimes,” in “Regime Interaction in International Law: Facing Fragmentation” (Cambridge University Press, 2012), 305–24. 831 Lang, “Legal Regimes and Regimes of Knowledge: Governing Global Services Trade,” 1. Koskenniemi, “Hegemonic Regimes.” 832 Koskenniemi, “Hegemonic Regimes,” 318.

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For instance, in conceiving the programme budget of the United Nations discussed in Chapter Four, the budgetary regime is not only composed by the rules and procedures of the General Assembly but also by the conclusions and recommendations subscribed by the Fifth Committee and ACABQ as these reports exert a form of bureaucratic and institutional control that became normative for the operation of the OTP. By the same token, the peace building regulation regime of UNMIK would be composed not only from the SC resolution 1244, but similarly by the administrative directives that were issued for the implementation of the ‘standards for Kosovo’.

Prima facie, there are four implications in describing legal regimes from the CILT perspective, firstly, non-legality decision-making is not absence of ‘law’ but related to law in different types of associations. Secondly, within a regime, the ‘relation’ between law and soft-law is an essential part of both because neither element is independent from the other. Thirdly, in observing the interactions between law and soft-law, it is possible to argue that it is the relation between these two elements (and not only the content of their regulations) which determines the structural bias of the regime in which they are placed. The reason for this is that regimes are in themselves ‘relational’, this is to say, they build upon the different interactions of its legal and non-legal elements.833

Fourthly, from the description above it is also possible to question the idea that within a particular regime there is a monolithic source of sovereign-power or authority. In that sense, regimes are composed by an overlapping multitude of authorities or authorities-lite and their friction “enables and determines which material objects and symbols are on one hand and how they can be appropriated … The disjuncture between projects can create openings to re-appropriate the materials and symbols of one sovereign project to act within the frame of another.”834

833 The idea of “relation” is taken from Ollman. “The philosophy of internal relations … treats the relations in which anything stands as essential parts of what it is, so that a significant change in any of these relations registers as a qualitative change in the system of which it is a part. With relations rather than things as the fundamental building blocks of reality, a concept may vary somewhat in its meaning depending on how much of a particular relation it is intended to convey” Bertell Ollman, “Dance of the Dialectic: Steps in Marx’s Method” (Urbana, Ill: University of Illinois Press, 2003), 5. 834 Dunn and Cons, “Aleatory Sovereignty and the Rule of Sensitive Spaces,” 99.

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The decision on a rule is thus realized though different processes and different networks of people. It is hence a mobile notion worked on through the activity of actors. “Sovereignty is not a singularly human and top-down act of political will or event … it is rather a work on terrain of relationality.”835

In this respect, in connection to selectivity, it is possible to observe two overlapping levels where non-legality functions in a continuum sequence: The practice–level or decision-making stage (evaluated as regime definition) and the systemic–level or regime friction stage (described as regime interaction).836 In this account both planes reconstitute and reshape each regime.837

5.4 Selectivity: practice and systemic level

In relation to selectivity, I argue that non-legality practices are observable at two intersecting levels: the practice level and the systemic level. In the former, decision-making processes are related to the negotiations concerning the professional identities of the actors that compose a regime. In this vision, the professional performances that compose international regimes (criminal, administrative, trade, etc.)838 are also involved in generating agents (such as the state), objects (such as treaties, guidelines as standards) and structures (such as sovereignty) in the international arena.839

835 Yael Navaro-Yashin, “The Make-Believe Space - Affective Geography in a Postwar Polity” (Durham/London: Duke university Press, 2012), 44. 836 This perspective derives from the quasi-ethnographic approach discussed in methodology. It also draws on Max Gluckman’s pioneering conceptualization named “situational analysis”. A feature of situational analysis is to show the interdependency between practices and the context in which they are produced (in reference to a systemic level). The discussion is thus not divided into micro, meso or macro scales of analysis usually undertaken by other social sciences. 837 Andrew T. F. Lang, “Legal Regimes and Professional Knowledges: The Internal Politics of Regime Definition,” in “Regime Interaction in International Law: Facing Fragmentation” (Cambridge University Press, 2012), 114. 838 See introduction 1.4.2 839 Expanding Sending’s, Pouliot’s and Neumann’s interpretation, Ole Jacob Sending, Vincent Pouliot, and Iver B. Neumann, “Introduction,” in “Diplomacy and the Making of World Politics,” ed. Ole Jacob Sending, Vincent Pouliot, and Iver B. Neumann (Cambridge ; New York: Cambridge University Press, 2015), 7.

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At the systemic level, biases are observed in the process of hierarchization of particular preferences when different regimes interact and collide.

5.4.1 The practice-level or decision-making stage: regime definition

In this stage, structural biases and preferences are formed and sustained through the micro operations and interactions of its actors through legal and non-legal practices. I will exemplify this by drawing from Soave, Lang and Koskenniemi, and taking as a practical sample the findings concerning the formulation of indictment policy.840

It is possible to observe that structural biases were manifested in the interaction between OTP actors and other professionals that were interrelating and influencing the issuing of an accusatory document.841 What Lang called the “principles of vision” correspond to the internal logic by which actors render ‘visible’ what they ought to do in its interactions with other participants of the regime and in relation to the regime itself.

At the practice level or decision-making stage, practice is implemented through the claiming of authority, this is to say, the “jurisdictional control” over certain professional performances and tasks. The identity and attendant resources of the actors are “inhering in the relations they have with others”.842 The decision-making level is – to that degree –also a form of ‘regime definition’ whereby the actors that position themselves inside this regime struggle not only over what they are expected to do in relation to other actors but also over what they are expected to do vis-à-vis a certain regime, interpreting the internal rules of the regime (and thus also constructing them).

840 Lang, “Legal Regimes and Professional Knowledges: The Internal Politics of Regime Definition.” Lang, “Legal Regimes and Regimes of Knowledge: Governing Global Services Trade.” Soave, “Structural Biases in International Adjudication.” 841 Lang, “Legal Regimes and Regimes of Knowledge: Governing Global Services Trade.” Lang, “Legal Regimes and Professional Knowledges: The Internal Politics of Regime Definition.” 842 Sending, Pouliot, and Neumann, “Introduction,” 12.

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Richard Goldstone

The first OTP tenure presented one strong structural bias. From Goldstone’s statements and his policy decisions it can be argued that although the prosecutor detailed that his “indictments did not exclude anybody if relevant evidence was provided”, in practice he indicted low-level accused –sometimes disregarding prima facie requirements – in order to sustain the continuity of the tribunal as a newly born UN institution. By saying this, I am pointing to the overall ‘inner’ logic of the ICL regime read from Goldstone’s actions. In this way, the indictment policy was shaped by a structural bias that we could call institutional viability.

Selectivity in this account derived from Goldstone’s understanding that “what counted most of all was to set the wheels of prosecution in motion”. The politics of selectivity ergo are in the “specific principles of vision – the particular implicit framework of visibility and invisibility” which the regime deploy to distinguish what is acceptable and what not within its boundaries.843

Non-legality practices were present in countless normative cannons that surrounded for instance the Dayton Accord negotiations and the constraints over budgetary expenditures by the Fifth Committee and ACABQ.

Louse Arbour

During the subsequent tenure of Arbour, two main structural biases were manifested: firstly, Arbour’s linkage between “criminal accountability and peace” and secondly, the “need to climb up the chain of command”. This resulted in a selectivity practice by which the OTP had to perform adequately in relation to multiple other actors in the Balkan peace process. The OTP was therefore another participant. In her words this implied locating the OTP (and the ICTY) as a “real player in the region”. The value of her policy (in relation to those other participants) was in achieving jointly regional stabilization. This is visible for instance, during the Kosovo crisis, when the OTP had to reallocate personnel and investigations (therefore dropping previous crime sites) in order to meet the Security Council’s new mandate.

Furthermore, the necessity to secure indictments against the highest levels of command responsibility disregarded the fact that the OTP was heavily relying on

843 Lang, “Legal Regimes and Professional Knowledge: The Internal Politics of Regime Definition.”

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external cooperation frameworks to obtain information and to secure field sites for carrying out investigations. Comparing the lack of access to data when Arbour approached operation storm in opposition to the allowance of data in Milošević’s case illustrates this bias.

Non-legality practices were manifested in the SC decisions to redeploy personnel to Kosovo and the financial problems caused by expenditures procedures.

Carla Del Ponte

During Del Ponte’s time in office there was one prominent structural preference. The interiorization of the external SC mandates into criminal accountability. This meant that Del Ponte used her indictment policy to represent “undisputable facts and truths” about the war, ergo targeting “all the parties”.

Under Del Ponte, selectivity was visible in the preferences to target suspects in connection with their ethnic ‘membership’ and not necessarily by the number of victims caused by their offences. In her position it was important that “the tribunal” itself should not pass into history as disregarding a “historical” representativity of the conflict. The targeting of KLA and Macedonian members (with low numbers of victims) in contrast with previous indictees shows this bias.

Non-legality practices were connected to EU enlargement policies, the peace building processes in Kosovo and ACABQ practical restriction due to the completion strategy.

5.4.2 The systemic-level or regime friction: regime interaction

As Lang has observed, the interaction between regimes (e.g. ICL and international administration) always involves processes of contestation and collision because every regime has an intrinsic internal logic of ‘how to operate’, this is to say how to regulate itself. In that sense, regimes and the interactions among them involve contesting “normative choices between competing political projects”. 844 Against this backdrop, the biases that constitute a particular regime are always sustained and changed over time because their internal logic, or mandate “is

844 Ibid., 113.

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constructed and embedded within broader political projects”845 This shows why on some occasions regimes could be harmonized and work their interests mutually while on other occasions this was not viable. The different approach of UNMIK in connection with the indictment policy of Arbour and Del Ponte is an example of this point. Bringing back the notion of structural biases, it is possible to agree with Lang that different [legal regimes] tend to have dissimilar internal logics “which express and embody different normative biases.”846 This is visible, for example, when assessing the interactions between ICL regime and the UN budgetary regulations. In correlating the OTP tenures with the level of obstructionism represented by the ACABQ reporting system it is apparent not only that the ICL regime had a different inner logic of activities but also that the UN budgetary regime positioned itself on a hierarchical level in relation to ICL in numerous ways. A second example is the preference of the ICL regime during Del Ponte tenure to represent the conflict by indicting senior officials of each national or ethnic group versus the UNMIK regime’s inclination to forge ties with local Albanian leaders, focusing on the future status of Kosovo. In this second scenario, UNMIK ranked itself (and the regime preferences) at an upper level in relation to the ICL regime. As Lang demonstrates, the ‘coordination’ or interaction between regimes is primarily about “hierarchizing those preferences in particular contexts”. 847

5.5 Radical indeterminacy and non-legality in selectivity Legal regimes in international law comprise of both ‘law’ and soft-law regulations. In the introduction to this study I referred to the notion of radical indeterminacy to explain that all international norms are capable of supporting any claim and could therefore produce oppose results, as legal discourse is in itself self-referential.

This determines that ‘law’ or any other regulatory artefact cannot provide closure to the regime nor define what a particular rule or standard ‘objectively means’, regimes are interdependent and legal (and soft-law) arguments depend on the particular argumentation in which they are used.

845 Ibid., 114.

846 Ibid., 113.

847 Ibid.

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CILT has traced this back to the lack of a priori justifications in international legal debates. The so-called absence of coherence in international law is what resolves that the choices of the participants over international law discourse are always political.

When evaluating non-legality, I came to notice that radical indeterminacy was also present at the two levels evaluated above: the practice or regime definition level and at the systemic level. The implication of this is that the vocabularies with which regimes and their actors define themselves in relation to their practices are open enough to support different choices. 848

Selectivity in the OTP indictment policy is fundamental to ICL to the extent that structural biases allow and restrict OTP performance within outside the ICL regime. When OTP prosecutors required ‘interaction’ with other forms of normativity (diplomatic, financial, administrative, etc.) these other normative registers not only incorporated but fundamentally moulded ICL daily practices.

Bringing this to the topic of selectivity, one could argue that both professional interactions and systemic interactions produce, shape, transform or re-position selectivity on different scales through a variety of temporal and spatial dynamics in which legal regimes are formed.

5.6 Conclusions

A first point to mention is the fact that all legal regimes present structural biases. Under CILT, there is no possibility to conceive a regime without the notion of the structural preference inherent in the constitution of a legal regime. Departing from this observation, it is possible to maintain that international legal arguments negotiate the ‘rule’ and the ‘exception’ by which operators decide the boundaries (order) and content (regime definition) of a particular legal regime. All regimes are composed by legal and soft-law regulations that are radically indeterminate so that hierarchies within and between regimes are established through the participation of a variety of actors with no fixed pre-determined codification or outcome. International legal regimes are another arena for political

848 Ibid., 134.

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and social action because they remain open and fluid to the uses, contestations, projects and networks that constitute them. Structural biases are present at both the practice or decision-making level and the systemic or regime friction level. The implications are that selectivity is involved in both instances; this is to say within ICL and through the interaction of the ICL regime with other regimes. Bringing back the discussion concerning the notion of critique in opposition to a ‘problem-solving’ perspective, this chapter has posited selectivity going beyond ICL definitional frameworks in order to present an alternative perspective to the ways in which selectivity is imagined and discussed in ICL literature. The objective therefore is to highlight additional explanatory possibilities in order to expand the scholarly debate.

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VI. Final conclusions and outlook: Non-legality as a point of departure

In this research I have re-described the notion of selectivity from the purview of non-legality practices through the lenses of CILT. I took on this task in order to rethink dominant perspectives that located selectivity as a problem within ICL but outside ICL structures. From the viewpoint of selectivity, this study pointed towards the interrelationship between OTP indictment policy decisions and the ‘contextual’ factors that determine it. In order to do this, the study outlined theoretical trends on CILT that would make it possible to move the academic discussion on ICL forward, making evident the patterns of liberal legalism and the problems of the uses of the domestic analogy. In addition, this research incorporates the notions of non-legality and soft-law as conceptual tools in order to fill in the gap between the theory and practice of ICL. This study introduces the notion of critique into the ICL scholarly discussion in order to provide a basis for enquiries that could be built up from recognizing that ICL present features of internal incoherence, constrained structure and radical indeterminacy. As such, this study advocates for separating problem-solving approaches to proper ICL critique. As such, by assessing ICL as a unitary discourse with no boundaries between theory, doctrine and diplomatic practices, I focus the discussion on the way in which different legal and non-legal operations shape ICL (and selectivity) through routinely diplomatic, political, economic and administrative performances. This supports the view of ICL is produced every-day through the merging of multiple activities and events. Selectivity looks different when one questions it from the perspective of the social spaces and practices that allow its creation. The move in thinking ICL from ‘above’ to the day-to-day moments in which ICL converges with other ‘regimes’ is no longer a secondary task – it is precisely this theoretical endeavour which would make it possible to further knowledge about the realities that ICL is creating everyday, in which “national and international, public and private legal regimes overlap, struggle for priority and have quite diverse impact on the ground”.849

849 Orford, “International Law and Its Others”, 401. 216

At the beginning of this study I posed two questions: firstly, how, and in which way do external (non-legality) considerations intervene in the production of selectivity through the formulation of indictment policy, and secondly, how can we understand selectivity from non-legality frameworks? I argue that the way in which non-legality considerations intervene in the production of selectivity depends on the specific ‘regimes’ in which OTP policy decisions are due to situate themselves in order to obtain cooperation and compliance and which ‘tools’ are borrowed from the management of that particular regime. From a CILT perspective, the breach between rule approach and the policy approach not only renders decisions on who to target in an indictment ‘open’ to external consideration but more importantly they are driven by external regulatory frames. Through a three-dimensional conceptualization of power, it was apparent that the issuing of an accusatory document was not only bordered though formal constraints such as the enactment of the completion strategy but in addition it was over determined by other (non-legality) regimes. The fact that international criminal tribunals, such as the ICTY “are inherently political in terms of how they are established, their policies and priorities, their relationship to the large multi-lateral organizations and to the police or military units that will arrest the indicted”850 makes dependency in itself an essential feature of how they are supposed to perform, rendering selectivity an occurrence that is not only “marginal or exceptional, but endemic, consistent and structural”.851 These findings could be of interest to ICL scholars, by shifting the discussion exclusively centred on ICL’s substantive or procedural subjects onto other non- legality normative spaces (these being administrative, diplomatic, financial, related to peace building, etc.). In the forthcoming sections, I will expand this argument in relation to four configurations that were touched on in previous chapters and that could potentially drive future research 1) diplomatic practice; 2) displacement of authority 3) soft-law policy and legal order, and 4) indictment policy and media legitimation.

850 Stover & Weinstein, “My Neighbor, My Enemy. Justice and Community in the Aftermath of Mass Atrocity, ” 41. 851 Beckett, “Critical International Legal Theory.”

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6.1 Diplomacy’s selectivity of ‘in’ and ‘out’

What is interesting about correlating diplomatic approaches in the Balkan conflict with OTP decisions on indictment policy is that in all the three tenures, the actions of the prosecutors resembled that of the diplomatic toolbox. The implications of this are not only that three prosecutors Goldstone, Arbour and Del Ponte resorted to diplomatic frameworks for cooperation, but more importantly that diplomatic non-legality practices ‘absorbed’ and moulded OTP decisions over indictment policy.

When OTP practices encountered non-legal domains such as diplomacy, they are required to incorporate themselves into that specific sphere in order to act among the specific actors that use these non-legality practices.

For example, if we look at the peace negotiations and EU enlargement policies in the Balkan Region, it is manifest that peace negotiations in the Balkans had three different outlooks. Firstly, between 1993 and 1995, diplomatic endeavours centred on economic incentives and penalties. The reason for this was that the EU deployed “conference diplomacy” to reach a peaceful agreement amongst parties, and the European Union emphasized its role as a “monitoring” agent with the guiding principle of “no unilateral change of borders by force” in Yugoslavia.852 As such, even after the initiation of the Bosnian War, EU interventions centred on persuading the ethnic groups in Yugoslavia to avoid aggression – using loans and grants to improve the situation. 853

Secondly, between 1996 and 1998, the prioritization of peace agreements was enacted in opposition to criminal accountability. Diplomatic efforts were focused on constitutional proposals for the rearrangement of SFRY and for the emerging Republic of Bosnia and Herzegovina.854 At this stage, it remained highly problematic to treat any of the Yugoslav states as aggressors in the conflict and this constrained the responses to economic and diplomatic reactions.

852 van den Broek, “Document 91/256. Statement at the Conference on Yugoslavia, Held at the Peace Palace.” (European Political Cooperation Documentation Bulletin, September 7, 1991). 853 Robert Dover, “The EU and the Bosnian Civil War 1992-1995: The Civil Capabilities– Expectations Gap at the Heart of EU Foreign Policy,” European Security 14, no. 3 (September 2005): 303. 854 Paul C. Szasz, “The Protection of Human Rights Through the Dayton/Paris Peace Agreement on Bosnia,” American Society of International Law 90, no. 2 (1996): 301–3. James E. Goodby, “When War Won Out: Bosnian Peace Plans Before Dayton,” International Negotiation 1, no. 3 (January 1, 1996): 503,509.

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Thirdly, during 1999-2003, diplomacy was focused on the diversification of stabilization frameworks.855 Fourthly, between 2003 and 2007, EU incorporated an offensive approach towards integration in order to concretize its enlargement policy. The EU regional approach confirmed, and reinforced the principle of conditionality as the main form for advancing EU relations with the Balkans in financial assistance, unilateral trade preferences and enhanced cooperation agreements, all of this with lists of requirements to be met by Balkan states such as Serbia and Croatia.

From the discipline of international relations, diplomatic efforts were centred on accommodation, economic inducement, and the use of military force. Accommodation aims at reducing conflict by meeting as many of the objectives of each party as possible. Economic inducement entails the idea that it is legitimate to seek modification of party’s behaviour through the employment of financial incentives and/or economic sanctions. In defined circumstances states and regional organizations may use military force to affect the behaviour of another state or substrate entity.856

Goldstone’s policy was dictated by circumstances. His work was heavily constrained by the continuation of wars, the ambiguity of the Security Council and other states towards the OTP and an acute situation of lacking enough resources to hire personnel and investigate paramount events such as the Srebrenica massacre. He used the method of accommodation to deal with both international actors such as the Fifth Committee and the ACABQ and the peace negotiators in the Dayton Process.

He complied with the political requirement to obtain sufficient resources though the indictment of Nikolić while simultaneously handling the “moral equivalent approach” and the “Milošević strategy” implemented to enable the signature of the Dayton accords.

During the time of Arbour’s appointment, her interest in positioning the OTP (and the tribunal) as an important actor in the region collided with motives and the efforts of major international ‘players’. This was represented in the lack of

855 Franz-Lothar Altmann et al., “Chaillot Paper N70. The Western Balkans: Moving on,” ed. Judy Batt (Institute for Security Studies, October 2004), http://www.iss.europa.eu/uploads/media/cp070.pdf.

856 Williams and Scharf, “Peace with Justice?”, 24–29. 219

information concerning operation storm and the lack of support of the SC concerning the cooperation of the Balkan states.

The Račak incident and the Kosovo bombing campaign were utilized to obtain the information denied to Goldstone. Her statement “we had to be out there” not only signifies the need to make the tribunal visible in relation to other actors in the international arena but furthermore that “progress” such as the issuing of Milošević’s indictment was a manifestation of institutional power. Sealing indictments and positioning arrest warrants to craft rivalries between international agencies such as UNTAES and SFOR to obtain cooperation can also be assessed from the perspective of accommodation.

Legally, information is conceived as a means to substantiate charges in order to contribute to issuing an indictment, but politically, information is not just a “static thing” contained in documents – as discussed by Hetherington – information is knowledge that allows improved decision-making. As such, information can be described as “knowledge in commodity form”. Its relevance is that it “grants access to something real”857 and in order to obtain relevant data Arbour had to persuade the actors in possession of these commodities that the OTP was a contributing factor to the same international and security mandates in the Former Yugoslavia. Negotiating interests were visible in the fast-track of Milošević’s accusation in the context of the Rambouillet talks disregarding the need to open investigations into the Kosovo bombing by NATO member states.

By observing Del Ponte’s policy decisions, it is manifest that she used both accommodation and economic inducement in the form of financial assistance and bargaining over EU accession to secure the regional cooperation and compliance of Serbia and Croatia. The reduction of Del Ponte’s resources to meet the completion strategy pointed to the contradiction she faced between delivering results and not ‘rocking the boat’.

However, from the perspective of diplomacy and international relations, this has a different reading. Diplomats and others constantly engage in competition and cooperation “to reproduce the state as a naturalized venue for political mobilization and agency.” Diplomatic practices are developed by protocols, predetermined agendas and alliances that seek to facilitate the “naturalization and /or universalization of the state” organizing political processes in such a way that

857 Kregg Hetherington, “Guerrilla Auditors: The Politics of Transparency in Neoliberal Paraguay” (Durham: Duke University Press, 2011), 5.

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state actors have a privileged position. Consequently, when prosecutors step in, “diplomacy establishes the frame of reference” for actors such as the OTP.858 The deployment of accommodation and economic inducement render the OTP into a context aligned with state interests but without the proper capacity to engage in diplomatic efforts. In order for the OTP to have agency at the international level it had to perform according to state diplomacy. States (and their plural forms in international institutions) are not independent in the same way as the international prosecutor was supposed to be independent. Diplomatic efforts are based on plurality. In the broadest terms, diplomacy is “the claim to represent a polity to the outside world.” As such it is a process (asserting authority and jurisdiction); it is relational (in the interface between one’s polity in opposition to other’s policy), and it is political (involving both representation and governing).859 This does not mean that the actions of prosecutions in requesting cooperation in order to meet their policy, negotiating additional funding, or speaking at the Security Council did not have an impact in the diplomatic arena. What I am referring to is the ‘register’ of how the debate over their legal work could only be debated in the diplomatic idiom. This created a dynamic by which decisions over who to target were necessarily affected by ‘what states want and are willing to provide’ and to that extent selectivity was crafted through this form of normative ‘diplomatic’ practice.

6.2 Displacement of authority

The financial and budgetary procedures over the OTP and the confrontations between the OTP and the peace building administration in Kosovo allow for four general reflections that I would like to present regarding extra-legality and the displacement of authority. 1) There was a constant need for validation of the OTP and the tribunal work as a whole. This not only compromised the work capacity of the OTP, but moreover, it reflected the micro-operations of grand scale structural (financial) biases. The Fifth Committee was ‘programmed to prioritize’ efficiency and productivity concerning the distribution of budgetary resources in the same vein as the

858 Ole Jacob Sending, “Diplomats and Humanitarians in Crisis Governance,” in “Diplomacy and the Making of World Politics, ” ed. Ole Jacob Sending, Vincent Pouliot, and Iver B. Neumann (Cambridge; New York: Cambridge University Press, 2015), 256–83. 859 Sending, Pouliot, and Neumann, “Introduction,” 6.

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ACABQ. In order to receive adequate funds, the OTP had to ‘internalize’ mandates pertaining to the appropriation of assets and the distribution of staff. The budgetary reports that were requested to the OTP not only functioned to inform ACABQ how the budget was allocated, but fundamentally this form of reporting itself served as a mechanism of coordination and control in a system of ranked authority.860 This means that authoritative decisions over indictment policy were also moulded through forms of hierarchy and regulations that were horizontally controlled on the basis of conformity to “centrally imposed rules about appropriate levels of performance.”861 When this is accompanied with performance indicators, this form of authority is completely curtained off from enquiry and accountability because indicators have the capacity to add a level of detachment and ‘scientificity’ to their outcomes, and also because indicators shift power relations, transporting authoritative decisions from the agency to be evaluated (ICTY-OTP) to the organization that is doing the assessment. 2) Reflecting on the discussion of liberal legalism in ICL, there are two implications in terms of how authority is understood. Initially, trial form deliberations disregard the fact that authoritative decisions on OTP work are also situated ‘outside’ ICL frameworks. This not only means that there are no mechanisms of control concerning the possibilities of affectation of, for instance, procedural rights, but additionally that authority itself has a different role, which is far more complex in the functioning of ICT’s than is generally recognized. In that regard and – beyond the scope of this thesis– it would be important to re- consider the delegation of authority from states to ICT’s and the concrete meaning of decisional authority.862 3) In contrast to the context of diplomatic encounters, when OTP actions were positioned in relation to bureaucratic (financial) frames, these interactions were perceived as ‘apolitical’. Although, Goldstone, Arbour and Del Ponte resented the financial policy of the UN, they performed according to these requirements in order to be allocated resources.

860 Hales, “‘Bureaucracy–lite’ and Continuities in Managerial Work”, 53.

861 Ibid., 61.

862 Further, Shlomit Wallerstein, “Delegation of Powers and Authority in International Criminal Law,” SSRN Scholarly Paper, Oxford Legal Studies Research Paper, no. 3/2013 (Rochester, NY: Social Science Research Network, January 11, 2013), 2, http://papers.ssrn.com/abstract=2199397.

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The discourse over impartiality and the independence of the OTP as an organ of the ICTY was elevated to the international arena in the cases in which the prosecutions were dealing with cooperation and compliance among states and other UN/EU agencies. However, the same discourse was not used to counteract the various bureaucratic and financial burdens imposed on the OTP. Precisely because bureaucracy has the capacity to ‘de-politize’ its hierarchies and [therefore] its interventions, it can ‘govern’ through the principle of efficiency “the attempt, at least, to govern administrative behaviours by a rational, impersonal means-ends calculation that minimizes costs and maximizes control”.863 The implications however were far broader than the confrontations with state diplomacy. Bureaucratic control through finances created a form of dependency and conditionality that was as damaging as the lack of cooperation and information, because there were no channels by which OTP prosecutors could contest the allocation of assets. Once ACABQ issued a report recommending a sum, the costs were basically approved at the UN General Assembly. 4) Observing how donations and voluntary contributions were deployed at the OTP, it became apparent that fundraising activities were expected not only from the ICTY president but furthermore from the OTP chief prosecutors. The lack of control over the budget made these resources important to carry out investigations and to plan core activities. It also situated the tribunal in a problematic situation in relation to those states that were providing most of the funding.

6.3 Soft-law policy and legal order: Insiders and outsiders

The consequences of structural biases are reflected in how regional and international actors perceived the indictment policy of the OTP and the form in which these actors positioned themselves towards OTP policy. It is possible to observe that actors that dominated certain normative regimes (be these diplomatic, financial, administrative, etc.) consolidated their interests hierarchically in relations to OTP mandates. This is observable, for example during the Kosovo bombing in 1999 with regards to investigations of the criminal accountability of NATO’s soldiers and high-ranking officials:

863 Quoting Weber, Hales, “‘Bureaucracy–lite’ and Continuities in Managerial Work,” 62.

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I believe that when Justice Arbour starts her investigation, she will because we will allow her to. It’s not Milosevic that has allowed Justice Arbour her visa to go to Kosovo to carry out her investigations. If her court, as we want, is to be allowed access, it will be because of NATO so NATO is the friend of the Tribunal, … NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, and of course to build a second chamber so that prosecutions can be speeded up so let me assure that we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don’t anticipate any others at this stage.864 – Jamie Shea

The ‘we-talk’ in this statement indicates that the so-called ‘we’ [with the capacity to judge] is implicitly predetermined by certain states and actors, excluding any possibility of enquiry about other notions of order. The particular characteristic of ICL – is the assumption that it fosters a project to establish an international legal order for the prevention of crime and mass atrocity violence. In the words of former ICTY president, Antonio Cassese, ICT’s have piloted a “new world order based on the rule of international law.”865

This scenario is interesting because ICL as a legal order is based on the assumption of the ‘universalizability of the we’ that is for instance, reflected in ICL scholarly statements such as “international criminal law is the criminal law

864 NATO, “Press Conference Conducted by NATO Spokesperson Jamie Shea and Major Gen. W. Jertz,” Press Conference, (May 16, 1999), http://www.nato.int/kosovo/press/p990516b.htm. 865 Antonio Cassese, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law,” European Journal of International Law 9 (1998): 8.

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of the international community”866 the first-person-plural-perspective867 ‘we’ (an elusive ‘international community’) is completely erased from the site of violence – as violence is located always elsewhere (outside of the place of legal order).

In this form of universalization, selectivity is a retributive “deficit” in relation to an absent limited distribution of boundaries (spatial, temporal, material, or subjective) - precisely because not all of the worst criminal actions [anywhere and everywhere] are targeted because of the “confluence of political concerns and not the inherent gravity of the crimes”.868 As the international (criminal) legal order symbolizes and embodies “values and expectations shared by all peoples in the world and is, therefore, a triumph for all people in the world” (emphasis added).

What this perspective is lacking is the fact that artefacts and forms of knowledge and regulation commonly understood as exogenous to law also contribute to the architecture of ICL and systemic structural biases. In incorporating a perspective that includes soft-law and the normative force exerted by these practices, it is possible to re-imagine selectivity and the articulation of jurisdictional spaces beyond an ICL legal order divided between insiders and outsiders (‘we’ vs. ‘them’). International (criminal) law does not structure or secure a certain ‘order’. It is the continual use of the material and symbolic resources invested in certain institutions – and certain regimes– that helps to produce and reproduce certain orders. This implies that the lines of ICL as a legal regime are constantly blurred by non-legality practices because ICL’s jurisdictional space “gets articulated with a range of other jurisdictional spaces, both remote and approximate”.869

6.4 Indictment policy and media legitimation

Between January and April 2006. I served as a legal clerk at the Office of the Prosecutor of the ICTY. I worked on the so-called “MOS” case involving accusations against Milutinović, Sainović, Ojadanić, Pavković, Lazarević,

866 Alexander Zahar and Goran Sluiter, ”International Criminal Law: A Critical Introduction” (Oxford UK; New York: Oxford University Press, U.S.A., 2009), vii. 867 Lindhal, Hans: “Fault Lines of Globalization: Legal Order and the Politics of A-Legality”. 2013, Oxford, 125. 868 Drumbl, “Atrocity, Punishment and International Law”, 151.

869 Fleur Johns, “Financing as Governance,” Oxford Journal of Legal Studies, March 31, 2011, 21.

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Đorđević and Lukić who were initially charged together with Milošević for war crimes in Kosovo committed in 1999.870 The day after Milošević was found dead in his cell, I attended the press conference given by Judge Fauto Pocar, Carla Del Ponte, and the OTP advisor Florence Hartmann.871 On reflection, I witnessed one of the most interesting legitimation processes concerning OTP’s indictment policy. Milošević’s importance was not only measurable in terms of criminal accountability, but was also connected to the overall performance of the tribunal in the eyes of mass media.872

The press statements and conferences relating to Milošević’s death are interesting in themselves because they reveal broader arrangements which the OTP has relied on, such as the publicity of indictments as a methodology to obtain resources, cooperation and more importantly to legitimate its work. The connection between the OTP and mass media can be subsumed under the notion of “mediatization”, as discussed by Joyce, this included those dynamics involved in the shaping of international legal form, discourses and processes with the aim to translate international legal work to global audiences.873 Mediatization praxis includes advocacy, techniques of naming and shaming, the presentation of evidence and victims’ narratives and different forms of framing of what ‘ought’ to be relevant for a general audience. Just as other forms of normative articulations, mass media also shaped the actions and performance of the OTP. Since the beginning of OTP’s operations, prosecutors valued media communications as a way to enhance their work. The first annual ICTY report

870 ICTY, IT-99-37. Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić & Stojiljkovic - Initial Indictment “Kosovo” (1999). 871 Associate Press, “Chief Prosecutor News Conference on Death of Milosevic,” March 12, 2006, https://www.youtube.com/watch?v=rbmfPadidfY. 872 Referring here to newspapers, radio, and television, including the reporters and journalists working for organizations engaged in such communication. Daniel Joyce, “Human Rights and the Mediatization of International Law,” Leiden Journal of International Law 23, no. 03 (September 2010): 508. 873 Daniel Joyce, “Human Rights and the Mediatization of International Law,” Leiden Journal of International Law 23, no. 03 (September 2010): 517.

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mentions that the deputy prosecutor’s relations with the press should “promote a positive attitude towards the tribunal” with a special focus on the OTP’s work.874 The second annual report, discussed further the constitution and implementation of an information service that would link the tribunal to “32 news agencies and to 344 outside contacts such as embassies, NGOs, universities, researchers and legal specialists”.875 The aim of the Press and Information Service (PIS) was to increase visibility and publicity while measuring the tribunal’s impact in the public opinion. In addition, PIS was charged to provide analysis of press releases over the tribunal’s work. PIS’ activities included the evaluation of the number of articles published about the tribunal and its organs, the topics of publications and the increase or decrease over media impact.876 The report endorsed the view that the ‘skepticism’ around the tribunal work was improved after the “publication of the first indictment (Nikolic) and the first public hearing (Tadic referral) at the beginning of November 1994”. Accordingly, the path towards credibility increased with “the publication on 13 February 1995 of the indictments of 21 suspects against whom arrest warrants were issued only checked the impatience for a while” Moreover, it stated that “several news agencies, convinced that the tribunal held at least the power of moral denunciation, made a demand: the Tribunal should do more, aim higher and strike harder”.877 Across this narrative, the legitimacy of the OTP and the ICTY was consolidated in the projection of an “image of a court in action”. For this purpose, the role of indictments was to “enhance credibility”. As the report stated, “thanks to the radio and television publicity resulting from the announcement of the names of highly placed suspects … the Tribunal literally took shape in the eyes of the man and woman” This enhanced credibility was expressed in the media reaction towards OTP’s prosecutions “The reports on the indictment of Karadic and Mladic were not only numerous, and from all over the world … even if the issue of execution

874 United Nations, “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 Since 1991.,” para. 163. 875 United Nations, “Second 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 Since 1991.,” para. 165. 876 Ibid., para. 165, 166, 167, 168, 169, 170. 877 Ibid., para. 177,178.

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of arrest warrants was raised and the impact of the decision upon the “peace- process” questioned, the validity of the indictments was not discussed. In the eyes of the press, the Tribunal no longer merely existed; it was doing what it was supposed to do, and in doing so had established its credibility.”878 When approaching mediatization praxis from the purview of non-legality, it is possible to see the extent to which indictment policy was raised and used for public OTP relations. As discussed in chapter three, Goldstone’s work was accompanied by a fanfare of publicity and his ‘pyramidal-strategy’ had a strong element of public validation. Similarly, Arbour’s actions during the Kosovo crisis and the response that she received at the Macedonian border (in front of international press) also situated the OTP as a real-time justice device in order to respond to concrete and pressing claims, she declared the OTP “had to be out there”. In the case of Del Ponte, it was observable that she combined diplomatic accommodation, economic inducement and a variety of mass media practices in order to communicate the needs, success and obstacles of the OTP. Her ‘indict-all–parties” strategy can be also read as being aimed at symbolizing and communicating what was important in terms of public perception. The above-sketched selective overview of other normative codes related to ICL is not in itself an exhaustive list for approaching non-legality. The point is to consider that other normative codes ‘run- through’ ICL in various forms and in constant bases and remain operative through every-day actions. It is in the possibility to assess these other ‘formations’ through the eyes of critical enquiry and interdisciplinary that this study hopefully contributes by providing a different scholarly perspective.

878 Ibid., paras. 182–83.

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Jurisprudence

ICJ. Military and Paramilitary activities in and against Nicaragua (NICARAGUA v. UNITED STATES OF AMERICA), (1986).

ICTY. IT-00-40-I. Prosecutor v. Plavšić - Initial Indictment, (2000). ———. IT-00-41. Prosecutor v. Ljubičić - Initial Indictment, (2000). ———. IT-01-42. Prosecutor v. Strugar, Jokić, Zec & Kovačević - Indictment, (2001). ———. IT-01-43. Prosecutor v. Obrenović - Initial Indictment, (2001). ———. IT-01-45. Prosecutor v. Gotovina - Amended Indictment, (2004). ———. IT-01-45-I. Prosecutor v. Gotovina - Indictment, (2001). ———. IT-01-46 & IT-04-76. Prosecutor v. Ademi & Norac, (2004). ———. IT-01-48-I. Prosecutor v. Halilović - Initial Indictment, (2001). ———. IT-01-50-I. Prosecutor v. Milošević - Initial Indictment “Croatia,” (2001). ———. IT-01-51-I. Prosecutor v. Milošević - Initial Indictment “Bosnia and Herzegovina,” (2001). ———. IT-02-56-I. Prosecutor v. Nikolić - Indictment, (2002). ———. IT-02-57-I. Prosecutor v. Popović - Indictment, (2002). ———. IT-02-59-I. Prosecutor v. Mrđja - Initial Indictment, (2002). ———. IT-02-61-I. Prosecutor v. Deronjić - Initial Indictment, (2002). ———. IT-02-62. Prosecutor v. Bobetko - Initial Indictment, (2002). ———. IT-03-66-I. Prosecutor v. Limaj, Bala, Musliu & Murtezi - Indictment, (2003). ———. IT-03-67. Prosecutor v. Šešelj - Initial Indictment, (2003). ———. IT-03-68-I. Prosecutor v. Orić - Initial Indictment, (2003). ———. IT-03-69. Prosecutor v. Stanišić & Simatović - Initial Indictment, (2003). ———. IT-03-72. Prosecutor v. Babić - Initial Indictment, (2003). ———. IT-04-74. Prosecutor v. Prlić, Stojić, Praljak, Petković, Corić & Pusić - Indictment, (2004). ———. IT-04-75-I. Prosecutor v. Hadžić - Initial Indictment, (2004). ———. IT-04-76. Prosecutor v. Norac - Indictment, (2004). ———. IT-04-81. Prosecutor v. Perisić - Initial Indictment, (2005). ———. IT-04-82. Prosecutor v. Boškoski & Tarčulovski - Initial Indictment, (2004). ———. IT-04-82-PT. Prosecutor v. Boškoski & Tarčulovski - Amended Indictment, (2005). ———. IT-04-83-PT. Prosecutor v. Delić - Indictment, (2005). ———. IT-04-84-I. Prosecutor v. Haradinaj, Balaj & Brahimaj - Indictment, (2005).

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———. IT-04-84-PT. Prosecutor v. Haradinaj, Balaj, Brahimaj - Amended Indictment, (2006). ———. IT-04-84-PT. Prosecutor v. Haradinaj, Balaj, Brahimaj - Revised Second Amended Indictment, (2007). ———. IT-04-84-T. Prosecutor v. Haradinaj, Balaj, Brahimaj - Fourth Amended Indictment, (2007). ———. IT-04-84-T. Prosecutor v. Haradinaj, Balaj, Brahimaj - Third Amended Indictment, (2007). ———. IT-05-86-I. Prosecutor v. Pandurević & Trbić - Initial Indictment, (2005). ———. IT-05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đorđević & Lukić - Amended Joinder Indictment, (2005). ———. IT-05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đorđević & Lukić - Second Amended Joinder Indictment, (2006). ———. IT-05-87-PT. Prosecutor v. Milutinović, Sainović, Ojadanić, Pavković, Lazarević, Đorđević & Lukić - Third Amended Joinder Indictment, (2006). ———. IT-94-1-I. Prosecutor v. Tadic & Borovnica - Initial Indictment, (1995). ———. IT-94-2-I. Prosecutor v. Nikolić - Initial Indictment, (1994). ———. IT-95-4-I. Prosecutor v. Meakić, Kvočka, Prcač, Radić, Kos, Gruban, Knežević, Zigić - Indictment, (1998). ———. IT-95-4-I. Prosecutor v. Meakić, Prcač, Gruban, Govedarica, Gruban, Kostić, Paspalj, Pavlić, Popović, Predojević, Savić, Babić, Janjić, Knežević & Šaponja - Initial Indictment, (1995). ———. IT-95-5-I Prosecutor v. Mladić & Karadžić, (ICTY 1995). ———. IT-95-8-I. Prosecutor v. Sikirica, Došen, Fuštar, Kulundžija, Banović, Banović, Janjić, Knežević, Kondić, Lajić, Šaponja & Timarac - Indictment, (1995). ———. IT-95-8-PT. Prosecutor v. Sikirica at al, (ICTY 1995). ———. IT-95-8-PT. Prosecutor v. Sikirica, Došen, Fuštar, Kulundžija, Banović, Banović, Knežević & Žigić - Redacted Indictment, (1998). ———. IT-95-9. Prosecutor v. Miljkovic, Simic, Simic, Tadic, Todorovic & Zaric - Initial Indictment, (1995). ———. IT-95-10-I. Prosecutor v. Jelisic & Cesic - Indictment, (1995). ———. IT-95-10-T. Prosecutor v. Jelisić– Judgment, (1999). ———. IT-95-11. Prosecutor v. Martic - Initial Indictment, (1995). ———. IT-95-12. Prosecutor v. Rajic - Initial Indictment, (1995). ———. IT-95-13a. Prosecutor v. Mrkšić, Radić & Šljivančanin - Initial Indictment, (1995). ———. IT-95-13a. Prosecutor v. Mrkšić, Radić, Šljivačanin & Dokmanović - Initial Indictment, (1996).

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———. IT-95-13a. Prosecutor v. Mrkšić, Radić, Šljivančanin & Dokmanović - First Amended Indictment, (1996). ———. IT-95-14. Prosecutor v. Blaškić - First Amended Indictment, (1996). ———. IT-95-14. Prosecutor v. Blaškić - Second Amended Indictment, (1997). ———. IT-95-14. Prosecutor v. Kordic, Blaskic, Cerkez, Santic, Skopljak & Aleksovski, (1995). ———. IT-95-14. Prosecutor v. Kordić, Blaškić, Čerkez, Šantić, Skopljak & Aleksovski - Initial Indictment, (1995). ———. IT-95-14. Prosecutor v. Zlato Aleksovski et al., (1995). ———. IT-95-16. Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Šantić, Alilović, Josipović, Katava & Papić - Initial Indictment, (1995). ———. IT-95-16-T. Prosecutor v. Kupreškić, Kupreškić, Kupreškić, Josipović, Papić & Šantić - Trial Judgment, (2000). ———. IT-95-17/1. Prosecutor v. Furundzija - Initial Indictment, (1995). ———. IT-95-18-I. Prosecutor v. Karadzic & Mladic - Initial Indictment, “Srebrenica,” (1995). ———. IT-96-20-I. Prosecutor v. Dukic - Indictment, (1996). ———. IT-96-21-A. Prosecutor v. Delalić, Mucić, Delić & Landžo - Appeal Chamber Judgment, (2001). ———. IT-96-21. Prosecutor v. Delalic, Mucic, Delic & Landzo - Initial Indictment, (1996). ———. IT-96-22. Prosecutor v. Erdemovic - Indictment, (1996). ———. IT-96-23-I. Prosecutor v. Gagović et al, (1996). ———. IT-99-37. Prosecutor v. Milošević, Milutinović, Šainović, Ojdanić & Stojiljkovic - Initial Indictment “Kosovo,” (1999).

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