That Someone Guilty Be Punished - International Center for ...

In larger perspective, to the extent that the international community in general, and
the ICTY in particular, addressed local authorities on the subject of war crimes prosecutions,
their emphasis was overwhelmingly on the importance of national authorities fulfilling their
legal obligation to arrest those whom the ICTY had indicted and transfer them to The Hague.
In light of donor states’ more recent support for a hand-off from the ICTY to local courts, it
is easy to forget that, during the Tribunal’s early years, international efforts to assure justice
for Bosnia’s victims focused overwhelmingly on “the international rather than the national
justice system.” 704
2. Supervisory
In 1996, the relationship between the ICTY and Bosnia saw an important change, transforming
the ICTY’s role vis-à-vis Bosnian courts from one of primacy in a broader context of
concurrent jurisdiction to one of supervision and restraint. This relationship was to last for
eight years.
The ICTY’s supervisory role evolved as a solution to an early challenge to the fragile
peace secured at Dayton: In late January 1996, Federation authorities arrested two senior
Republika Srpska army officers—one of whom, General Ðjorde Ðjukić, was a close aide to
Ratko Mladić—after they took a wrong turn into Federation territory, 705 accusing the two men
of responsibility for war crimes. Although the Federation was legally entitled to arrest individuals
suspected of war crimes, its action in this instance was seen to “violate[] the free-movement
provisions of Dayton.” 706 The specter of arbitrary arrests had potentially broad repercussions
at the time of these arrests. As the OSCE recalled in a 2005 report, “[p]roviding for freedom of
movement [within Bosnia], especially to refugees and displaced persons, was crucial to the success
of holding free and fair municipal elections in September 1996, especially as candidates
and voters were being encouraged to stand and vote in their pre-conflict constituencies.” 707
The episode provoked what the New York Times described as “the most serious” dispute
“to arise between the Bosnian Serbs and the Bosnian government since the signing of the
Balkan peace agreement” one month earlier. 708 A British NATO officer stationed in Bosnia
described the arrests as “provocative and inflammatory.” 709 In this setting, the Bosnian government
asked the ICTY to question the detained Serbs to determine whether they should be
indicted. 710 Then ICTY Prosecutor Richard Goldstone sought the Serbs’ provisional arrest and
transfer to The Hague for questioning and possible indictment. 711
To avoid a repetition of this incident—in the words of Dayton peace negotiator Richard
Holbrooke, “to ensure that we would never again have to struggle with the consequences of
a surprise arrest” in Bosnia712 —the leaders of Bosnia, Serbia, and Croatia agreed during the
first post-Dayton Compliance Summit in Rome in mid-February 1996 that local authorities
would not arrest anyone on war crimes charges without first obtaining approval from the ICTY
prosecutor. 713 The ICTY’s Web site summarizes the process born of the Rome Agreement and
its achievements this way:
110 IMPACT ON DOMESTIC WAR CRIMES PROSECUTIONS