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

groups are approximately the same size. 80 In exchange for considerable autonomy in RS, the
Serbs accepted in principle what they had for three and a half years fought against—a Bosnian
State that included RS.
The Bosnian government found one aspect of the territorial division particularly hard to
accept in Dayton: Srebrenica would remain under Serb control. Twelve years later, when the
International Court of Justice ruled that the Serb assault on Srebrenica was a genocide, some
Bosniak leaders urged that Srebrenica be wrested from RS. In their view, to maintain Serb
control over an area they had acquired through genocide was morally indefensible. 81
This issue was emblematic of a broader moral quandary at the heart of Dayton: Although
Serbs were awarded final control over less territory than that which they had acquired in war
(roughly 70 percent of Bosnian territory), the Serb entity by its nature seemed to ratify the
results of “ethnic cleansing.” To avoid this, Dayton assures all Bosnians the right to return to
their original homes. In Chapter IV, we address the question of whether and how arrests of
ICTY suspects might have affected implementation of this right.
The DPA also created an international governing structure, the Office of the High Representative
(OHR), that would be responsible for implementing the civilian provisions of the
peace accords. The OHR, acting under the authority of the Peace Implementation Council,
an international body guiding the peace process in Bosnia, 82 now also represents the European
Union. 83 Initially envisaged as a transitional structure that could be withdrawn when
the previously warring factions reconstructed a national government, the OHR mandate was
strengthened in 199784 and has been repeatedly extended in the face of strong ethnic division
in Bosnia. 85
E. The Post Dayton Peace
The history of post-Dayton Bosnia could have been very different if Karadžić and Mladić had
been brought to trial in The Hague. 86
Although IFOR was authorized to arrest individuals indicted by the ICTY and provide support
for other aspects of the civilian dimensions of the DPA, its commander resolved to avoid any
such missions, however compelling the need. 87 Officially, NATO’s policy was that its Bosnia
force would arrest those indicted by the ICTY if it came across them while carrying out its
duties but would not seek out suspects. 88 Several months into the peace operation, a U.S.
defense official told the New York Times: “We will take these people into custody if they surrender
to us, preferably with their hands up over their heads, or maybe if they’re turned in
by someone else.” But, he said, “I can’t imagine it would happen any other way … [W]e have
a much bigger mission in Bosnia.” 89 In practice, IFOR went out of its way to avoid arresting
suspects, reportedly waving Karadžić and other suspects through NATO checkpoints.
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