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

from territories under Serb control, primarily accomplished through deportation and persecution—in
order to create conditions for future separation of these areas from the rest of the
country. 47 One half of Bosnia’s prewar population was forced to leave their homes by fleeing
the country or seeking protection in areas of Bosnia dominated by their own ethnic group.
In this setting, many worried that the Security Council’s action in creating the Tribunal
was a fig leaf for its failure to take more assertive steps to stanch the slaughter underway. 48
But the creation of an international war crimes court also enjoyed the enthusiastic support of
human rights advocates, who believed that the atrocities underway warranted the founding
of a Nuremberg-type tribunal. Their call for a tribunal “was electric within ex-Yugoslavia,”
inspiring civil society organizations in Bosnia to begin the treacherous but essential task of
documenting war crimes. 49
The predominantly Muslim government of Bosnia, too, welcomed the Security Council’s
historic effort to address atrocities. But it also had ample cause for concern: The resolutions
establishing the ICTY had been preceded by a blizzard of Security Council resolutions
irresolutely addressing the Bosnian crisis. 50 In this setting, Muslim leaders worried that the
Council’s action in creating the ICTY might salve the conscience of countries that were still
unprepared to take the action needed to stop the slaughter. 51
B. Early Investigations and Indictments
On its side, the fledgling ICTY faced myriad challenges to its work in Bosnia. Judges were not
in place until six months after the Tribunal was “created,” 52 and it took much longer—fully
14 months—to identify a candidate for prosecutor who would enjoy the support of a fractious
Security Council53 (and who would remain on the job for more than a few days—the length
of time the initial prosecutor stayed). 54 The Tribunal’s investigators had to gather evidence of
crimes committed in a zone of ongoing conflict, a challenge for which there was no playbook
from the postwar prosecutions in Nuremberg and Tokyo that were the principal precursors of
the ICTY. 55 Establishing a financially secure foundation for its work was another huge challenge
for the Tribunal, requiring endless attention by its senior officials. 56 Not least important,
the Tribunal was (and remains) dependent on states and international forces to carry
out arrests of those whom its prosecutor has indicted. While this has presented challenges
throughout the ICTY’s work, they were especially daunting in wartime Bosnia.
In this setting, the ICTY’s early indictments were directed against individuals who,
while responsible for chilling brutality, played minor roles in the overall architecture of mass
destruction. The reasons for this had less to do with prosecutorial strategy than pragmatic
pressures and constraints. Richard Goldstone, who was all but technically the first ICTY prosecutor,
57 explains in his memoir why the Office of the Prosecutor (OTP) issued its first indictment
against Dragan Nikolić, “a comparatively low-level” suspect. 58 Going into his first budget
24 BACKGROUND