THE CONFLICTS OF THE FORMER YUGOSLAVIA IN THE COURTS Paul J. Magnarella University of Florida The brutality of the conflicts in the States of the former Punishment of the Crime of Genocide of 1948; and the Yugoslavia, especially Bosnia Herzegovina (B H), has Charter of the International Military Tribunal of 1945 aroused the indignation of the civilized world.1 After over ("Nuremberg Charter") (Para. 35 of UN Doc. three years of atrocities and a pounding of Serbian S/25704,1993). Articles 2 to 5 of the ICTY Statute military sites in B H by NATO war planes and Tomahawk empower the Tribunal to prosecute individuals accused of missiles, a peace accord brokered by US Assistant ordering or committing genocide or grave breaches of the Secretary of State Richard Holbrooke in Dayton, Ohio four Geneva Conventions, violating the laws or customs finally brought a tentative peace to the region. Behind of war, or being responsible for crimes against humanity, these headline events are a number of comparatively quiet which include the following crimes against any civilian court proceedings in Europe, the Balkans, and the United population committed during an international or internal States that may have a greater impact on the minds, armed conflict: murder, extermination, enslavement, strategies and aspirations of future political military deportation, imprisonment, torture, rape, persecutions on leaders than all of the weaponry dumped on this afflicted political, racial and religious grounds, and other inhumane land and tragic people. Judicial events are occurring on acts. Arguably, all of the crimes constituting "ethnic two levels: on the international plane at the UN Tribunal cleansing," a term closely associated with the conflicts in in The Hague, and on the domestic plane in numerous the former Yugoslavia, are contained in Articles 2 to 5 national courts. All are applying post World War II (see Petrovic 1994).3 humanitarian law created with the hope of curtailing, if not eliminating, the kind of inhumanity we have recently On November 1, 1994, ICTY Prosecutor Richard witnessed in too many corners of the world. Goldstone brought the Tribunal's first indictment, against Dragan Nikolic, a Bosnian Serb, who was the commander The UN Criminal Tribunal of the Susica prison camp in Vlasenica, in northeastern Bosnia. Nikolic allegedly participated directly in the The UN Security Council created the International beatings, torture and murder of camp prisoners. He was Criminal Tribunal for the Former Yugoslavia (ICTY) in charged with grave breaches of the Fourth Geneva 1993 with the aims of bringing war criminals to justice, Convention of 1949, violations of the laws and customs of discouraging further atrocities, and contributing to the war, and crimes against humanity. As of mid March 1996, restoration and maintenance of peace.2 Article 8 of the his arrest warrant had not been served. Tribunal's originating Statute extends the Tribunal's territorial jurisdiction "to the territory of the former On February 13, 1995 the Tribunal issued indictments Socialist Federal Republic of Yugoslavia, including its against 21 Bosnian and other Serbs who were charged land surface, airspace and territorial waters." Its temporal with committing atrocities in the summer of 1992 against jurisdiction extends from 1 January 1991 on. This Muslim and Croat civilian prisoners held at Omarska, a temporal and territorial scope authorizes the Tribunal to camp run by Bosnian Serbs in the Prijedor opstina consider serious crimes, regardless of the ethnicity (e.g., (district) in northwestern Bosnia. Bosnian Serbs had Serb, Croat, Bosnian, etc.) of their perpetrators or victims. reportedly confined over 3000 Bosnian Muslims and Croats in the Omarska camp from May 25 to August 29, The Security Council authorized the Tribunal to apply 1992 under brutal conditions. Many prisoners were "rules of international humanitarian law which are beyond murdered, raped, sexually assaulted, and severely beaten. any doubt part of customary law," and therefore The specific charges of the indictments included crimes authoritative law for all States (Para. 34 UN Doc. S/25704 against humanity, genocide, violations of the law or (1993)). Those portions of conventional international customs of war, and grave breaches of the Geneva humanitarian law that the Secretary General asserted were Conventions of 1949 (ICTY Indictments, 13 Feb. 1995). unquestionably part of international customary law are the laws applicable in situations of armed conflict as The Tribunal forwarded the arrest warrants to the relevant embodied in: the four Geneva Conventions of 1949; the authorities of the territories where the accused were Hague Convention (IV) Respecting the Laws and believed to be located. Except for Dusko Tadic, who was Customs of War on Land and the Regulations annexed being held in Germany, all of the accused were assumed thereto of 1907; the Convention on the Protection and to be in the Serbian controlled parts of the Republic of Bosnia Herzegovina. The authorities there refuse to lower level Bosnian Serbs were indicted for their alleged recognize the Tribunal or to hand over persons it has criminal activities in Bosanski Samac, Brcko, and indicted. Prijedor (ICTY Indictments, 25 July 1995). On November 16, 1995, the ICTY amended its indictments against In April 1995 the Tribunal, upon Prosecutor Goldstone's Karadzic and Mladic to include alleged direct formal request, asked the Bosnian government to defer to responsibility for atrocities committed in July 1995 the Tribunal its investigation and prosecution of a group against the Bosnian Muslim population of Srebrenica. of Bosnian Croats, including political and military leaders, suspected of having murdered over 100 Muslims Even though Serbian authorities do not acknowledge the in the Lasva valley of central B H between October 1992 jurisdiction of the Tribunal and refuse to cooperate with and May 1993. The B H government complied with the it, General Mladic did retain Greek attorney Alexandros request. Rule 9(iii) of the Tribunal's Rules of Procedure Lykourezos to formulate a legal defense (Reuters, Aug. and Evidence authorizes the Prosecutor to propose to a 10, 1995). Lykourezos is famous for defending such Trial Chamber that a formal request be made to a national notorious figures as former Greek banking tycoon George court asking it to defer its own investigations or criminal Koskotas, whose financial scandal helped bring down the proceedings to the Tribunal when they involve significant Greek Socialist government in 1989. In August, the factual or legal questions that may have implications for attorney told the press that he had obtained Mladic's file the Tribunal's own investigations or prosecutions. The from the Tribunal and had begun to study it. deferral request also asks the national authority to pass the results of its investigations over to the Tribunal's In reaction to these indictments, many Serbs have charged Prosecution Office. Persons being investigated are that the ICTY is simply an anti Serb creation without classified as "suspects," who may later be formally concern for crimes committed against Serbs by others. In indicted. Any persons who are tried by the Tribunal several press statements, Prosecutor Goldstone responded cannot be tried again for the same crimes by a national that his office's investigations into allegations of serious court. Hence, by complying with a deferral request, a violations of humanitarian law committed against Serb national government acknowledges its acceptance of the victims were being materially hampered by the low level Tribunal's primacy. of cooperation from the Yugoslavian government and the Serbian authorities in Knin and Pale. He said that his On July 25, 1995, the Tribunal announced its second office was also examining allegations of war crimes major set of indictments, against 24 Serbs, mostly committed by Muslim perpetrators and by members of the Bosnians. These alleged war criminals included Milan Croatian army. In March 1996, Goldstone announced that Martic (then president of the Croatian Serb administration indictments against some Muslims were forthcoming. of Knin), Radovan Karadzic (then president of the Bosnian Serb administration of Pale), and Ratko Mladic Certain politicians and news commentators have criticized (commander of the Bosnian Serb army). Other indictees the Tribunal for its indictment of Karadzic, Mladic, and included: commanders and interrogators of prison camps, Martic, who, they argue, are essential parties to any the deputy commander of the "Grey Wolves" (a para effective peace negotiations. Despite these criticisms, the military unit from Serbia), a police chief, and several Tribunal has shown its determination to bring these local Bosnian Serb politicians. Earlier, the B H alleged war criminals to justice. On August 2, 1995, the government had suspended its own judicial proceedings Tribunal conveyed a formal request to all UN members against these individuals and deferred their cases to the and Switzerland asking for information regarding any Tribunal at the latter's request. future international travel by these three indictees. Prosecutor Goldstone has stated that his strategy is to In the indictments all are accused of crimes against indict those in leadership positions, because he regards humanity, violations of the laws or customs of war and them as most responsible for war crimes (Schiller 1995: grave breaches of the Geneva Conventions. In addition, A1). Payam Akhavan (1995), a member of the Tribunal's Karadzic, Mladic, and two others are accused of the crime prosecution team, further explained that underlying the of genocide. More specifically, Martic is charged with prosecution's strategy is the assumption that creating the war crimes in connection with the firing of cluster bombs conditions for genuine and lasting reconciliation requires into the central part of Zagreb on May 2 and 3, 1995. that the various ethnic peoples of the former Yugoslavia Karadzic and Mladic are charged with crimes arising from be absolved of collective guilt for the horrific crimes that atrocities perpetrated against civilian populations have been instigated by their leaders.