Hilmi M. Zawati, “Politics vs. Justice: The Ethics of Humanitarian and

Diplomatic Intervention,” in Hilmi M. Zawati, The Triumph of Ethnic Hatred and

the Failure of International Political Will: Gendered Violence and Genocide in

the Former Yugoslavia and Rwanda (Lewiston, N.Y.: The Edwin Mellen Press,

2010) pp. 269-343.

Chapter Six

Politics vs. Justice: The Ethics of Humanitarian

and Diplomatic Intervention

“The lives of 800,000 Rwandans

were only worth risking the lives of

ten American troops.” 1

American officer

The ethno-national wars in the former Yugoslavia and Rwanda were a test

of the will of the international community to prevent or stop tragedy. The

subsequent international embarrassments placed international credibility in

question. As usual, politics and strategic interests overrode legal principles when

the international community sought to resolve conflicts in neglected parts of the

world. The United Nations, as well as the United States and the EC countries,

were remarkably timid when it came to dealing with the Yugoslav and Rwandan

conflicts before and during the crises. This ignominious failure was due to the

superpowers’ lack of political will and diminished strategic interests in both

countries, particularly after the end of the Cold War and the enforcement of the

New World Order.2 This chapter critically scrutinizes the international

1 R. Dallaire & B. Beardsley, Shake Hands with the Devil: The Failure of Humanity in

Rwanda (Toronto, Ont.: Random House Canada, 2003) 522 [hereinafter Dallaire].

2 Bosnia: Peace without Honour. Produced and Directed by BBC. Running Time 00:40:00.

British Broadcasting Corporation, 1995. (Videocassette); J. Gow, Triumph of the Lack of Will:

International Diplomacy and the Yugoslav War (New York, N.Y.: Columbia University Press,

270

community’s humanitarian and diplomatic failure in dealing with the crises in

both countries.

I. NATO’s “Bellum Justum”: Fighting for Values and a New

Internationalism

1. The Mounting Violence

In early 1998, the situation in Kosovo deteriorated when Milošević decided

to crack down on the UÇK, supported by Serb police troops and the Yugoslav

army, in order to prevent the fragmentation of the rump Yugoslavia and keep

Kosovo as an integral part of Serbia. This led to an escalation in violence leading

to the killing of hundreds of women, children, and elderly men, and the

displacement of 300,000 Kosovar civilians, 50,000 of whom fled into the

surrounding forests and mountains where they risked death from cold or

starvation.3

The continued Serb assaults on Kosovar Albanians drew the immediate

attention of the international community. Haunted by memories of the collective

blood baths in Bosnia-Herzegovina, the United States and allied European

governments discussed several ways to halt the violence and bring peace to

Kosovo by encouraging a dialogue between the warring factions. Following the

Serb crack-down, which left eighty-five Kosovar Albanians dead, foreign

ministers of the six Contact Group countries, formed of France, Germany, Great

Britain, Italy, Russia, and the United States, met in London, and requested the

1997) 46 [hereinafter Gow]; M. Barutciski, “Politics Overrides Legal Principles: Tragic

Consequences of the Diplomatic Intervention in Bosnia-Herzegovina, 1991-1992,” (1996) 11 The

American University Journal of International Law and Policy 767 [hereinafter Barutciski]; S.

Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War (Washington, D.C.: The

Brookings Institution, 1995) 273 [hereinafter Woodward].

3 A. Pavković, The Fragmentation of Yugoslavia: Nationalism in a Multinational State (New

York, N.Y.: St. Martin’s Press, 1997) 191 [hereinafter Pavković]; I. Daalder & M. O’Hanlon,

Winning Ugly: NATO’s War to Save Kosovo (Washington, D.C.: Brookings Institution Press,

2000) 22-23 [hereinafter Daalder]; J. Solana, “NATO’s Success in Kosovo,” (1999) 78:6 Foreign

Affairs 115-116 [hereinafter Solana].

271

Serbian government to stop its violence against Albanian civilians, withdraw

police forces from the province within ten days, allow humanitarian aid to

refugees and IDP, and establish communications with the UÇK’s leaders. The

ministers warned that their countries would impose economic sanctions and an

arms embargo on Serbia if the Serbian government failed to meet the

abovementioned demands. In spite of differences on how to approach the conflict,

the Contact Group’s vigilant, instantaneous and unified response to the crisis

confirmed a new Western policy regarding the Yugoslav conflict, which was in

no circumstances to allow a repeat of the Bosnian catastrophe.4

After the Serb’s offensive against UÇK strongholds in late July and early

August 1998, which forced more than 100,000 Kosovar Albanians from their

homes into the mountains and neighbouring towns, international concerns were

intensified by warnings of a humanitarian crisis on a vast scale. Following tough

negotiations that took a couple of weeks, the UN Security Council adopted

Resolution 1199 on 23 September 1998, demanding the FRY to implement

immediately the measures contained in the Contact Group statement of 12 June

1998, towards achieving a political solution to the situation in Kosovo. These

demands were included in paragraph 4 of the above resolution, which reads as

follows:

“(a) cease all action by the security forces affecting the civilian

population and order the withdrawal of security units used for

civilian repression; (b) enable effective and continuous international

monitoring in Kosovo by the European Community Monitoring

Mission and diplomatic missions accredited to the FRY, including

access and complete freedom of movement of such monitors to,

from and within Kosovo unimpeded by government authorities, and

expeditious issuance of appropriate travel documents to

international personnel contributing to the monitoring; (c) facilitate,

in agreement with the UNHCR and the International Committee of

the Red Cross (ICRC), the safe return of refugees and the IDP to

their homes and allow free and unimpeded access for humanitarian

4 Daalder, supra note 3, at 24-25; G. Dempsey, “Washington Kosovo Policy: Consequences

and Contradictions,” Policy Analysis (8 October 1998) 17; I. Daalder, Getting to Dayton: the

Making of America's Bosnia Policy (Washington, D.C.: Brookings Institution Press, 2000) 18-20.

272

organizations and supplies to Kosovo; (d) make rapid progress to a

clear timetable, in the dialogue referred to in paragraph (3) with the

Kosovo Albanian community called for in resolution 1160 (1998),

with the aim of agreeing confidence-building measures and finding

a political solution to the problems of Kosovo.” 5

Meanwhile, the American administration sent its special envoy, Richard

Holbrooke, to Belgrade on 5 October 1998, to demonstrate the West’s interest in

finding a peaceful solution to the conflict, and to deliver a strong message to

Milošević concerning the necessity of complying with the UN demands as stated

in Security Council Resolution 1199. One week after the arrival of Holbrooke in

Belgrade, the North Atlantic Council (NAC) convened (12 October 1998) and

approved the Activation Order for air operations against Yugoslav military assets.

By the end of October 1998, Holbrooke’s negotiations in Belgrade had allowed

him to conclude an agreement with Milošević that averted a humanitarian

catastrophe in Kosovo. The key element was Milošević’s compliance with the UN

demands and his acceptance of the deployment of 2,000 unarmed verifiers called

the Kosovo Verification Mission (KVM). The main task of the KVM, which

would operate under the control of the OSCE supported by NATO’s air

surveillance, was to verify compliance by all parties in Kosovo with the UN

Security Council’s Resolution 1199.6

5 J. Goshko, “U.S., Allies Inch Closer to Kosovo Intervention,” The Washington Post (23

September 1998) A21; UN Security Council’s Resolution 1199 (1998), Demanding that All

Parties, Groups and Individuals Immediately Cease Hostilities and Maintain a Cease-Fire in

Kosovo, Federal Republic of Yugoslavia, which would Enhance the Prospects for a Meaningful

Dialogue between the Authorities of the Federal Republic of Yugoslavia and the Kosovo Albanian

Leadership and Reduce the Risks of a Humanitarian Catastrophes (23 September 1998), UN Doc.

S/RES/1199 (1998), 38 I.L.M. 249-251 (1999).

6 Daalder, supra note 3, at 46-49; D. Buchan & G. Dinmore, “Envoy Looks to Close Kosovo

Deal,” Financial Times (13 October 1998) 1; J. Perlez, “A U.S. Message to Milošević Turns into

Full-Dress Talks,” The New York Times (10 October 1998) A26; Kosovo Verification Mission

Agreement between the North Atlantic Treaty Organization and the Federal Republic of

Yugoslavia, (1998), annex, UN Doc. S/1998/991 (23 October 1998); M. Walker & R. Norton-

Taylor, “Kosovo Crisis: How a Fragile Peace was Won,” The Guardian (14 October 1998) 15;

Pavković, supra note 3, at 192; R. Smith, “Dramatic Kosovo Negotiations had a Predetermined

Last Act,” The Washington Post (15 October 1998) A32; R. Smith, “Talks Continue as Serbs

Prepare for NATO Airstrikes,” The Washington Post (11 October 1998) A39; R. Smith, “U.S.

273

Although the Hollbrooke-Milošević October agreement had apparently

defused the explosive situation in Kosovo, it still left the province on the brink of

war for several reasons: (a) the negotiations that led to the agreement were

directed towards finding an acceptable solution to temporary ethnic problem but

not the fundamental issues that caused the tragic situation; (b) the agreement was

neither clear enough nor silent enough on a number of issues such as the role of

the KVM and what exactly the observers had to monitor or its demand for a

cessation of hostilities affecting the civilian population, although it kept silent

regarding the forces attacking the UÇK; (c) the agreement lacked sufficient means

of enforcement as the US administration had excluded the possibility of deploying

NATO troops on the ground; and (d) although the Security Council called on all

sides to cease hostilities in Kosovo, the agreement excluded the UÇK and other

Kosovar parties from the arrangements.7

A few weeks after signing the October cease-fire agreement, it became

clear that neither side was prepared to adhere to its terms. Milošević was reluctant

to give up territories that were under the control of his security forces and

paramilitary groups, before its withdrawal from the province by the end of

October, to the UÇK, and he continued his campaign of “piecemeal military

assaults.” On the other side, the UÇK tried to bring NATO into confrontation with

the Yugoslav government by provoking Serbian militants to commit more

atrocities against Kosovar Albanian civilians. These incidents served as a

Envoys, Milošević Seek Accord to Avert Airstrikes,” The Washington Post (10 October 1998)

A18; R. Smith & G. Lardner Jr., “Accord on Kosovo Remains Elusive,” The Washington Post (12

October 1998) A14; Solana, supra note 3, at 116.

7 The agreement also demanded the withdrawal of security units used for civilian repression,

but it didn’t determine the number of forces that would stay in Kosovo or the shape of their future.

See Daalder, supra note 3, at 50-57; J. Perlez, “Milošević Accepts Kosovo Monitors,” The New

York Times (14 October 1998) A1; M. O’Connor, “Kosovo Rebels Gain Ground under NATO

Threat,” The New York Times (4 December 1998) A3; R. Holbrooke, “Putting the Pressure on

Milošević: An Interview with Richard Holbrooke,” Interview by N. Gardels, Los Angeles Times

(22 October 1998) B9; S. Myers, “Serb Forces Leaving Kosovo, but at a Slow Pace, U.S. Says,”

The New York Times (19 October 1998) A9.

274

prologue to rapidly escalating violence, in early January 1999, when the UÇK

seized eight Yugoslav soldiers. Serbian forces responded by surrounding UÇK

strongholds and by massacring forty-five Kosovar Albanian civilians in Račak, a

town located at 23 km south of Priština.8

The cold-blooded massacre at Račak served as a turning point in the ethnic

conflict over Kosovo. William Walker, the head of the KVM, placed the blame on

Serbian forces, and called upon the ICTY prosecutors to investigate the killings.

Media reports and photos of the massacre shocked the international community.

The US president’s advisors decided that NATO should threaten the Yugoslav

government with air strikes against Serbian military sites in Kosovo and

Yugoslavia if the government failed to sign a peace agreement with the Kosovar

Albanians, although Western leaders agreed that no military action would take

place against Yugoslavia before all diplomatic efforts had been exhausted. In the

meantime, General Wesley Clark, NATO’s top commander, and General Klaus

Naumann, head of NATO’s military council, visited Belgrade and warned

Milošević that NATO would start bombing Yugoslavia if he failed to comply with

the October agreement signed with Richard Holbrooke.9

In light of the above developments, the US administration and its NATO

allies were clearly thinking of a non-military solution in Kosovo. The European

8 B. Gellman, “The Path to Crisis: How the United States and its Allies went to War,” The

Washington Post (18 April 1999) A31, reprinted in International Herald Tribune (19 April 1999)

2; Daalder, supra note 3, at 63-64; G. Dinmore, “Yugoslavs Eject U.S. Diplomat, Massacre

Investigators Thwarted,” The Washington Post (19 January 1999) A1; L. Cohen, Serpent in the

Bosom: The Rise and Fall of Slobodan Milošević (Boulder, Colo.: Westview Press, 2001) 307

[hereinafter Cohen]; Pavković, supra note 3, at 192-193; R. Smith, “Serbs Tried to Cover up

Massacre, Kosovo Reprisal Plot Bared by Phone Taps,” The Washington Post (28 January 1999)

A1; R. Smith, “This Time, Walker wasn’t Speechless: Memory of El Salvador Spurred Criticism

of Serbs,” The Washington Post (23 January 1999) A15; T. Judah, Kosovo: War and Revenge

(New Haven, Conn.: Yale University Press, 2000) 193-194 [hereinafter Judah].

9 A. Bellamy, “Human Wrongs in Kosovo, 1974-1999,” in K. Booth, ed., The Kosovo

Tragedy: The Human Rights Dimensions (Portland, Or.: Frank Cass, 2001) 121 [hereinafter

Bellamy]; Cohen, supra note 8, at 307-308; Daalder, supra note 3, at 63-64; K. Hudson, Breaking

the South Slav Dream: The Rise and Fall of Yugoslavia (London: Pluto Press, 2003) 167-169

[hereinafter Hudson]; Pavkovic, supra note 3, at 192.

275

NATO leaders believed that a Dayton-like peace conference could stop violence

and deter Milošević’s aggression. Accordingly, the Contact Group convoked the

Yugoslav government, under the threat of NATO air strikes, and the Kosovar

Albanians’ representatives, to negotiate a peace plan in Rambouillet, near Paris.

The conference was held on 6 February 1999, and was chaired jointly by Robin

Cook, the British foreign minister, and Hubert Vedrine, the French foreign

minister. The Albanian delegation was headed by Hashim Thaçi, the UÇK leader,

with Ibrahim Rugova as his deputy. Milošević refused to attend the conference,

and delegated Milan Milutinović, the president of Serbia, to lead the Serbian

negotiating team.10

Following the Dayton model, the presidency of the conference provided a

draft of a peace agreement, subsequently called the “Rambouillet Accords.” The

agreement contained a detailed constitution for Kosovo, as well as a number of

political and military implementations, which offered, in its final version, a three-

year period of political autonomy for Kosovar Albanians, followed by a free

referendum to determine the political future of the province. Accordingly, Kosovo

would have its own legal and political systems, and be represented in the Serbian

and any federal assemblies. Moreover, the UÇK would be demilitarized within

four months and the Serbian security forces replaced by 28,000 NATO-led

international armed troops to maintain security. The agreement allowed NATO to

function as another government throughout Yugoslavia given that appendix B,

Article 8 gave NATO troops complete freedom of movement, access and action

throughout Yugoslavia’s territory, air space, and waters, including Kosovo, in

performing their duties. The Serbian delegation rejected the agreement and

considered it as an excuse for the NATO to attack Yugoslavia. Talks came to a

10 Cohen, supra note 8, at 310; D. Priest, “Allies Balk at Bombing Yugoslavia,” The

Washington Post (23 January 1999) A18; Daalder, supra note 3, at 72-77; J. Perlez, “Albright

Brings Foes Face to Face at Kosovo Talks,” The New York Times (15 February 1999) A1; J.

Perlez, “As Kosovo Talks Continue, NATO Troops Plan Lags Badly,” The New York Times (9

February 1999) A6; N. Kempster, “U.S. Pushes 2-Track Plan for Kosovo Peace,” Los Angeles

Times (28 January 1999) A4; Pavković, supra note 3, at 193.

276

halt on 23 February 1999, and the conference presidency granted the Albanian

delegation three weeks to return home for further consultations. On 18 March

1999, the conference reconvened in Paris, where four of the Albanian delegation

decided to sign the agreement, whereas the Serbs insisted on their position in spite

of all individual and collective attempts to convince Milošević to comply. After

the collapse of the Rambouillet talks and the failure of the last Milošević-

Holbrooke talks on 22 March 1999, the KVM observers withdrew leaving Kosovo

on the brink of war.11

2. On the Brink of War: This Time the Wolf Was There!

Milošević believed that NATO’s warnings of a bombing campaign against

Yugoslavia, in the event of non-compliance with the UN Security Council’s

resolutions and the Contact Group’s demands, were nothing more than empty

threats and a political weapon used by NATO leaders to enforce their political

agenda. William Cohen, the US secretary of defence, endorsed the same

perspective when he said: “We knew from the beginning that [there would be] no

air campaign, and certainly there was no ability at that time to conduct a ground

operation.” Even Holbrooke’s clear message to Milošević in their last–minute

meeting, on 23 March 1999, was not taken seriously by the latter. Holbrooke

11 C. Trueheart, “Serbian Leader Rejects Kosovo Peace Force, Autonomy Plan,” The

Washington Post (16 February 1999) A11; Cohen, supra note 8, at 314-316; C. Whitney, “Ethnic

Albanians Move to Accept Kosovo Pact,” The New York Times (16 March 1999) A8; C. Whitney,

“Serbs Reinforce Kosovo Forces, Clouding Talks,” The New York Times (17 March 1999) A1;

Daalder, supra note 3, at 76-78; J. Perlez, “Kosovo Albanians, in Reversal, Say they will Sign

Peace Pact,” The New York Times (24 February 1999) A1; J. Perlez, “Talks on Kosovo near

Breakdown: Deadline in Today,” The New York Times (23 February 1999) A8; J. Perlez, “U.S.

Negotiator at the Kosovo Talks Visits Milošević,” The New York Times (17 February 1999) A3; J.

Rupnik, “Dayton comme précédent: considérations régionales,” dans M-F. Allain, dir., L’Ex-

Yougoslavie en Europe: de la faillite des démocraties au processus de paix, Paris, L’Harmattan,

1997, à la p.177; M. Vrbetic, The Delusion of Coercive Peacemaking in Identity Disputes: The

Case of the former Yugoslavia (Ph. D., The Fletcher School of Law and Diplomacy, Fufts

University, 2004) 436 [hereinafter Vrbetic] ; N. Chomsky, The New Military Humanism: Lessons

from Kosovo (Monroe, Me.: Common Courage Press, 1999) 107; P. Shenon, “U.S. says Kosovo

Rebels are Ready to sign Peace Pact,” The New York Times (9 March 1999) A3; Pavković, supra

note 3, at 194; Rambouillet Accords: Interim Agreement for Peace and Self-Government in

Kosovo (23 February 1999), annex, UN Doc. S/1999/648 (7 June 1999); “The West versus

Serbia,” The Economist (27 March 1999) 43.

277

explicitly told Milošević that NATO would start bombing Yugoslavia if he didn’t

accept the position that NATO and the Contact Group allies, including the

Russians, had put forward at Rambouillet. Milošević built his miscalculations on

the following assumptions, which convinced him that a severe air campaign could

never be conducted by NATO against his country: (a) the conventional political

divisions among NATO members, which would bar any consensus on using force

against Yugoslavia; (b) Milošević counted on Russia as a strategic ally to

undermine any attempt to attack Yugoslavia; (c) he believed that Serbians would

accept the consequences of his rejection of the NATO plan, even if it would lead

to the bombing of Yugoslavia, rather than abandon Kosovo to the Albanians or to

an international administration; and (d) Milošević was keenly aware that the

United States and its European NATO allies preferred a political solution to the

problem, as military intervention would be costly and would bring more violence

and instability to the region.12

On 23 March 1999, one day before NATO started bombing Yugoslavia, the

Serbian National Assembly (SNA) presented a counter-proposal condemning the

withdrawal of the KVM members from Kosovo, and offering a “wide-ranging

autonomy” for Kosovo within a sovereign Yugoslavia, as well as rejecting the

deployment of “foreign troops” in the province. NATO leaders, who had

intentionally designed Rambouillet as a provocation and a pretext to bomb

Yugoslavia, as Henry Kissinger argued, rejected the counter-proposal and the

situation further deteriorated when NATO started Operation Allied Force (OAF)

on the following day.13

12 A. Barth, American Military Commitments in Europe: Power, Perceptions, and Neoclassical

Realism (Ph. D., School of Arts and Sciences, Georgetown University, 2004) 318 [hereinafter

Barth]; Cohen, supra note 8, at 318-320; E. Herring, “From Rambouillet to the Kosovo Accords:

NATO’s War against Serbia and its Aftermath,” in K. Booth, ed., The Kosovo Tragedy: The

Human Rights Dimensions (Portland, Or.: Frank Cass, 2001) 226-227 [hereinafter Herring].

13

D. MacDonald, “The Fire in 1999? The United States, NATO and the Bombing of

Yugoslavia,” in A. Jones, ed., Genocide, War Crimes and the West: History and Complicity

(London: Zed Books, 2004) 279 [hereinafter MacDonald]; Herring, supra note 12, at 227-228;

278

Two parallel military campaigns were launched: the notorious Operation

Horseshoe and the OAF. After the Kosovar Albanians signed the Rambouillet

Accords on 18 March 1999, and before the beginning of the NATO air strikes on

23 March 1999, Serbian forces and paramilitaries launched a wide offensive

against the UÇK and Kosovar Albanian civilians, who were forced from their

homes and fled the province in massive refugee waves. It was estimated that more

than 700,000 Albanians eventually crossed the borders to Albania and Macedonia,

while another half million were internally displaced. Serb leaders believed that

Operation Horseshoe would counter an expected NATO ground attack in Kosovo.

Many of these Albanian refugees were in fact killed during the NATO

operation.14

Contrary to NATO leaders’ expectations that Milošević would surrender

after a few days of bombing, the OAF continued seventy-nine days, from 24

March to 10 June 1999, inflicting severe damage on military and civilian sites in

Kosovo and Serbia. It was estimated that NATO aircraft made approximately

40,000 sorties, eighty percent of which were carried out by US air forces. The

United States even dropped 31,000 depleted uranium warheads in addition to

cluster bombs on Yugoslavia. NATO’s attacks were not restricted to military

targets, but extended to schools, hospitals, homes, public transportation, and

communication facilities. NATO sources estimated Serbian military losses as a

direct result of bombing at nearly 5,000 military personnel killed and another

10,000 wounded. Moreover, Human Rights Watch maintained that about 500

civilians were killed by the NATO bombardment.15

Judah, supra note 8, at 184-185; W. Shawcross, Deliver Us from Evil: Warlords and Peace

Keepers in a World of Endless Conflict (London: Bloomsbury, 2001) 329.

14

Cohen, supra note 8, at 321; Herring, supra note 12, at 229; Pavković, supra note 3, at 195.

15

A. Laursen, “NATO, the War over Kosovo, and the ICTY Investigation,” (2002) 17:4

American University International Law Review 788 [hereinafter Laursen]; Cohen, supra note 8, at

328; Herring, supra note 12, at 230-233; Hudson, supra note 9, at 131-133; MacDonald, supra

note 13, at 280-287.

279

On 3 June 1999, the SNA approved a peace agreement proposed by Victor

Chernomyrdin, President Yeltsin’s special envoy, and Martti Ahtisaari, the

Finnish president, who represented the European Union. This agreement allowed

both the NATO leaders and Milošević to claim victory. The agreement, which

was embodied in the Security Council’s Resolution 1244, ended the NATO

bombing campaign as of 10 June 1999, and required the withdrawal of all

Yugoslav forces from Kosovo. Under the aegis of the UN Security Council, the

agreement established an international security force, consisting of NATO and

other countries’ forces, including Russia, to be called the Kosovo Force (KFOR),

and a civilian presence to establish an interim international administration to

ensure the autonomy of Kosovo within Yugoslavia. It is worth mentioning that

the agreement left out two major issues rejected by the Serbian delegation at

Rambouillet: Appendix B, giving free movement to NATO forces throughout

Yugoslavia, and the stipulation of a referendum after three years to determine the

political future of the province. Moreover, the above resolution didn’t condemn

NATO’s action against Yugoslavia.16

3. Justifying Operation Allied Force

When the NATO air campaign began, Tony Blair, the British Prime

Minister, gave a series of public statements justifying the air strikes. He pretended

that the aim of the NATO action was to prevent Milošević from continuing his

oppression against innocent civilians and to protect Western values and a new

16 A. Schwabach, “NATO’s War in Kosovo and the Final Report to the Prosecutor of the

International Criminal Tribunal for the Former Yugoslavia,” (2001) 9 Tulane Journal of

International and Comparative Law 171 [hereinafter Schwabach]; Cohen, supra note 8, at 342;

Hudson, supra note 9, at 134; K. Wortzel, “The Jurisdiction of an International Criminal Tribunal

in Kosovo,” (1999) 11 Pace International Law Review 387 [hereinafter Wortzel]; M. Mandel,

“Politics and Human Rights in International Criminal Law: Our Case against NATO and the

Lessons to be Learned from it,” (2001) 25:1 Fordham International Law Journal 100 [hereinafter

Mandel]; MacDonald, supra note 13, at 280; J. Peters, et al., European Contributions to Operation

Allied Force: Implications for Transatlantic Cooperation (Santa Monica, Calif.: RAND, 2001) 9

[hereinafter Peters]; Pavković, supra note 3, at 196; UN Security Council’s Resolution 1244

(1999), A Political Solution to the Kosovo Crisis (10 June 1999), UN Doc. S/RES/1244 (1999)

[hereinafter UN Security Council’s Resolution 1244].

280

internationalism. He asserted that the war was not to preserve territory, but

humanity. Failure to stop ethnic cleansing in Kosovo, as Blair put it, would

undermine Western values, the credibility of Western institutions, and the NATO

alliance. President Clinton, for his part, endorsed the same views when he

addressed the American nation on the night that bombing started. He claimed that

inaction would lead to further massacres, tens of thousands of refugees, and

thousands of victims crying for revenge.17

NATO’s stated political and military objectives in launching the air strikes

were to: (a) halt a humanitarian catastrophe by deterring further attacks on

Kosovar Albanian civilians; (b) obtain a cease-fire between the UÇK and the Serb

forces, and achieve a political agreement with the Serbian government; (c)

decrease the power of the Serb forces to launch a war and force it to withdraw

from Kosovo; (d) allow an international peacekeeping force into the province to

secure the return of refugees and displaced people to their homes; and (e) help the

Kosovar Albanians achieve autonomy, as mentioned in the Rambouillet

Accords.18

NATO’s use of force against the FRY without the UN Security Council’s

authorization, however, provoked much debate over the legality of the action.

Although some scholars and legal experts argued that NATO’s bombing

17 A. Roberts, “NATO’s ‘Humanitarian War’ over Kosovo,” (1999) 41:3 Servival 107

[hereinafter Roberts]; C. Bird, et al., “NATO Unleashes Massive Air and Missile Strikes Across

Defiant Yugoslavia: The Onslaught Begins,” The Guardian (25 March 1999) 1; Cohen, supra note

8, at 324; D. Kritsiotis, “The Kosovo Crisis and NATO’s Application of Armed Force against the

Federal Republic of Yugoslavia,” (2000) 49:2 International and Comparative Law Quarterly 340-

341 [hereinafter Kritsiotis]; Solana, supra note 3, at 117-118.

18

Cohen, supra note 8, at 322-323; Daalder, supra note 3, at 101; M. Cottier, “Did NATO

Forces Commit War Crimes during the Kosovo Conflict? Reflections on the Prosecutor’s Report

of 13 June 2000,” in H. Fischer, et al., eds., International and National Prosecution of Crimes

under International Law: Current Developments (Berlin: Arno Spitz GmbH, 2001) 518

[hereinafter Cottier]; MacDonald, supra note 13, at 279-280; N. Butler, “NATO: From Collective

Defence to Peace Enforcement,” in A. Schnabel & R. Thakur, eds., Kosovo and the Challenge of

Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship

(Tokyo: United Nations University Press, 2000) 279 [hereinafter Bulter]; Pavković, supra note 3,

at 194.

281

campaign had breached the UN Charter, others found that NATO’s air strikes

were legitimate, as, in certain instances, justice may prevail over the rule of law.

In difficult cases, where humanitarian intervention is necessary, it is imperative

for states to act outside the law, whether individually or collectively, to avert a

tragic humanitarian catastrophe.19

Even if the OAF was not explicitly authorized under Chapter VII, Article

42 of the UN Charter, there were many implicit legal principles that legitimized it:

(a) the UN Security Council’s Resolutions 1160 and 1199, adopted with respect to

the Kosovo crisis, stated that the situation in Kosovo constituted a threat to peace

and security in the region, and that additional measures would have to be taken if

the FRY failed to make constructive progress towards a peaceful solution to the

Kosovar conflict (a number of legal experts interpreted “additional measures” as

an explicit allusion to future use of armed forces to restore peace and security in

Kosovo); (b) the UN Security Council’s Resolution 1244 of 10 June 1999, which

suspended the OAF, didn’t condemn NATO’s action or refer to it as illegal; and

(c) Article 2 of the UN General Assembly Resolution 3314 (XXIX) on the

“Definition of Aggression” and the Assembly’s Resolution 377, A (v) “Uniting

for peace,” which, though not legally binding, might be considered as indirect

support of an ex post facto authorization to use armed force against the FRY.

Moreover, the UK Foreign and Commonwealth Office suggested20

in a note

19 B. Simma, “NATO, the UN and the Use of Force: Legal Aspects,” (1999) 10 European

Journal of International Law 1 [hereinafter Simma]; C. Gray, “The Legality of NATO’s Military

Action in Kosovo: Is there a Right of Humanitarian Intervention?,” in S. Yee & W. Tieya, eds.,

International Law in the Post-Cold War World: Essays in Memory of Li Haopei (London:

Routledge, 2001) 243 [hereinafter Gray]; G. Sulyok, “The Theory of Humanitarian Intervention

with Special Regards to NATO’s Kosovo Mission,” in F. Bieber & Ž. Daskalovski, ed.,

Understanding the War in Kosovo (London: Frank Cass, 2003) 159 [hereinafter Sulyok]; N.

Wheeler, Reflections on the Legality and Legitimacy of NATO’s Intervention in Kosovo,” in K.

Booth, ed., The Kosovo Tragedy: The Human Rights Dimensions (Portland, Or.: Frank Cass,

2001) 145 [hereinafter Wheeler].

20

Definition of Aggression, GA Res. A/RES/3314 (XXIX) (14 December 1974); Question of

Definition Aggression, GA Res. A/RES/377A (3 November 1950); Roberts, supra note 17, at 106;

Simma, supra note 19, at 4; Sulyok, supra note 19, at 156-157; UN Security Council’s Resolution

1160 (1998), Imposing Arms Embargo on the Federal Republic of Yugoslavia for the Purposes of

Fostering Peace and Stability in Kosovo (31 March 1998), UN Doc. S/RES/1160 (1998)

282

circulated to NATO allies that “force can be justified on the grounds of over-

whelming humanitarian necessity without a UN Security Council’s resolution.”

The United States and its NATO allies maintained that the OAF was legally

and morally justified for the following reasons: (a) the Yugoslav forces and

paramilitary groups had committed crimes against humanity and violated the

norms of the Genocide Convention of 1948, and the 1949 Geneva Conventions,

and so it would be immoral to tolerate such acts simply because a veto by one of

the permanent members of the Security Council might render military

intervention impossible; (b) the Serb forces’ assault on Kosovar Albanians would

constitute a direct threat to regional peace and security; (c) the famous Security

Council Resolution 1199 stating that the explosive “situation in Kosovo posed a

threat to regional security”; (d) the Bosnian precedent, when the Security Council

authorized the use of force to deter Bosnian Serb aggression, and established the

ICTY to bring the war crimes suspects to justice; and (e) NATO’s bombing

campaign was not meant to preserve Yugoslavian territory, but to stop the

Yugoslav army and Serb militia’s inhuman attacks on the Kosovar Albanians,

while Kosovo remained an autonomous part of the FRY.21

[hereinafter UN Security Council’s Resolution 1160]; UN Security Council’s Resolution 1199,

supra note 5; UN Security Council’s Resolution 1203 (1998), Endorsing and Supporting the

Agreements Signed in Belgrade on 16 October 1998 between the Federal Republic of Yugoslavia

and the OSCE (24 October 1998), UN Doc. S/RES/1203 (1998) [hereinafter UN Security

Council’s Resolution 1203]; UN Security Council’s Resolution 1244, supra note 16.

21

A. Sofaer, “International Law and Kosovo,” (2000) 36:1 Stanford Journal of International

Law 13-14 [hereinafter Sofaer]; “Crisis in the Balkan: Clinton’s Remarks on Balkan War - We

have Achieved a Victory,” The New York Times (11 June 1999) A 15; J. Duursma, “Justifying

NATO’s Use of Force in Kosovo?” (1999) 12 Leiden Journal of International Law 287

[hereinafter Duursma]; S. Murphy, “Contemporary Practice of the United States Relating to

International Law,” 93 American Journal of International Law 167-170 [hereinafter Morphy]; S.

Wheatley, “The NATO Action against the Federal Republic of Yugoslavia: Humanitarian

Intervention in the Post-Cold War Era,” (1999) 50:4 Northern Ireland Legal Quarterly 496

[hereinafter Wheatley]; Simma, supra note 19, at 7; UN Security Council’s Resolution 1199,

supra note 5; UN Security Council’s Resolution 1244, supra note 16.

283

4. Was the OAF a Lawful Action?

A satisfactory answer to this question would require an examination of the

OAF’s legal position in the light of a number of international and regional legal

instruments and conventions. On the international level, the UN Charter

authorized the use of force or the threat of its use under two conditions: to

maintain or restore international peace and security, and in self-defence in case of

armed attack against the country. It is clear that the United States and its NATO

allies had violated the principal rules of international law as the OAF was neither

authorized by the Security Council nor undertaken in self-defence. Moreover,

NATO’s bombing campaign violated Article 2(4) of the UN Charter, which

stipulates that all members of the United Nations should refrain from using force

or threatening to use force against the territorial integrity or political

independence of any state.22

Even the Rambouillet Agreement, which was proposed and used by NATO

leaders as a pretext to bomb Yugoslavia, was inconsistent with Articles 51 & 52

of the 1980 Vienna Convention on the Law of Treaties (VCLT). Both articles

declare that any agreement established under the threat of use of force should be

considered void. Furthermore, NATO bombing caused severe damage to a

number of Serbian religious shrines and historical sites in Kosovo and Serbia,

thus violating the 1954 Hague Convention for the Protection of Cultural Property

in the Event of Armed Conflict. Similarly, the NATO action violated the 1949

Geneva IV. On the other hand, NATO’s attacks on chemical factories, petroleum

storage areas and refineries, as well as the use of radioactive depleted uranium,

violated the norms of a number of international conventions and protocols to

protect the natural environment. These conventions include: the Montreal

22 R. Falk, “Kosovo, World Order and the Future of International Law,” (1999) 4:93 American

Journal of International Law 848 [hereinafter Falk]; R. Thomas, “NATO, the UN, and

International Law,” (1999) 10:3 Mediterranean Quarterly 34 [hereinafter Thomas]; Sulyok, supra

note 19, at 150; United Nations Charter, (1945), Signed at San Francisco, 26 June 1945. 59 Stat.

1031, T.S. 993, 3 Bevans 1153, (Entered into force on 24 October 1945) [hereinafter UN Charter].

284

Protocol on Substances that Deplete the Ozone Layer, 1987; the 1977 Protocol I

Additional to the Geneva Conventions; the 1976 Convention on the Prohibition of

Military or other Hostile use of Environmental Modification Techniques; the UN

Framework Convention on Climate Change; and the Vienna Convention for the

Protection of the Ozone Layer, 1985.23

The OAF had even violated NATO’s own treaty, which authorized the use

of force only if a NATO member state was attacked. In the Kosovo case, none of

the NATO member states had been attacked or threatened with attack by

Yugoslavia. By the same token, NATO’s action had violated the norms of the

Helsinki Final Act of 1975, which states that participating states must respect

each other’s territorial integrity and frontiers, including the former Yugoslavia, a

party to this European agreement.24

Based on the above laws, Yugoslavia brought several lawsuits before the

ICJ on 29 April 1999, concerning the legality of the use of force by the ten NATO

states involved in the bombardment campaign. These states were: Belgium,

23 Convention on the Prohibition of Military or Other Hostile use of Environmental

Modification Techniques, Online: International Committee of the Red Cross, (10 December 1976)

<http://www.icrc.org> (Accessed on: 7 August 2005); Convention Relative to the Protection of

Civilian Persons in Time of War (Geneva IV), Opened for signature on 12 August 1949, 6 U.S.T.

3516, T.I.A.S. No.3365, 75 U.N.T.S. 287 (Entered into force on 21 October 1950) [hereinafter

Geneva IV]; The Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict, Online: International Committee of the Red Cross, (14 May 1954) <http://www.icrc.org>

(Accessed on: 7 August 2005); Montreal Protocol on Substances that Deplete the Ozone Layer,

1987, Online: United Nations Environmental Programme, <http://www.unep.org/ozone/Montreal-

Protocol/Montreal Protocol2000.shtml> (Accessed on: 7 August 2005); Protocol I Additional to

the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of

International Armed Conflicts, Opened for signature on 12 December 1977, 1125 U.N.T.S. 3

(Entered into force on 7 December 1978) [hereinafter Protocol I]; Thomas, supra note 22, at 36-

40; The UN Framework Convention on Climate Change, Adopted in 1992 and entered into force

in 1994 (New York, N.Y.: United Nations Publications 1992); The Vienna Convention for the

Protection of the Ozone Layer, 1985 (New York, N.Y.: United Nations Environment Programme,

2001); Vienna Convention on the Law of Treaties, 1980, Entered into force on 27 January 1980,

United Nations Treaty Series, vol. 1155, p.331.

24

Final Act, Online: Conference on Security and Co-Operation in Europe, (Helsinki, 1 August

1975) <http://www.hri.org/docs/Helsinki75.html> (Accessed on: 7 August 2005) [hereinafter final

Act]; NATO Handbook (Brussels: NATO Office of Information and Press, 1992) 13; Thomas,

supra note 22, at 35 & 38.

285

Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United

Kingdom, and the United States. Yugoslavia requested provisional measures

demanding that the above states stop their air strikes and refrain from using or

threatening to use force against the FRY. In its applications, Yugoslavia accused

the NATO states of violating obligations not to: (a) use force against another

state; (b) intervene in the internal affairs of another state; (c) violate the

sovereignty of another state; (d) attack civilian populations, and historical and

cultural sites during armed conflict; (e) cause environmental pollution; (f) violate

fundamental human rights and freedoms; (g) use prohibited weapons and weapons

of mass destruction; and (h) inflict conditions of life that would cause the physical

destruction of the Serbian nation. Between 10 and 12 May 1999, all parties gave

their oral pleadings. On 2 June 1999, the ICJ rejected the ten requests for

provisional measures, and dismissed the cases against the United States and

Spain, citing a lack of jurisdiction.25

25 A. Schwabach, “Yugoslavia v. NATO, Security Council Resolution 1244, and the Law of

Humanitarian Intervention,” (2000) 27:1 Syracuse Journal of International Law and Commerce

83-84 [hereinafter Schwabach]; Application of Yugoslavia, Legality of Use of Force (Yugoslavia v.

Belgium), [1999] International Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/

idocket/iybe/ iybeframe.htm> (Accessed on: 2 August 2004); Application of Yugoslavia, Legality

of Use of Force (Yugoslavia v. Canada), [1999] International Court of Justice (29 April 1999)

<http://www.icj-cij.org/icjwww/idocket/iyca/iycaframe.htm> (Accessed on: 2 August 2004);

Application of Yugoslavia, Legality of Use of Force (Yugoslavia v. France), [1999] International

Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/idocket/iyfr/iyfrframe.htm>

(Accessed on: 2 August 2004); Application of Yugoslavia, Legality of Use of Force (Yugoslavia v.

Germany), [1999] International Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/

idocket/iyge/iygeframe.htm> (Accessed on: 2 August 2004); Application of Yugoslavia, Legality

of Use of Force (Yugoslavia v. Italy), [1999] International Court of Justice (29 April 1999)

<http://www.icj-cij.org/icjwww/idocket/iyit/iyitframe.htm> (Accessed on: 2 August 2004);

Application of Yugoslavia, Legality of Use of Force (Yugoslavia v. Netherlands), [1999]

International Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/idocket/iyne/

iyneframe.htm> (Accessed on: 2 August 2004); Application of Yugoslavia, Legality of Use of

Force (Yugoslavia v. Portugal), [1999] International Court of Justice (29 April 1999)

<http://www.icj-cij.org/icjwww/idocket/ iypo/iypoframe.htm> (Accessed on: 2 August 2004);

Application of Yugoslavia, Legality of Use of Force (Yugoslavia v. Spain), [1999] International

Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/idocket/iysp/iyspframe.htm>

(Accessed on: 2 August 2004); Application of Yugoslavia, Legality of Use of Force (Yugoslavia v.

U.K.), [1999] International Court of Justice (29 April 1999) <http://www.icj-cij.org/icjwww/

idocket/iyuk/iyukframe.htm> (Accessed on: 2 August 2004); Application of Yugoslavia, Legality

of Use of Force (Yugoslavia v. U.S.), [1999] International Court of Justice (29 April 1999)

<http://www.icj-cij.org/icjwww/idocket/iyus/iyusframe.htm> (Accessed on: 2 August 2004); Case

286

II. Peace without Justice

1. Politics Overrides Legal Principles

In Rwanda, little in the way of regional or international effort was made to

resolve the conflict after the RPF invasion of 1 October 1990. A Belgian peace

mission, headed by Willy Martens, the Belgian Prime Minister, had visited

Kenya, Rwanda, and Uganda to assess the problem and call for the formation of

an inter-African peacekeeping force, a project that was suppressed by the UN

secretary-general, who informed AOU representatives that the superpowers would

not support any humanitarian operation that they couldn’t control. A few days

later, a regional meeting was held in Arusha, Tanzania, in the presence of the

presidents of Burundi, Rwanda, Tanzania, Uganda, Zaire, and representatives of

the OAU and the RPF, to negotiate a cease-fire and a lasting peace for the

Rwandan conflict. The discussions concentrated on major issues including a

cease-fire, 26

the rule of law, national unity and democracy, power sharing,

integrating the RPF into the national army, and settling the refugees’ problem.

Concerning Legality of Use of Force (Yugoslavia v. Belgium), Order of 2 June 1999, [1999] 38

I.L.M. 950 at 957; Case Concerning Legality of Use of Force (Yugoslavia v. Canada), Order of 2

June 1999, [1999] 38 I.L.M. 1037 at 1055; Case Concerning Legality of Use of Force (Yugoslavia

v. France), Order of 2 June 1999, [1999] 38 I.L.M. 1059 at 1069; Case Concerning Legality of

Use of Force (Yugoslavia v. Germany), Order of 2 June 1999, [1999] 38 I.L.M. 1088 at 1095;

Case Concerning Legality of Use of Force (Yugoslavia v. Italy), Order of 2 June 1999, [1999] 38

I.L.M. 1088 at 1100; Case Concerning Legality of Use of Force (Yugoslavia v. Netherlands),

Order of 2 June 1999, [1999] 38 I.L.M. 1101 at 1117; Case Concerning Legality of Use of Force

(Yugoslavia v. Portugal), Order of 2 June 1999, [1999] 38 I.L.M. 1126 at 1131; Case Concerning

Legality of Use of Force (Yugoslavia v. Spain), Order of 2 June 1999, [1999] 38 I.L.M. 1149 at

1157; Case Concerning Legality of Use of Force (Yugoslavia v. United Kingdom), Order of 2 June

1999, [1999] 38 I.L.M. 1167 at 1181; Case Concerning Legality of Use of Force (Yugoslavia v.

United States of America), Order of 2 June 1999, [1999] 38 I.L.M. 1188 at 1197; D. Bandow,

“NATO’s Balkan Disaster: Wilsonian Warmongering Gone Mad,” (1999) 10:3 Mediterranean

Quarterly 76 [hereinafter Bandow]; Kritsiotis, supra note 17, at 350; S. Nambiar, “NATO

Celebrates its Fiftieth Anniversary by Destroying Yugoslavia,” (1999) 10:3 Mediterranean

Quarterly 16 [hereinafter Nambiar]; Sulyok, supra note 19, at 150-151.

26

B. Jones, “Civil War, the Peace Process, and Genocide in Rwanda,” in T. Ali & R.

Matthews, eds., Civil Wars in Africa: Roots and Resolution (Montreal: McGill-Queen’s University

Press, 1999) 62 [hereinafter Jones]; C. Clapham, “Rwanda: The Perils of Peacemaking,” (1998)

35:2 Journal of Peace Research 200-201 [hereinafter Clapham] ; C. Crocker, “Afterward:

Strengthening African Peacemaking and Peacekeeping,” in D. Smock, ed., Making War and

287

This meeting came to nothing and failed to achieve any of the above goals.

Accordingly, it was followed by a series of summits. On 19 February 1991, a

meeting convened between the Presidents of Rwanda, Tanzania, and Uganda,

resulted in the Dar-es-Salam Declaration, which was witnessed by Salim A.

Salim, the Secretary-General of the OAU, and by representatives of Zaire’s

president and the UNHCR. In this declaration, Rwandans accepted in principle

the necessity for reaching a cease-fire through negotiations. Under the auspices of

the OAU and the Communité économique des pays des grands lacs (CEPGL),

another meeting was held on 29 March 1991 in N’Sele, Zaire. At this meeting, a

preliminary agreement for an initial cease-fire and deployment of the Neutral

Military Observer Group (NMOG), under the authority of the OAU and the

leadership of Zaire, was reached. The monitoring force was, however, never

deployed; the N’Sele cease-fire agreement collapsed after few days and fighting

renewed in April between the RPF and Rwandan government forces. During the

OAU’s annual conference, held in Abuja, Nigeria, in June 1991, the OAU called

for a summit under its direction to settle the Rwandan conflict. The summit was

held later in September 1991, at Gbadolite, Zaire. Although this meeting was

followed shortly afterwards by the first direct and official negotiations between

the warring factions, nothing was achieved. The failure of the OAU and regional

diplomacy to resolve the Rwandan conflict was due to a lack of political will 27

on

the part of the international community to enforce peace, and to the warring

factions’ lack of trust and unwillingness to reach a lasting settlement.

Waging Peace: Foreign Intervention and Conflict Resolution in Africa (Washington, D.C.: U.S.

Institute for Peace, 1993) 263-270 [hereinafter Crocker]; D. Kamukama, Rwanda Conflict: Its

Roots and Regional Implications, 2nd

ed. (Kampala, Uganda: Fountain Publishers, 1997) 52

[hereinafter Kamukama]; G. Prunier, The Rwanda Crisis: History of a Genocide (New York,

N.Y.: Columbia University Press, 1995) 108 [hereinafter Prunier].

27

B. Jones, “Intervention without Borders: Humanitarian Intervention in Rwanda 1990-1994,”

(1995) 24:2 Millennium 227; Clapham, supra note 26, at 200-201; Jones, supra note 26, at 62-63;

Prunier, supra note 26, at 110.

288

In spite of the OAU-CEPGL failure to bring peace and security to Rwanda,

which was deeply affected by the negative American role, on the one hand, and

the partial French role, on the other, some analysts viewed the Dar-es-Salam

Declaration and the N’Sele and Gbadolite agreements as preliminary steps

towards the Arusha process, and a legitimate reason for taking the Rwandan issue

from its regional framework into the international arena. As has already been

explained, the United States had neither strategic, political nor economic interests

in Rwanda. An American diplomat justified the negligent American role by

saying: “we didn’t have a dog in that fight.” Consequently, throughout the

Rwandan conflict, the American role was marginal and negative. By contrast,

France played a substantial role in the Rwandan case but in direct support of the

Rwandan regime. Later on, France was accused of fostering genocide and of

protecting the perpetrators.28

The international community was successful in concluding the APA in the

summer of 1993, but failed to implement it. After the eruption of war in the

aftermath of the murder of President Habyarimana on 6 April 1994, the

international community relied heavily on the UNAMIR leadership to secure a

cease-fire in Kigali and throughout Rwanda. In the first meeting held at the Hôtel

des Diplomates in Kigali, on 9 April 1994, between General Dallaire and

Théodore Sindikubwabo, the newly proclaimed Rwandan president, the latter

raised three serious issues: (a) the recognition of his government by the United

Nations and the international community; (b) helping him to establish direct talks

with the RPF; and (c) supporting his government to establish a cease-fire. General

Dallaire, who refused to recognize this genocidal government, was hampered by

two critical considerations: the ongoing killing of civilians in Kigali and the

surrounding area, and the reluctance of the RPF, which was rapidly advancing

throughout the country, to negotiate. During the deteriorating situation and

massive killings, the UN Secretary-General suggested the reinforcement and

28 Clapham, supra note 26, at 202; Jones, supra note 26, at 64-65.

289

change of mandate of the UNAMIR to force the warring parties to conclude a

cease-fire agreement. Accordingly, the UN Security Council adjusted the mandate

of the UNAMIR twice between 21 April and 17 May 1994, to: (a) play an

intermediary role between warring parties in Rwanda to secure a cease-fire; (b)

contribute to the security and protection of the IDP, refugees, and civilians at risk;

and (c) provide security in support of the distribution of relief supplies and

humanitarian operations. None of these mandates was ever fully achieved due to

the fall in the number of UNAMIR troops after the withdrawal of the Belgian

contingent, and the lack of information and technical support.29

Deeply concerned over the rapid advancement of RPF forces in Rwanda,

the interim genocidal government hastened to draft a cease-fire agreement and

forward it to the RPF through General Dallaire, who met with General Kagamé,

the commander of the RPF, on 18 April 1994, to negotiate it. The RPF ignored the

draft in spite of its fine-sounding norms, and continued its advance towards

Kigali, believing that the government had offered this agreement to gain time to

prepare itself for a conclusive counter offensive. Later on, the UN Secretary-

General sent his assistant for peace-keeping operations, together with his military

advisor, on a special mission to Rwanda to help the UNAMIR in initiating

negotiations between the warring parties. The UNAMIR and the Secretary-

General’s representatives sent a draft document on 27 May 1994 to the Rwandan

government and RPF leaders regarding the cessation of hostilities and the ending

of massacres in Kigali and in other regions in Rwanda. A meeting was held in the

UNAMIR’s headquarters between the warring factions, but negotiations collapsed

again. Finally, a cease-fire was achieved when the RPF declared an end to the war

after capturing Kigali and most of Rwanda. However, a vengeful killing campaign

29 J. Castonguay, “In Search of a New Cease-Fire, April-July 1994,” in H. Adelman & A.

Suhrke, eds., The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire (New Brunswick,

N.J.: Transaction Publishers, 1999) 275-276 [hereinafter Castonguay]; UN Security Council’s

Resolution 918 (1994), Demanding that All Parties to the Conflict Immediately Cease Hostilities,

Agree to a Cease-Fire, and Bring an End to the Mindless Violence and Carnage Engulfing

Rwanda (17 May 1994), UN Doc. S/RES/918 (1994).

290

was then carried out by RPF fighters and paramilitaries against the defeated Hutu

under the eyes of UNAMIR troops.30

Following the eruption of war in the former Yugoslavia, the international

community found itself faced with one setback after another while searching for a

political solution to the crisis. The international response to the war had been

governed by the major powers, which played critical individual and collective

diplomatic roles in managing the crisis. The Yugoslav war was subject to

conflicting international interpretations, motivations, and involvements,

depending on the objective facts on the ground, as well as on the political interests

of the great powers. There were three major problems that hindered international

efforts to halt the war: the lack of consistency and unpreparedness on the part of

the international community; the reluctance of the great powers to forcefully

impose a settlement; and the unwillingness of the warring factions to reach a

settlement or a lasting peace.31

The above analysis demonstrates that the international community could

have played a more effective role in managing the Yugoslav conflict if it had

enforced the norms of the international humanitarian and human rights

conventions and treaties without regard for its political interests. The EC had

played a prominent role in breaking up multinational Yugoslavia on the principle

of the national sovereignty of the seceded republics. The EC became

diplomatically involved in the Yugoslav quagmire when it established an

Arbitration Commission, consisting of the presidents of five EC constitutional

courts, to deal with legal problems resulting from the dissolution of the SFRY.

While the commission rejected the Bosnian president’s request for recognition,

claiming that the Serbian members of the presidency hadn’t associated themselves

30 Castonguay, supra note 29, at 276-277; Kamukama, supra note 26, at 64; “Rwanda: A Sort

of Peace,” The Economist 332:7875 (6 August 1994) 35.

31

Gow, supra note 2, at 189-190 & 202-203; V. Einagel, “Lasting Peace in Bosnia?: Politics

of Territory and Identity,” in O. Tunander, et al., eds., Geopolitics in Post-Wall Europe: Security,

Territory and Identity (London: SAGE Publications, 1997) 235 [hereinafter Einagel].

291

with the independence declaration, and called for a referendum of all Bosnian

citizens to be carried out under international supervision, the EC member states

did in fact recognize the independence of Slovenia and Croatia on 15 January

1992, disregarding the commission’s opinion that the latter’s record on

democracy, rule of law, and human rights was so poor as to fail the basic criteria.

The German government, which was sympathetic to Croatian and Slovenian

independence, had informed the EC members at a meeting held on 16 December

1991, that if the EC did not recognize the independence of Croatia and Slovenia,

Germany would proceed to recognize them by itself. Similarly, the United States

was sympathetic to the independence of Bosnia-Hercegovina and supported its

president’s run for independence, although he had signed the Lisbon Agreement

with the representatives of the other two constituent nations to partition Bosnia-

Herzegovina among them. With US support and encouragement, the Bosnian

president publicly renounced the Agreement and proceeded on the path to full

independence in spite of the Serbs’ objections. The result was a fully fledged

ethnic war that the EC and the United States failed to prevent or stop.32

The United States and the EC spent the first half of 1992 debating who

would lead an international intervention to deal with the Bosnian dilemma, and

how to approach it. Rhetorically, both Americans and Europeans favoured the

unity and integrity of Bosnian territory, but they never committed any military

32 A. Pellet, “Note sur la commission d’arbitrage de la conférence européenne pour la paix en

Yougoslavie,” (1991) 37 Annuaire Francais de Droit International 329; A. Sanguinetti, “L’oubli

choquant du droit international: Faux-fuyants européens en Bosnie,” Le Monde diplomatique

(January 1995) 3; Barutciski, supra note 2, at 767, 773-774 & 781; Conference on Yugoslavia

Arbitration Commission: Advisory Opinion No. 4 (1992), 31 I.L.M. 1501, at 1511; D. Binder,

“U.S. Policymakers on Bosnia Admit Errors in Opposing Partition in 1992,” The New York Times

(29 August 1993) 10; European Community: Deckaration on Yugoslavia and on the Guidelines on

the Recognization of New Sates, 16 December 1991, (1992), 31 I.L.M. 1485, at 1486; Gow, supra

note 2, at 62; M-F. Allain, dir., L’Ex-Yougoslavie en Europe: de la faillite des démocraties au

processus de paix, Paris, L’Harmattan, 1997, à la p.33; S. Terrett, The Dissolution of Yugoslavia

and the Badinter Arbitration Commission: A Contextual Study of Peace-Making Efforts in the

Post-Cold War World (Burlington, Vt.: Ashgate, 2000) 121 [hereinafter Terrett]; M. Weller, “The

International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,” (1992)

86:3 American Journal of International Law 587 [hereinafter Weller]; Woodward, supra note 2, at

278.

292

force to protecting this state of affairs. The attitude of the international

community was clear from its lack of interest in acting to stop war in Croatia and

prevent it from spreading to Bosnia-Herzegovina. The EC attributed this failure to

the bad timing of the war, since Europe’s post-Cold War institutions, including

the CSCE crisis-management mechanisms, were not yet ready to act. In spite of

the Bosnian President’s urgent appeals at the CSCE conference held in Helsinki in

July 1992, for military aid and deployment of Western forces along Bosnia’s

borders, the United States and British governments gave preference to their

strategic interests over moral considerations and restricted the role of the Western

governments to delivering humanitarian aid and keeping far away from being

dragged into the conflict. By ignoring the explosive situation in Bosnia-

Herzegovina and other Yugoslav republics, the major powers had repeatedly

reinforced the causes leading to ethnic war and eventually to ethnic partition.33

After the outbreak of war in Slovenia, the UN Secretariat was reluctant to

agree to any UN intervention in the conflict, considering the war an internal

matter, and arguing that Slovenia was not a member of the United Nations.

Following the subsequent failure of the EC to solve the problem and end the

conflict, the UN Security Council adopted Resolution 713, concluding that the

situation in Yugoslavia constituted a threat to international peace and security,

and appointed Cyrus Vance, the former US Secretary of State, as UN mediator in

the conflict and the secretary-general’s personal envoy for Yugoslavia.34

33 “Bosnia: A Peace Still to Win,” The Economist 337:7945 (16 December 1995) 47; “Ex-

Yugoslavia: Rivals in Greed and Hatred,” The Economist 327:7811 (15 May 1993) 62; P. Cohen,

“Ending the War and Securing Peace in Former Yugoslavia,” in S. Meštrović, ed., Genocide after

Emotion: The Postemotional Balkan War (London: Routledge, 1996) 41 [hereinafter Cohen];

Woodward, supra note 2, at 274-275.

34

B. Simms, Unfinest Hour: Britain and the Destruction of Bosnia (London: The Penguin

Press, 2001) 137 [hereinafter Simms]; M. Pejanović, Through Bosnian Eyes: The Political

Memoir of a Bosnian Serb (West Lafayette, Ind.: Purdue University Press, 2004) 170 [hereinafter

Pejanović]; United Nations, Disarmament and Conflict Resolution Project: Managing Arms in

Peace Processes, Croatia and Bosnia-Herzegovina (New York, N.Y.: United Nations, UN

Institute for Disarmament Research, 1996) 20 [hereinafter Disarmament]; UN Security Council’s

Resolution 713 (1991), Supporting the Cease-Fire Agreements of 17 and 22 September 1991;

Urging Peaceful Settlement through Negotiation at the Conference on Yugoslavia; Deciding that

293

The Vance-Owen plan of January 1993 was a complete failure. The plan

overlooked the continued genocide and ethnic cleansing of the Bosnian Muslims

and justified its appeasement of the Serbian aggressors. Ignoring the data

available from the Austro-Hungarian Archives in the Vienna Cadastre Office that

70 percent of the land owned by Bosnian Muslims until 1918, the plan rewarded

Serbs with the bulk of Bosnia-Herzegovina by claiming that Serbs were the

owners of 60 percent of the land. This unreasonable claim served as a blueprint

for further ethnic cleansing, and legitimized Serbian and Croatian capture of

Bosnian Muslim land.35

The Vance-Owen plan, which was considered the most significant peace

plan drafted before Dayton, had aimed at the fragmentation and partition of

Bosnia-Herzegovina among the three major warring parties. It was used by the

nationalist leaders of all parties to advance their own political agendas rather than

to end the war. The Vance-Owen plan never received the necessary support of the

major powers, particularly the United States, in building a basis for a lasting

settlement. The lack of political will and commitment on the part of the

international community to enforce any agreement that could be reached had

encouraged the warlords to reject the plan. The plan included very basic and

States shall Enforce a Weapons Embargo against Yugoslavia (25 September 1991), UN Doc.

S/RES/713 (1991), 31 I.L.M. 1427 (1992).

35

B. Nelan, “Serbia’s Spite: Milošević should be Pleased, the West’s Peace Plan will Reward

his Aggression by Giving him Almost Everything he Wants,” Time (18 January 1993) 22-23; B.

Tanović, “The Prospects for Peace in Bosnia,” (1994) 15:1-2 Journal of the Institute of Muslim

Minority Affairs 70 [hereinafter Tanović]; “The Bloodiness of Partition,” The Economist

329:7831 (2 October 1993) 54; “Bosnia’s Glimmer of Peace,” The Economist 326:7795 (23

January 1993) 45; D. Owen, “A Conversation with David Owen: The Future of the Balkans,”

Foreign Affairs 72 (1993) 3 [hereinafter Owen]; D. Owen, Balkan Odyssey (New York, N.Y.:

Harcourt Brace & Company, 1995) 91 [hereinafter Balkan Odyssey]; I. Traynor, “Running for

Safety in Sarajevo: Peace Plan Gives Mostly Muslim City to Croats,” The Gazette (30 April 1993)

A1 & A2; J. Graff, “A Peace Made in Hell,” Time (6 September 1993) 31; “Last Chance in

Bosnia: There is no Just Peace, and Perhaps no Peace at All,” The Economist 329:7840 (4

December 1993) 13; “Peace in the Hands of Unpeaceful Serbs,” The Economist 326:7793 (9

January 1993) 41; “Plan de paix pour la Bosnie,” Le Devoir (3 mai 1993) A1; “Le Plan Vance-

Owen est mort,” La Presse (17 mai 1993) A1.

294

general principles for a constitution, rules for an interim presidency, and called for

fair and free elections, but no agreement on how to achieve them. 36

Moreover, it

did not clearly address the right of return of refugees who had been forcefully

hounded from their homes during war.

2. Shaking Hands with the Monster

The abject failure of the international community to bring an end to the

sufferings of the Bosnian and Rwandan peoples, enforce the international criminal

justice system, and bring war-crimes suspects to justice, was due to the fact that

the major powers, particularly the United States—which dominated the

international order—were reluctant to take any steps unless oil or capital interests

were involved. Referring to Karadžić, who was invited to the Vance-Owen peace

talks in October 1992 together with Milošević, as official guests of the United

Nations and the EC, to negotiate the division of Bosnia-Herzegovina, Haris

Siladžić, at that time the Bosnian foreign minister and head of the Bosnian

delegation said: “If you kill one person, you’re prosecuted; if you kill ten people,

you’re a celebrity; if you kill a quarter of a million people, you’re invited to a

peace conference.”37

36 A. Krauze, “After Owen-Vance,” New Statesman & Society (7 May 1993) 5; “Bosnia: They

Call it Peace,” The Economist 328:7826 (28 August 1993) 44; E. O’Ballance, Civil War in Bosnia,

1992- 1994 (New York, N.Y.: St. Martin’s Press, 1995) 118 [hereinafter O’Ballance]; L. Burg &

P. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention

(Armonk, N.Y.: M. E. Sharpe, 1999) 256-259 [hereinafter Burg]; N. Atiyas, “Mediating Regional

Conflicts and Negotiating Flexibility: Peace Efforts in Bosnia-Herzegovina,” (1995) 542 Annals

of the American Academy of Political & Social Science 194 [hereinafter Atiyas]; “La Paix sur

papier,” La Presse (4 mai 1993) B2; A. Gruda, “Les Serbes de Bosnie rejecttent le plan Vance-

Owen,” La Presse (26 avril 1993) B3.

37

Later on, in his opening statement at the second panel of a symposium on the practical

implications of universal jurisdiction, held at the UCLA School of Law on 7 March 2003, Reed

Brody, a special counsel with Human Rights Watch, said something similar to Silajdžić saying:

“We used to say that if you kill one person, you go to jail; if you kill 20 people, they put you in an

insane asylum; and if you kill 20,000 people, you get invited to a peace conference, or you get an

amnesty, or you die in your sleep.” See F. Boyle, “UN Abets Genocide in Rwanda,” Online:

Twatch-L (1998) <TWATCH-L@LISTSERVE.ACSU.BUFFALO.EDU> (Received on: 25

September 1998); R. Brody, “Universal Jurisdiction - Practical Implications of Universal

Jurisdiction,” (2003) 8 UCLA Journal of International Law and Foreign Affairs 71; “Symposium:

Justice and Sovereignty: Implications of the International Criminal Courts: Panel: Universal

295

When war had spilled over the borders of Croatia into Bosnia-Herzegovina,

and shocking pictures of ethnic cleansing, Serb death camps, terrible news and

testimonies of systematic mass rape of Muslim women and other atrocities

committed by Serb forces and paramilitaries, began circulating in the world’s

media, the international community found itself at a crossroads for the second

time since the “Desert Storm Operation” of January-February 1991 forced the

Iraqi army to withdraw from Kuwait. It had to take “all necessary measures,”

including military action, to enforce its humanitarian principles and save this

small European nation from being eliminated, or turn a blind eye to events and

leave the Bosnians on the edge of a precipice.38

Recalling paragraph 2 of its Resolution 678 (29 November 1990), which

authorized UN member states to use all necessary means to oblige Iraq to

withdraw its forces from Kuwait, the Security Council adopted Resolution 770

(13 August 1992) authorizing the use of “all necessary measures” to assure the

delivery of humanitarian aid to refugees and the besieged people of Bosnia. On

the other hand, the international community took a diplomatic initiative, calling

for a greater international involvement in the Yugoslav conflict, when President

Mitterrand of France introduced the idea of a “broader international conference”

during the World Economic Summit in Munich on 7 July 1992.39

Jurisdiction: Practical Implications of Universal Jurisdiction,” (2003) 8 UCLA Journal of

International Law and Foreign Affairs 72; T. Reeves, “The Pinochet Precedent: Legal Obstacles

and New Approaches to Prosecuting Crimes against Humanity,” (2001) 8 Human Rights Brief 33.

38

M. Libal, Limits of Persuasion: Germany and the Yugoslavia Crisis, 1991- 1992 (Westport,

Conn.: Praeger, 1997) 95 [hereinafter Libal]; O’Ballance, supra note 36, at 79; P. Szasz and A.

Rubin, “The International Conference on the Former Yugoslavia and the War Crimes Issue,”

(1993) The American Society of International Law, Proceedings of the Annual Meeting 29;

Special Report on the Rape of Muslim Women ‘Rape and Slow Death of Muslim Women’.

Produced and Directed by Jean Brown. Running Time 00:04:18. Independent Television Network

(INT), 1993. (Videocassette).

39

Paragraph 2 of the Security Council’s Resolution 678 (29 November 1990) reads:

“Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before

15 January 1991 fully implements, as set forth in paragraph (1) above, the above resolution, to use

all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant

296

Consequently, the British government, then holding the EC presidency,

called for the holding of a conference, jointly run by the EC and the United

Nations, in London on 26-27 August 1992, bringing together more than thirty

countries and international organizations, including the leaders of the FRY,

Bosnian Serbs, and Bosnian Muslims. The London Conference brought the UN to

centre-stage and marked the end of the European Community Conference on

Yugoslavia (ECCY), chaired by Lord Carrington, who resigned and handed over

his position as EC Special Envoy to Lord David Owen, a former British Foreign

Secretary and an outstanding politician. Carrington, who was pushed aside, had

called for several weeks before the convening of the London Conference for the

use of air strikes against the Bosnian Serbs. After a year of European

unproductive diplomacy, Carrington had come to believe that European efforts

were not enough to solve the Bosnian problem without the involvement of the

United Nations.40

The main aims of the London Conference, co-chaired by John Major, the

British Prime Minister and President of the Council of Europe (CE), and Boutros

Boutros-Ghali, the UN Secretary-General, were: (a) helping refugees to return

home and assuring the delivery of humanitarian aid; (b) ensuring the respect of

human rights; (c) mobilizing international pressure for a permanent solution to the

problem; and (d) increasing international pressure on the Serbs to stop their

aggression against Bosnian Muslims and abide by the principles laid down by the

EC and the OSCE. In the meantime, the French and German delegations

presented the conference with the following demands: (a) that the UN embargo

resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace

and security in the area.” See Gow, supra note 2, at 226; Libal, supra note 38, at 96; UN Security

Council’s Resolution 678 (1990), Demanding Iraq to comply Fully with the UN Security Council’s

Resolution 660 (1990) and All Subsequent Relevant Resolutions (29 November 1990), UN Doc.

S/RES/678 (1990); UN Security Council’s Resolution 770 (1992), Demanding that Fighting

Cease in Bosnia and Herzegovina; Demanding Access by the ICRC to All Camps, Prisons and

Detention Centers (13 August 1992), UN Doc. S/RES/770 (1992), 31 I.L.M. 1468 (1992).

40

Gow, supra note 2, at 225; Libal, supra note 38, at 96; O’Ballance, supra note 36, at 84.

297

against Serbia and Bosnian Serbs be tightened in a more efficient way; (b) that the

presence of Yugoslavia in international organizations be terminated as the SFRY

had ceased to exist and as the newly formed FRY (Serbia and Montenegro) was

not yet recognized; (c) that the Serbs’ heavy weapons surrounding cities be placed

under international control; (d) that the UN Security Council’s Resolution 770,

which speaks of using “all necessary means” to secure the delivery of

humanitarian aid to civilians affected by war, be enforced, (e) that “Safe Areas” in

certain areas of Bosnia-Herzegovina be created to help the IDP, who were forced

to leave their homes forcefully; (f) that a “No-Fly Zone” be established over

Bosnia to ease humanitarian flights into Sarajevo and deny the Serbs military use

of the air; (g) that the Serbs be required to dissolve and shut down their

concentration camps in Bosnia-Herzegovina; and finally (h) that an international

tribunal be established to prosecute and bring to justice those responsible for

crimes of war and crimes against humanity.41

Two weeks before the opening of the conference, Milan Panić, the newly

appointed Yugoslav prime minister, sent a letter to the President of the Security-

Council on 17 August 1992, confirming the cooperation of the FRY with the

international community, and outlining a number of commitments he had

reaffirmed in his speech to the conference. He emphasised the FRY’s rejection of

the use of force to gain land or change borders between the former Yugoslav

republics, affirming his opposition to the policy of ethnic cleansing used by the

warring factions, and asserting his desire to prosecute and bring to justice those

who were accused of carrying out ethnic cleansing and genocide. 42

Panić went a

41 Gow, supra note 2, at 225; Libal, supra note 38, at 96; O’Ballance, supra note 36, at 85; S.

Troebst, “Ethnopolitische Konflikte in Osteuropa und die OSZE. Eine vorläufige Bilanz,”

[Ethnopolitical Conflicts in Eastern Europe and the OSCE. Preliminary Results] (1998) 6:1-2

Ethnos-Nation 44. (German).

42

Gow, supra note 2, at 225; L. Silber & A. Little, The Death of Yugoslavia (New York, N.Y.:

Penguin Books, 1995) 285-287 [hereinafter Silber]; Libal, supra note 38, at 97; M. Panić,

“Commitments of Principle on Behalf of the FRY,” A Letter to Li Daoyu, President of the

Security Council from Milan Pani, Prime Minister of the FRY (17 August 1992); O’Ballance,

supra note 36, at 86.

298

step further when he silenced Milošević during the conference and made Radovan

Karadžić an offer to withdraw from two-fifths of the land occupied by Bosnian

Serb forces.

Most of the demands of the participating countries were included in a

number of documents issued by the London Conference, including: (a) proposed

Provisional Rules of Procedure for the International Conference on the Former

Yugoslavia; (b) Statement of Principles; (c) Work Programme of the Conference;

(d) Statement on Bosnia; (e) Specific Decisions by the London Conference; (f)

Conclusions on Implementation of Existing Sanctions; (g) Programme of Action

on Humanitarian Issues Agreed between the Co-Chairmen to the Conference and

the Parties to the Conflict; (h) Serbia and Montenegro; and (i) Confidence,

Security Building and Verification. Perhaps the most important document issued

by the London Conference was the agreement signed by Douglas Hogg, the

British Minister of State in the Foreign and Colonial Office, and Radovan

Karadžić and Nikola Koljević as representatives of the Bosnian Serbs, which

committed the latter to withdraw their heavy weapons from around Sarajevo,

Bihać, Goražde, and Jajce in a week, and place them under the supervision of UN

observers. Ironically, the UN Secretary-General complained that the UN lacked

the necessary mechanism to implement the agreement, a statement that reflected

the ineffectiveness of the international community.43

In spite of the fact that most of the Western leaders who attended the

conference were in favour of military action to settle the Bosnian calamity,

Izetbegović’s demand for arms and military support didn’t find any attentive ears.

Boutros-Ghali excluded the possibility of military intervention in Bosnia,

asserting that the UN would condemn any unilateral action. Even Turkey, the only

Muslim country to attend the conference, didn’t support Izetbegović’s demand.

However, after two days of discussions in London, the Conference passed its

43 Gow, supra note 2, at 229-230; International Conference on the Former Yugoslavia:

Documents Adopted at the London Conference, 26-27 August 1992, 31 I.L.M. 1527-1548; Silber,

supra note 42, at 288.

299

problems on to standing committees, which went into permanent session in

Geneva, under the name International Conference on Former Yugoslavia (ICFY).

A few days after the London Conference, 44

Milošević renounced all previous

commitments and documents signed at that conference, hoping that he could

thereby outmanoeuvre the EC leaders.

The ICFY, which officially emerged from under the coat-tails of the

London Conference, had inherited the ECCY with all its problems. The ICFY met

for the first time on 3 September 1992, and kept meeting for three and a half

years, from August 1992 to January 1996. It was co-chaired by Cyrus Vance,

representing the United Nations, and Lord David Owen, representing the EC. This

was in addition to forty personnel, including a number of international mediators:

Thorval Stoltenberg, the former Norwegian Foreign Minister; Carl Bildt, the

former Swedish Prime Minister; and Martti Ahtisaari, who later became the

president of Finland. Besides the presidency of the ICFY, there was a steering

committee, which emerged as the central figure of the presidency of the ICFY,

consisting of representatives from thirty-five countries including the permanent

members of the Security Council, and which functioned as a consultative body.

There were also working groups on: Bosnia and Herzegovina; Humanitarian

Issues; Ethnic and National Communities and Minorities; Succession Issues;

Economic Issues; and Confidence-Building and Verification Measures. Finally

there was an Arbitration Commission inherited from the ECCY. The main

strategic idea of the ICFY was to establish an ongoing negotiating framework

under the auspices of the United Nations and the EC to bring the Yugoslav

successor republics and warring parties to the negotiating table until all their

outstanding problems were solved.45

44 Gow, supra note 2, at 229; Libal, supra note 38, at 99; O’Ballance, supra note 36, at 86-87.

45

Agreement on Basic Principles in Geneva, 8 September 1995, Online: Bosnia Homepage

<http://www.cco.caltech.edu/~bosnia/doc/genevasep8.html> (Accessed on: 21 October 2003); B.

Boutros-Ghali, “Report of the Co-Chairmen of the Steering Committee of the International

Conference on the Former Yugoslavia,” A Letter to the President of the Security Council from

Boutros Boutros-Ghali, the Secretary-General of the United Nations (8 July 1994), UN Doc.

300

There were a number of fundamental problems encountered by the ICFY

that damaged its credibility and associated its work with failure. The first of these

was disagreement, inconsistency, and division among the major powers on certain

issues, the factor most responsible for the lost opportunities to make peace,

particularly in Bosnia-Herzegovina. The Vance-Owen Plan, which divided

Bosnia-Herzegovina into ten largely self-governing provinces drawn according to

the Geneva Plan, was rejected by the parties to the conflict, as well as by the

United States. After failing to have the Plan signed and internationally backed, the

ICFY decided to take it to the UN Security Council in the hope of finding backing

as four of the permanent members of the council were ready to support it. The

Clinton administration’s reluctance to sign the Plan, however, was due to the fact

that it was unfair to Muslims and contained a cantonization project based on

unethical acceptance of ethnic cleansing and establishment of new borders by the

use of armed force. The US refusal of the Plan encouraged the Bosnian Muslim

leadership not to sign it and to believe that the American position would be

followed by a military intervention.46

A second major factor was the immoral

pressure placed on the ICFY negotiators and delegations. Mirko Pejanović, the

Bosnian Serb member of the Bosnian Presidency and a member of the Bosnian

delegation to the Geneva peace talks that lasted from mid-September to mid-

December 1992, was pressured twice at the talks by the Serb delegation to leave

the Bosnian state’s negotiating team. The first occasion was when he received a

letter from Momčilo Krajišnik, a member of the Bosnian Serb delegation, and the

second was when he was invited by both Krajišnik and Karadžić into an adjacent

conference room without knowing that the Serb delegation and Lord Owen were

S/1994/811; B. de Rossanet, “Humanitarian Policies and Strategies: The International Conference

on the Former Yugoslavia,” (1994) Nordic Journal of International Law 111-112 [hereinafter

Rossanet]; B. de Rossanet, War and Peace in the Former Yugoslavia (Boston, Mass.: Kluwer Law

International, 1997) 4-5 [hereinafter after War and Peace]; O’Ballance, supra note 36, at 91-92.

46

Gow, supra note 2, at 241-245; O’Ballance, supra note 36, at 137; War and Peace, supra

note 45, at 16-19.

301

waiting for him. Similarly, the Bosnian Serb leadership was pressured several

times to sign the Vance-Owen Plan under the strong threat of air strikes or ground

troops sent to implement the Plan. When the air strikes against Serb targets in

Bosnia and Serbia were first proposed if Bosnian Serbs didn’t sign, an emergency

meeting was held in Athens between Milošević, Ćosić, and Mitsotakis, the Greek

Prime Minister to pressure Karadžić to sign it. Moreover, Andrei Kozyrev, the

Russian Foreign Minister called, in a joint statement with Lord Owen, for

“progressive implementation” of the Vance-Owen Plan by using armed ground

forces.47

Yet another problem was the tendency of the major powers to side with

certain of the warring parties, who consequently refused to make concessions

thinking that they would have better options than signing the Vance-Owen Plan.48

A fourth problem was inertia, for in spite of having a number of well trained

experts at its disposal, the ICFY was unable to make reasonable progress,

particularly on essential and principle issues, and, in its organizational structure

never went beyond the Working Group established by the London Conference.49

Finally, there was the problem of the difference between the mandate and

practices of the UN peacekeeping forces on the ground in Bosnia-Herzegovina.

As mentioned earlier, peacekeepers failed to protect civilians, secure the delivery

of humanitarian aid, and arrest major war-crimes suspects, who remained at large

in the RS. Furthermore, some peacekeepers were accused of raping Muslim

women held as spoils of war in Serb death camps.50

47 Gow, supra note 2, at 246-248; L. Cohen, Broken Bonds: The Disintegration of Yugoslavia

(Boulder, Colo.: Westview Press, 1993) 251-252 [hereinafter Cohen]; M. Pejanović, Through

Bosnian Eyes: The Political Memoir of a Bosnian Serb (West Lafayette, Ind.: Purdue University

Press, 2004) 163-165 [hereinafter Pejanović]; War and Peace, supra note 45, at 16.

48

Gow, supra note 2, at 242; War and Peace, supra note 45, at 16.

49

Gow, supra note 2, at 234.

50

Les Casques. Produced by Jacques Veronneau. Directed by Liliane Monette. Running Time

00:52:00. Radio Quebec, 1994. (Videocassette); Caught in the Crossfire. Produced by Graydon

McCrea. Directed by Garth Pritchard, Running Time 00:47:00. National Film Board of Canada,

1996. (Videocassette); Keeping the Peace? Produced and Directed by Mark Feldstein. Running

Time 00:15:00. American Brodcasting Corporation, 1999. (Videocassette); Peacekeepers.

302

After four months of extended discussions and the pressure of possible

international military intervention, Karadžić signed the Vance-Owen Plan,

insisting that the plan would have to be ratified by the parliament of the RS and

that Bosnian Serb leaders would not relinquish any territory they had controlled

during the war. Karadžić believed that this was a step towards establishing a

separate and pure Serbian state. By contrast, Muslims signed the Plan thinking

that it would serve as a basis for a lasting peace and the ultimate integration of

Bosnia-Herzegovina. Hence, although the Vance-Owen Plan was accepted, peace

continued to be unattainable as the plan was not implemented. While delegations

of the three warring parties initiated talks about military disengagement, final

maps and provincial boundaries, fighting flared-up between Croatian and Muslim

forces in Central Bosnia, on the one hand, and between Croatian forces and

Serbian forces in Eastern Croatia, on the other.51

The international community’s concerns increased as fighting intensified in

Bosnia-Herzegovina and Croatia by the end of January 1993. Vance and Owen

travelled to Washington and New York to discuss the critical situation with the

Security Council and President Clinton’s new administration. On 22 May 1993, a

joint strategy agreement was arrived at in Washington between the foreign

Produced by David Barlow. Directed by Brad Turner. Running Time 01:30:00. Canadian

Broadcasting Corporation, 1997. (Videocassette); The Peacekeepers: How the UN Failed in

Bosnia? Produced by David Gelber. Directed by Roger Goodman. Running Time 00:39:00.

American Broadcasting Corporation, 1994. (Videocassette); The Spin: Report on the Fall of

Srebrenica. Produced and Directed by BBC. Running Time 00:17:00. British Broadcasting

Corporation, 1995. (Videocassette); Tears and Terror: War, Rape and Women in the Former

Yugoslavia, 1992-1995. A Public Lecture by Hilmi M. Zawati. Produced by the Division of

Humanities, Bishop’s University. Directed by Ken Maclean, Arshad Taseen and Marie-Claude

Bastide. Running Time 01:20:00. Bishop’s University Humanities Lecture Series, 18 November

1999. (Videocassette); War and Peace, supra note 45, at 17.

51

Bosnia under Proposed UN Peace Plan: A Discussion with Lord Owen. Produced by

Patricia McMillen. Directed by Bryan Russo. Running Time 00:42:00. Multimedia Entertainment,

Inc., 1993. (Videocassette); Cohen, supra note 47, at 252-253; J. Burns, “Holding Lead Serbs in

Bosnia Look to End Fighting,” The New York Times (17 January 1993) 6; Peace Implementation

Conference for the Bosnian General Framework Agreement: Conclusions of the London Meeting,

12 December 1995, 35 I.L.M. 223-234; War and Peace, supra note 45, at 23.

303

ministers of the US, Russia, Britain, France, and Spain, the main contributors of

troops in Bosnia-Herzegovina, to stop the fighting there. The “Joint Action

Programme,” known as the “Washington Accord,” emphasized: the need of

imposing sanctions against the FRY, while helping the latter seal its borders with

Bosnia-Herzegovina; protection of the “Safe Areas” designated by UN Security

Council Resolutions 819 and 824; retaining the “No-Fly Zone”; taking quick steps

to establish a war-crimes tribunal and bringing perpetrators to justice; and seeking

an effective and lasting peace agreement. As a matter of fact, the Washington

Accord was a programme of inaction, a conspiracy against the interests of

Bosnian Muslims, and a US device to blow up the Vance-Owen Plan, despite

official American denial of the abandonment of the latter or of its renunciation of

resorting to military intervention as an option to enforce peace. Neither the

political leaders of the warring factions, nor the Stoltenberg-Owen team, nor the

UN Secretary-General were consulted. Karadžić welcomed the Washington

Accord, and confirmed that he would not relinquish any territory or co-operate

with the proposed UN ad hoc war-crimes tribunal approved by the UN Security

Council’s Resolution 827 of 25 May 1993 to prosecute war-crimes suspects,

including perpetrators of wartime rape. Izetbegović considered the Accord

unacceptable, and blamed the international community for punishing the victim

and rewarding the aggressor.52

With the implicit demise of the Vance-Owen Plan, Stoltenberg and Lord

Owen began new talks at the end of May 1993 that resulted in the so-called Owen

52 F. Boyle, “The Washington Agreement of 18 March 1994,” A Letter to the Parliament of the

Republic of Bosnia and Herzegovina from Francis A. Boyle, Professor of International Law (25

March 1994); Gow, supra note 2, at 248; O’Ballance, supra note 36, at 167-169; Silber, supra

note 42, at 354; UN Security Council’s Resolution 819 (1993), Demanding that All Parties and

others Concerned Treat Srebrenica and its Surroundings as a Safe Area which Should be Free

from any Armed Attack or any other Hostile Act (16 April 1993), UN Doc. S/RES/819 (1993); UN

Security Council’s Resolution 824 (1993), Welcoming the Report of the Security Council’s

Mission Established Pursuant to Resolution 819 (1993), and in Particular its Recommendations

Concerning Safe Areas (6 May 1993), UN Doc. S/RES/824 (1993); UN Security Council’s

Resolution 827 (1993), Approving the UN Secretary-General’s Report, Deciding to Establish the

Tribunal, and Specifying Implementing Tasks (25 May 1993), UN Doc. S/RES/827 (1993); 32

I.L.M. 1203-1205 (1993).

304

– Stoltenberg Plan for a Union of Three Republics. The idea of the latter plan was

based on a Serbo-Croatian project known as the “Union of the Republics of

Bosnia-Herzegovina,” proposed at a meeting held in Geneva on 15 and 16 June

1993 between Milošević and Tudjman to carve up Bosnia-Herzegovina by

creating a de facto Greater Serbia and Greater Croatia, respectively. The aim of

the Owen-Stoltenberg Plan was to create three ethnic republics within the

historical borders of Bosnia-Herzegovina, a project viewed as a return to the

principle of cantonization. Izetbegović rejected the Plan as it would carve up

Bosnia-Herzegovina, strip it of its UN membership, and subject more than two

million Bosnians to ethnic cleansing following the ethnic division of the

country.53

3. Arusha, Dayton, and Rambouillet: The Incomplete Peace

The most counter-productive aspect of the mediation process was that

parties came to the negotiations wearing two hats: talking peace and working for

war. The Arusha, Dayton, and Rambouillet Accords were concluded under

enormous internal and external, economic, military, and political pressures, and

accepted by the warring factions as if someone was forcing them to take bitter

medicine, as Izetbegović expressed it. The above peace agreements looked like

blueprints for castles in the air, lacking any firm ground on which to build them.

Accordingly, even these well-founded negotiations shouldn’t be considered as

achievements given their successful implementation.54

53 A. Izetbegović, A., “The Bitter Taste of Peace,” Turkish Daily News (14 September 1995) 1;

B. Boutras-Ghali, “Report of the Co-Chairmen of the Steering Committee of the International

Conference on the Former Yugoslavia,” A Letter to the President of the Security Council from

Boutros Boutros-Ghali, the Secretary-General of the United Nations (8 July 1993), UN Doc.

S/1993/26066; F. Boyle, “Comment on the Agreement on Basic Principles in Geneva of 8

September 1995,” A Letter to the Parliament of the Republic of Bosnia and Herzegovina from

Francis A. Boyle, Professor of International Law (11 September 1995); F. Boyle, “Stoltenberg-

Owen,” Online: Justwatch-L (1998) <JUSTWATCH-L@LISTSERV.ACSU.BUFFALO.EDU>

(Received on: 13 September 2005); Gow, supra note 2, at 253-254; Pejanović, supra note 47, at

177.

54

A. Borden & R. Caplan, “The Former Yugoslavia: The War and the Peace Process,” (1996)

SIPPI Yearbook: Armaments, Disarmaments and International Security 223 [hereinafter Borden];

305

Although the Arusha Accords ended Rwanda’s three-year civil war, which

erupted in the aftermath of the RPF’s invasion of October 1990, and despite being

considered as the most important peace agreement achieved in Africa since the

Lancaster House Accord, they paved the way to the Rwandan crisis given that the

United Nations had left the door wide open to delinquency in implementing the

Accords.55

There were two sets of major factors behind the failure of the Arusha

Accords; one related to their content and the negotiating process and the other

related to the implementation process. The first set of factors may be further

subdivided into five, as follows. The first was the fact that the Arusha Accords

were signed by the government of Rwanda and the RPF under massive internal

and external pressures. Tremendous external pressure was exerted by ex-colonial

and donor countries, particularly Belgium, France, the United States, and the

OAU in combination with the World Bank. They used their ultimate threat that

international funds for the Rwandan government would be terminated if the

Rwandan president failed to sign the Accords by 9 August 1993. After thirteen

months of marathon bargaining, Habyarimana, who entered the negotiations’

conference wearing two hats, tried to find any possible way to avoid signing the

last agreement; in the end, however, a dramatic change in the French position, the

main supporter of the genocidal regime, forced him to accept and sign the

Accords on 4 August 1993. Moreover, there were internal economic, political,

“Bosnia’s Bitter Peace,” The Economist 337:7942 (25 November 1995) 13; G. Church, “In

Harm’s Way: Troops Head off to Face Snipers, Mines, a Bitter Populance and a Great Deal of

Snow,” Time 146:26 (25 December 1995) 90-91; L. Scorgie, “Rwanda’s Arusha Accords: A

Missed Opportunity,” (2004) 1:1 Undercurrent 66 [hereinafter Scorgie].

55

B. Jones, “The Arusha Peace Process,” in H. Adelman & A. Suhrke, eds., The Path of a

Genocide: The Rwanda Crisis from Uganda to Zaire (New Brunswick, N.J.: Transaction

Publishers, 1999) 147 [hereinafter Jones]; B. Jones, Peacemaking in Rwanda: The Dynamics of

Failure (Boulder, Colo.: Lynne Rienner Publishers, 2001) 345 [hereinafter Peacemaking in

Rwanda]; M. Plaut, “Rwanda: Looking beyond the Slaughter,” The World Today 50:8-9 (August

1994) 151 [hereinafter Plaut]; S. Stearns, “An Uneasy Peace,” Africa Report 39:1 (January –

February 1994) 34 [hereinafter Stearns]; Scorgie, supra note 54, at 66.

306

and military pressures. The increase in military purchases raised the global public

debt from 6,678 million Rwandan francs in 1990 to 13,702 million francs in 1992.

This was in addition to poverty, a high ratio of unemployment, and the

demobilization of more than 50,000 soldiers from both the Rwandan forces and

the RPF army. Furthermore, the RPF’s offensive of February 1993 further

demonstrated its field superiority and compelled more than a million IDPs from

their homes in the provinces of Ruhengiri and Byumba, Rwanda’s breadbasket

regions.56

The second content-related factor was that the Arusha Accords were

negotiated and signed by the moderate parties, the government of Rwanda and the

RPF, and excluded the CDR and other extremists. The CDR leaders were severely

critical of Habyarimana and his government for preventing them from

participating in the Arusha process, for discussing future dealings of the Rwandan

government with the RPF without referring to them, and for marginalizing the

opposition and reducing the government’s own powers.57

56 Two months after signing the August’s 1992 cease-fire agreement, Habyarimana publicly

abandoned it and described it as a piece of trash, which the Rwandan government was not obliged

to respect. This repudiation resulted in several massacres of Tutsi civilians which in turn led to the

RPF’s major offensive of February 1993. But things became different when France changed its

ambassador to Kigali, a strong supporter of Habyarimana, in April 1993, and appointed Edouard

Balladur, who removed Africa from his primary concerns’ list, as a prime minister of the newly

installed French government. See F. Reyntjens, L’Afrique de Grands Lacs en crise: Rwanda et

Burundi, 1988-1994 [African Great Lakes in Crisis: Rwanda and Burundi, 1988-1994], Paris,

Karthala, 1994, à la p. 117 [ci-après Reyntjens]; G. Prunier, The Rwanda Crisis: History of a

Genocide (New York, N.Y.: Columbia University Press, 1995) 159 [hereinafter Prunier]; Jones,

supra note 26, at 68 & 71; ; L. Melvern, A People Betrayed: The Role of the West in Rwanda’s

Genocide (London: Zed Books, 2000) 52 [hereinafter Melvern]; “Leave None to Tell the Story,”:

Genocide in Rwanda (New York, N.Y.: Human Rights Watch, 1999) 123-124 [hereinafter

Genocide in Rwanda]; Plaut, supra note 55, at 151; R. Lemarchand, “Managing Transition

Anarchies: Rwanda, Burundi, and South Africa in Comparative Perspective,” (1994) 32:4 Journal

of Modern African Studies 581; Rwanda: The Preventable Genocide, International Panel of

Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events,

Organization of African Unity, Report, 2000, at chapter 8, at 1-2 [hereinafter International Panel];

Scorgie, supra note 54, at 69.

57

Peacekeeping in Rwanda, supra note 55, at 93-96; Jones, supra note 26, at 68 & 70; Jones,

supra note 55, at 147-148; Melvern, supra note 56, at 53-54; Prunier, supra note 56, at 162-163;

Reyntjens, supra note 56, at 248; Scorgie, supra note 54, at 72.

307

Yet another content-related factor was that among the agreements reached

in Arusha was an accord on “Power–Sharing within the Framework of Broad–

Based Transitional Government,” a substantial element that required the Rwandan

government to make concessions and share power with the RPF and the internal

opposition. This two-part agreement signed, on 30 October 1992 and 9 January

1993, was followed by “Integration of Armed Forces in the Two Parties,” another

agreement reached on 3 August 1993. Although the Tutsi minority formed less

than 15 percent of the Rwandan population, the above agreement gave the RPF 40

percent of the armed forces, and 50 percent of the senior command posts. The

Hutu radical parties felt that the RPF had won both the war and the peace talks.

Accordingly, they rejected the terms of the agreement, and called for

demonstrations, clashes, and even assassinations.58

The fourth factor consisted in the nature of the negotiations, in that

differences between the delegations produced a victor’s deal rather than a general

peace agreement. The RPF’s delegation, led by its president, was disciplined and

highly motivated, while the official government delegation appeared to be

distracted and pressured. The superior position of the RPF delegation encouraged

them to demand more concessions, while the government’s delegation, which was

under mounting pressure, had no choice but to accede to them, a decision that

enraged the Hutu radical parties and finally undermined the agreement.59

The fifth and final factor was the fact that the Arusha Accords failed to

address the security concerns of both the CDR and the Tutsi leadership. The

RPF’s consecutive diplomatic and military victories generated anxiety among the

Hutu radical parties. Excluding the CDR, a powerful political force, from power

58 Arusha Accords, , supra note 58; Genocide in Rwanda, , supra note 56, at 124; International

Panel, supra note 56, chapter 8, at 1-3; Jones, supra note 26, at 72; Jones, supra note 55, at 148;

Plaut, supra note 55, at 151; Stearns, supra note 55, at 35. UN Security Council, Report of the

Secretary-General on Rwanda, UN Doc. S/26488 (24 September 1993) 1 [hereinafter Report of

the Secretary-General on Rwanda].

59

International Panel, supra note 56, Chapter 8, at 1; Jones, supra note 26, at 70; Jones, supra

note 55, at 149.

308

and depriving it of any direct military or political control over the Rwandan forces

created uncertainty and bad faith. Simultaneously, the RPF’s leaders showed the

same concerns. Patrick Mazimhaka, the RPF’s vice-president, said that the RPF

leadership never trusted Habyarimana or believed for one minute that he was

sincere in seeking peace, whether during negotiations or when he signed the

Accords. As in most similar agreements, there were winners and losers. In dealing

with the losers and in order to minimize their destructive attitudes, the Arusha

agreements were supposed to give the CDR a place at the negotiating table and to

estimate their capacity to prevent them from undermining the peace process.60

The other set of factors that contributed to the failure of the Arusha

Accords, those relating to the implementation process, were many and varied.

Chief among them was (a) the UN’s passive role in implementing the Accords.

This was clear from the following aspects:

(i) The weak position of the UN during and after the negotiations. As the

marginal actor in the Arusha process, a few months after signing the Accords, the

UN (particularly the Secretariat and the Security Council) treated Rwanda with

little attention. Although the Accords provided for the establishment of a Neutral

International Force (NIF) within 37 days from signing the Accords, the UN

response was slow and chilly.61

(ii) Turning down the recommendations of the reconnaissance mission led

by General Roméo Dallaire, at that time the head of the UNOMUR. The mission

60 Genocide in Rwanda, supra note 56, at 125-126; International Panel, supra note 56, Chapter

8, at 2; Peacekeeping in Rwanda, supra note 55, at 96; Jones, supra note 26, at 79; Jones, supra

note 55, at 152-153; Melvern, supra note 56, at 53; Prunier, supra note 56, at 162-163; Sénat de

Belgique, Rapport du Groupe ad hoc Rwanda à la Commission des Affaires Ètrangères [Report of

the Ad Hoc Group of Rwanda at the Foreign Affairs Commission] (Belgique, Sénat de Belgique, 7

janvier 1997) à la p. 22 [ci-après Sénat de Belgique]; Stearns, supra note 55, at 34-35; United

Nations, The United Nations and Rwanda, 1993-1996, UN Blue Books Series, Vol. 10 (New

York, N.Y.: Department of Public Information, United Nations, 1996) 224.

61

H. Adelman, et al., The International Response to Conflict and Genocide: Lessons from the

Rwanda Experience, Study 2 ‘Early Warning and Conflict Management’ (Copenhagen: Steering

Committee of the Joint Evaluation of Emergency Assistance to Rwanda, 1996) 35 & 39

[hereinafter International Response]; Jones, supra note 26, at 70; Scorgie, supra note 54, at 73.

309

had to decide on four major issues: the timeliness of deployment, the size, the

mandate, and the rules of engagement for the NIF, known later as the UNAMIR.

General Dallaire suggested that the mission required 4,500 troops with a strong

mandate, but the Security Council approved only 2,548 troops with restricted

mandate, and limited financial and technical resources.62

(iii) The delay in the deployment of the NIF accelerated the collapse of the

peace agreement. The Arusha Accords provided for the establishment and

deployment of the NIF within 37 days from the date of signing the Accords (4

August 1993), but they didn’t reach Kigali and assume their duties on time in

spite of all the warnings of massacres and serious human rights violations. These

early warnings were confirmed in the report of Waly Ndiaye, a special rapporteur

of the UNCHR, the report of the reconnaissance mission, and the message

delivered by the joint Government-RPF delegation that met with the UN

Secretary-General on 15 September 1993. As stated earlier, the aim of the NIF

was to assist the parties to the agreement in implementing the Arusha Accords by:

assuring the security of the country; verifying the maintenance of law and order;

securing the delivery of humanitarian aid and the lives of civilians; and tracking

down arms caches.63

(iv) The underestimation of the situation before and after the signing of the

Arusha Accords. Despite its marginal role during the Arusha negotiations, the

62 International Response, supra note 61, at 35; Jones, supra note 26, at 73; L. Melvern, “The

Security Council in the Face of Genocide,” (2005) 3:4 Journal of International Criminal Justice

850 [hereinafter Melvern]; UN Security Council’s Resolution 872 (1993), Welcoming the

Secretary-General’s Report and Deciding to Establish a Peace-Keeping Operation under the

Name ‘United Nations Assistance Mission for Rwanda (UNAMIR) (5 October 1993), UN Doc.

S/RES/872 (1993).

63

International Response, supra note 61, at 35-37; J. Castonguay, Les Casques bleus au

Rwanda [The UN Peacekeepers in Rwanda], Paris, L’Harmattan, 1998, à la pp. 33 [ci-après

Castonguay]; Report of the Independent Inquiry into the Actions of the United Nations during the

1994 Genocide in Rwanda, UN Doc. S/1999/1257 (16 December 1999) 6 [hereinafter Carlsson

Report]; Report of the Secretary-General on Rwanda, supra note 58, at 13; UN Commission on

Human Rights, Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/1994/7/Add.1

(11 August 1993) [hereinafter Arbitrary Executions].

310

United Nations considered the Arusha Accords a lasting peace achievement,

allowing it to remove Rwanda from its main agenda. However, it then ignored

alarms concerning the deteriorating situation in Rwanda, and adopted a series of

weak resolutions that were insufficient to stop or prevent the crisis. One week

after signing the Arusha Accords, the UNCHR released a report warning that

massacres and excessive human rights violations were taking place in Rwanda.

Although the report pointed to the strong possibility of genocide in Rwanda and

recommended a number of steps to be taken by the international community to

prevent further massacres, in most cases against the Tutsi minority, it was largely

ignored by the permanent members of the UN Security Council. On 15 September

1993, the UN Secretary-General told the joint Government-RPF mission that the

United Nations was experiencing a financial crisis and that the Security Council

could not satisfy its demands for the rapid deployment of 4,260 troops, regardless

of the situation. Furthermore, when General Dallaire arrived in Kigali on 21

October 1993, the same day that the newly elected Burundi Hutu President was

assassinated by the Burundi Tutsi-dominated army and approximately 100,000

Hutu were killed, he was told by several foreign diplomats and Rwandans that any

delays in establishing the BBTG and other transnational institutions would

undermine the peace process and critically endanger the Arusha Accords. Even

the UNAMIR’s famous cable of 11 January 1994 to the DPKO, and the alarming

news of arms distribution and the extremists’ plans to assassinate political leaders

did not change the UN’s position; on the contrary, it even threatened to withdraw

its peacekeeping forces if war resumed in Rwanda, as Boutros-Ghali

proclaimed.64

Another factor (b) was that the Rwandan government’s real position was

not in favour of the Accords. Habyarimana and Hutu extremists didn’t want them

64 Arbitrary Executions, supra note 63; Carlsson Report, supra note 63, at 6-7; International

Response, supra note 61, at 36-39; Jones, supra note 26, at 73 & 79; Report of the Secretary –

General on Rwanda, supra note 58, at 13.

311

to be implemented. This was due to the imbalance of the military agreement, 65

and to the Hutu radicals’ rigid position, who believed that they were the big losers

in the deal.

A third factor (c) was the shifting position of the French government, and

the inaction of the international community. The UNAMIR stationed at Kigali

Airport had confiscated a planeload of arms from France destined for the

genocidal regime on 22 January 1994. This shipment, which ought to have been

considered a violation of the cease-fire agreement reached in Arusha, was

justified by both the French and Rwandan governments who argued that it came

from an old contract signed prior to the Arusha Accords. These arms eventually

fell into the hands of the Hutu extremist militant groups and were used in

terrorising and killing civilians. In the meantime, the United States, through its

representative at the United Nations, undermined all attempts to strengthen the

UNAMIR. Rwandans were thus victims of illegal actions by France and the

frustrating inaction of the United States. The French government, moreover,

continued its support for the genocidal government even after the start of the mass

killings.66

One more factor (d) was that violence and instability in Burundi had

negatively affected the situation in Rwanda in different ways. The UNAMIR was

forced to deploy a segment of its forces along the Rwandan border with Burundi

to stop the flow of refugees abandoning their homes, a matter that weakened the

UNAMIR’s performance. On the other hand, Rwandan Hutu extremists used the

65 International Panel, supra note 63, Chapter 8, at pp. 3-4; Peacekeeping in Rwanda, supra

note 55, at 93; Melvern, supra note 56, at 53; Sénat de Belgique, rapport de la commission

d’enquête parlementaire concernant les événements du Rwanda, Orateurs, MM. Mahoux, et al.,

session ordinaire 1997-1998 [Report of the Parliamentary Commission of Inquiry Concerning the

Events of Rwanda, Speakers, Mahoux et al. Ordinary Session 1997-1998], seances plenieres,

no.1–153, (Belgique: Sénat de Belgique, 17 décembre 1997) à la p. 141 [ci-après rapport de la

Sénat].

66

Contrat pour la fourniture de matériels techniques miliares, contrat No. 01/93. DOS

0384/06.1.9; International Response, supra note 61, at 38; Melvern, supra note 56, at 55.

312

assassination of the Burundi president and killings as a pretext to justify 67

their

concerns regarding the return of the RPF to Rwanda in order to retake power and

reign over the Hutu.

After more than three and a half years of devastating war in Bosnia-

Herzegovina, a general framework peace agreement was initialled on 21

November 1995 by Alija Izetbegović, president of Bosnia-Herzegovina, Franjo

Tudjman, president of Croatia, and Slobodan Milošević, president of Serbia,

representing and acting on behalf of the FRY and the Bosnian Serbs. This

agreement was concluded at the Wright-Patterson Air Force Base near Dayton,

Ohio under the auspices of the Contact Group countries, and signed by the

warring parties in a ceremony held at the Elysée Palace in Paris on 14 December

1995, in the presence of President William J. Clinton of the US and President

Jacques Chirac of France. This extremely complicated instrument, which was

composed of eleven articles and supplemented with another eleven annexes,

aimed at the creation of stability, the restoration of human rights, and the

foundation of a lasting peace in Bosnia-Herzegovina and the former Yugoslav

republics by incorporating a military implementation force and civilian

mechanisms.68

67 International Panel, supra note 63, Chapter 8, at p.3; Jones, supra note 26, at 73; Stearns,

supra note 55, at 34.

68

The “General Framework Agreement” was the core of the DPA and was composed of an

extensive set of arrangements, implicating three of the successor republics of the SFRY, namely:

The Republic of Bosnia and Herzegovina, the FRY, and the Republic of Croatia. In sum, the

Agreement asserted that the above republics would recognize and respect the sovereignty of each

other, and agree fully to respect and promote fulfilment of the commitments made in the various

eleven annexes.

Successively, the Agreement’s annexes are a group of agreements concluded between the

Republic of Bosnia and Herzegovina and its two Entities; the Federation of Bosnia and

Herzegovina, and the Republika Srpska, as follows: Annex 1-A “Military Aspects of the Peace

Settlement,” which provided for the cessation of hostilities, withdrawal of forces behind a zone of

separation, and the deployment of the Implementation Force (IFOR); Annex 1-B “Regional

Stabilization,” which supported the confidence and security-building measures among the above

entities and the Republic of Bosnia and Herzegovina; Annex 2 “Inter-Entity Boundary,” which

dealt with the boundaries line between the Bosnian Entities, and provided for binding arbitration

for the Brčko area within a year; Annex 3 “Elections,” which endorsed free and fair internationally

supervised elections within six to nine months for the Presidency and House of Representatives of

313

Bosnia and Herzegovina, for the House of Representatives of the Federation of Bosnia and

Herzegovina, and for the Presidency and National Assembly of the Republika Srpska; Annex 4

“Construction of Bosnia and Herzegovina,” which maintained that the Republic of Bosnia and

Herzegovina, known as “Bosnia and Herzegovina” would consist of two Entities: the Federation

of Bosnia and Herzegovina and the Republika Srpska; Annex 5 “Arbitration,” which stated that

the Federation of Bosnia and Herzegovina and the Republika Srpska would agree to binding

arbitration of disputes between them; Annex 6 “Human Rights,” which guaranteed the recognition

of human rights and fundamental freedoms for all persons within Bosnia-Herzegovina, and

approved the establishment of a “Commission on Human Rights” consisting of two institutions the

Office of the Ombudsman and the Human Rights Chamber; Annex 7 “Refugees and Displaced

Persons,” which advocated the refugees and displaced persons’ rights to safely return home and

regain lost property or obtain just compensation, as well as the establishment of an Independent

Commission for Displaced Persons and Refugees; Annex 8 “Commission to Preserve National

Monuments,” which provided for a commission empowered to receive and act upon petitions to

designate national monuments and to take the necessary measures to protect them; Annex 9

“Bosnia and Herzegovina Public Corporations,” which established the “Bosnia and Herzegovina

Transportation Corporation,” to organize and operate transportation facilities; and the

“Commission on Public Corporations,” to examine establishing other Bosnian Public corporations;

Annex 10 “Civilian Implementation,” which commanded the designation of a High Representative

to monitor the implementation of the peace settlement; and finally, Annex 11 “International Police

Task Force,” which approved the establishment of this force to help the Parties carry out their

responsibilities.

It’s worth mentioning that two other agreements were achieved at Dayton before concluding

the General Framework Agreement for peace in Bosnia-Herzegovina and its annexes: (a) the

“Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina,” concluded on

10 November 1995, between the president of the Republic of Bosnia and Herzegovina and the

prime ministers of both the Republic and the Federation of Bosnia and Herzegovina, on the one

hand, and between the president of the Federation of Bosnia and Herzegovina and the deputy

prime ministers of both the Republic and the Federation of Bosnia and Herzegovina on the interim

statute for the city of Mostar, on the other; and (b) the “Basic Agreement of the Region of Eastern

Slavonia, Baranja and Western Sirmium,” concluded on 12 November 1995 between the heads of

the Serb and the Croatian governments. See Annex 1-A: Military Aspects of the Peace Settlement,

14 December 1995, 35 I.L.M.91 (1996) [hereinafter Annex 1-A]; Annex 1-B: Regional

Stabilization, 14 December 1995, 35 I.L.M.108 (1996) [hereinafter Annex 1-B]; Annex 2: Inter-

Entity Boundary, 14 December 1995, 35 I.L.M.111 (1996) [hereinafter Annex 2]; Annex 3:

Elections, 14 December 1995, 35 I.L.M.114 (1996) [hereinafter Annex 3]; Annex 4: Constitution

of Bosnia and Herzegovina, 14 December 1995, 35 I.L.M.117 (1996) [hereinafter Annex 4];

Annex 5: Arbitrations, 14 December 1995, 35 I.L.M.129 (1996) [hereinafter Annex 5]; Annex 6:

Human Rights, 14 December 1995, 35 I.L.M.130 (1996) [hereinafter Annex 6]; Annex 7: Refugees

and Displaced Persons, 14 December 1995, 35 I.L.M.136 (1996) [hereinafter Annex 7]; Annex 8:

Commission to Preserve National Monuments, 14 December 1995, 35 I.L.M.141 (1996)

[hereinafter Annex 8]; Annex 9: Bosnia and Herzegovina Public Corporations, 14 December

1995, 35 I.L.M.144 (1996) [hereinafter Annex 9]; Annex 10: Civilian Implementation, 14

December 1995, 35 I.L.M.146 (1996) [hereinafter Annex 10]; Annex 11: International Police Task

Force, 14 December 1995, 35 I.L.M.149 (1996) [hereinafter Annex 11]; A. Rubin, “Dayton,

Bosnia and the Limits of Law,” National Interest 46 (22 December 1996) 41 [hereinafter Rubin];

B. Nelan, “A Perilous Peace,” Time (4 December 1995) 19 [hereinafter Nelan]; Basic Agreement

on the Region of Eastern Slavonia, Baranja and Western Sirmium, 12 November 1995, UN Doc.

A/50/757-S/1995/951, Annex, reprinted in 35 I.L.M.184 (1996); Bosnia-Hercegovina: Human

Rights in Bosnia and Hercegovina Post Dayton-Challenges for the Field, Human Rights Watch,

314

After ten years of putting the DPA into force, the following analysis argues

that the above mechanisms, which incorporated momentous obstacles, led to a

series of failures that shattered any illusion that these Accords could provide the

framework for a durable peace among the successor republics of the former

Yugoslavia.

The DPA’s failure in achieving its goals was due to structural and

implementation weaknesses, as well as to national and international

incompetence. Analyzing the articles of the DPA, the reader will notice that the

March 1996, Vol. 8, No. 2 (D), 1 [hereinafter Post Dayton]; Bosnia-Herzegovina: The

International Community’s Responsibility to Ensure Human Rights, Amnesty International, June

1996, AI-Index: EUR. 63/14/96, p. 1 [hereinafter Ensure Human Rights]; Dayton Agreement on

Implementing the Federation of Bosnia and Hercegovina, 10 November 1995, 35 I.L.M. 170

(1996); D. Chollet, The Road to the Dayton Accords: A Study of American Statecraft (New York,

N.Y.: Palgrave Macmillan, 2005) 171 [hereinafter Choleet]; E. Cousens & C. Cater, Toward

Peace in Bosnia: Implementing the Dayton Accords (Boulder, Colo.: Lynne Rienner Publishers,

2001) 33 & 44 [hereinafter Cousens]; F. Debié, “De Briono à Dayton: une très étrange diplomatie

de la paix,” dans C. Monnot, dir., Dernier guerre balkanique? Ex-Yougoslavie: témoignages,

analyses, perspectives, Paris, Édition L’Harmattan, 1996, à la p.49; General Framework

Agreement, 14 December 1995, 35 I.L.M. 89 (1996) [hereinafter Framework Agreement]; Gow,

supra note 2, at 288; Hudson, supra note 9, at 120; I. Daalder, Getting to Dayton: The Making of

America’s Bosnia Policy (Washington, D.C.: Brookings Institution Press, 2000) 36; I. Oliver,

War and Peace in the Balkans: The Diplomacy of Conflict in the Former Yugoslavia (New York,

N.Y.: I. B. Tauris, 2005) 83 [hereinafter Oliver]; J. Stoessinger, Why Nations Go to War (New

York, N.Y.: St. Martin’s Press, 1998) 199 [hereinafter Stoessinger]; L. Sell, Slobodan Milošević

and the Destruction of Yugoslavia (Durham, N.C.: Duke University Press, 2002) 251 [hereinafter

Sell]; M. Crnobrnja, The Yugoslav Drama, 2nd

ed. (Montreal, Quebec: McGill–Queen’s University

Press, 1996) 266 [hereinafter Crnobrnja]; M. Ducasse-Rogier, À la recherche de la Bosnie-

Herzegovine: la mise en œuvre de l’accord de paix de Dayton, Paris, presses Universitaires de

France, 2003, 73; M, Glenny, The Balkans: Nationalism, War, and the Great Powers, 1804-1999

(New York, N.Y.: Viking, 2000) 649 [hereinafter Glenny]; M. Hanson, “Warning from Bosnia:

The Dayton Agreement and the Implementation of Human Rights,” in K. Booth, ed., The Kosovo

Tragedy: The Human Rights Dimensions (Portland, Or.: Frank Cass, 2001) 87 [hereinafter

Hanson] ; M. Price, “Information Intervention: Bosnia, the Dayton Accords, and the Seizure of

Broadcasting Transmitters,” (2000) 33:1 Cornell International Law Journal 74 [hereinafter Price];

P. Szasz, Introductory Note: Bosnia and Herzegovina – Croatia – Yugoslavia: General Framework

Agreement for Peace in Bosna and Herzegovina with annexes, 35 I.L.M. 75-80 (1996); “Peace

Agreement Bring a Long-Delayed Birth of Hope: Multinational Force Set up in Bosnia to Replace

UNPROFOR,” UN Chronicle 33:1 (1996) 25; Pejanović, supra note 47, at 219; R. Lukic,

L’Agonie Yougoslave, 1986-2003: Les Ètats-Unis et l’Europe face aux guerres Balkaniques,

Québec: Le Presses de l’Université Laval, 2003, 253; Twenty-One Days at Dayton: A Special

Report, War Report No.39, February-March 1996, 1 [hereinafter Special Report]; United States,

Department of State, Summary of the Dayton Peace Agreement on Bosnia-Herzegovina

(Washington, D.C.: Department of state, 1995) 1 [hereinafter Dayton’s Summary].

315

agreement enhanced the culture of disintegration and rewarded the aggressors,69

who achieved in Dayton by negotiation what they had failed to manage by force

of arms.

Although the DPA aimed, in general, at the reintegration of Bosnia-

Herzegovina through electoral laws and the rights of refugees and IDPs to return

to their homes, it failed to establish solid grounds for a sustained peace in Bosnia-

Herzegovina. This failure may be ascribed to the DPA’s phraseology and

structural problems, including the decision to drop the internationally recognized

name of the country “Republic of Bosnia and Herzegovina,” and its partition into

two de facto ethnic states: the Federation of Bosnia and Herzegovina, and the RS.

Furthermore, the DPA’s provisions revealed a high degree of conflict regarding

major issues, including controversy over arms control provisions and the United

States’ project to train and equip the Federation armies, the absence of concert

between the various aspects of the DPA, and the incompatible objectives of

integration vis à vis partition and separation by giving the RS a high degree of

autonomy.70

Dayton was structured on the Contact Group’s plan, which divided Bosnia-

Herzegovina into two ethnic entities, assigning 49 percent of the country to the

Bosnian Serbs, who composed 31.3 percent of the total population of Bosnia-

Herzegovina, according to the national census of 1991, and granting 51 percent of

69 “An Unjust Peace,” New Statesman & Society 8 (1 December 1995) 5; B. Denitch, Ethnic

Nationalism: The Tragic Death of Yugoslavia (Minneapolis, Minn.: University of Minnesota

Press, 1996) 215 [hereinafter Denitch]; Borden, supra note 54, at 222; “Bosnia: Peace at Last, at

Least for Now,” The Economist 337:7942 (25 November 1995) 23-24; M. Kaldor, “Balkan Carve-

Up,” New Statesman & Society 9 (5 April 1996) 24; T. Zimmermann & C. Soloway, “A Bosnian

Sort of Peace: New Hope and Old Fears, Three Months into Implementation of the Dayton

Accords,” U. S. News & World Report (1 April 1996) 36 [hereinafter Zimmermann].

70

After Milošević: A Practical Agenda for Lasting Balkans Peace (Brussels: International

Crisis Group Press, 2001) 155 [hereinafter After Milošević]; Burg, supra note 36, at 363; D.

DeVoss, “When the West Made a Difference,” Los Angeles Times (11 December 2005) 11; Gow,

supra note 25, at 288; Hudson, supra note 9, at 122; J. Sharp, “Dayton Report Card,” (1997-1998)

22:3 International Security 113 [hereinafter Sharp]; R. Pape, “Partition: An Exit Strategy for

Bosnia,” (1997-1998) 39:4 Survival 25 [hereinafter Pape]; Zimmermann, supra note 69, at 36.

316

the country to the Muslim and Croat populations of the Federation of Bosnia and

Herzegovina, who jointly constituted 61 percent of the total population. This

inequitable division didn’t satisfy the interests of any of the above parties. The

Bosnian Muslims wanted to reunite the country by promoting the return of

Muslim refugees and the IDP to their homes in the pre-war Serb- and Croat-

dominated territories, while separatist Serbs strove to keep up their ethnic

cleansing policy by forcing all non-Serbs out of their territory. This contradiction

was reflected in the DPA’s provisions that fostered and hardened the division

between the two ethnic entities, particularly Annexes 1-3, and those provisions

that tended to promote reconciliation, reintegration, and maintenance of a

multicultural and tolerant society found in Annexes 5-7. With this unfair division,

which rewarded the aggressors, Bosnian Muslims felt that the Americans had

pulled the rug out from under their feet when they began to win and recapture

territories they had lost at the beginning of war. Ten years later, ethnic principles

continue to undermine the DPA and divide the country into entities that encourage

the domination of the nationalist parties and nourish ethnic and religious

ideologies at the expense of the values of citizenship and democracy.71

Contrary to the DPA’s provisions laid down in Annexes 1-A and 1-B, the

United States promised to train and equip the Federation’s armies. The American

administration, which was committed by the US Congress to keep this promise,

had argued that the DPA was unfair to the Bosnian Muslims, and that without this

promise Izetbegović would not have signed the agreement. Furthermore, if the

71 Burg, supra note 36, at 415, D. Cohn-Bendit, et al., “La Bosnie-Herzégovine après dix ans

de Dayton,” En ligne: Le Monde, 11 octobre 2005 <http://www.lemonde.fr/web/article/0,1-0@2-

3232,36- 697738,0.html> (date d’accès: 15 novembre 2005); F. Debié, “De Brioni à Dayton: une

très étrange diplomatie de la paix,” [From Brioni to Dayton: A Very Strange Diplomacy of Peace]

dans C. Monnot, dir., Dernier guerre balkanique? Ex-Yougoslavie: témoignages, analyses,

perspectives, Paris, Édition L’Harmattan, 1996, à la pp. 81-82 [ci-après Debié]; J. Neuwirth,

“Towards a Gender-Based Approach to Human Rights Violations,” (1987) 9 Whittier Law Review

399 [hereinafter Neuwirth]; Sharp, supra note 70, at 115; W. Clark, Waging Modern War: Bosnia,

Kosovo, and the Future of Combat (New York, N.Y.: Public Affairs, 2001) 53 [hereinafter Clark];

War Crimes in Bosnia-Hercegovina, vol.1 (New York, N.Y.: Helsinki Watch, a Division of

Human Rights Watch, 1993) 19 [hereinafter War Crimes].

317

United States did not arm and train the Federation’s armies, the Bosnian Muslims

would satisfy their needs from Iran and other Muslim countries. The Europeans

opposed this promise, as much as they were reluctant to lift arms embargoes on

Bosnia-Herzegovina and Croatia after they became independent. The Europeans

claimed that training and equipping the Federation’s armies violated regional and

sub-regional arms agreements and undermined the possibility of merging the

Federation and the RS armies in one united army.72

It must be emphasized that the DPA never recognized or approved the

foundation of an army for the Republic of Bosnia and Herzegovina. This issue

was clear in the DPA’s various provisions, which granted the armies of the

entities abundant authority. Article II(i) of Annex 1-B had provided for the

establishment of a military liaison mission between the chiefs of the armed forces

of the two entities. In the same fashion, Article III(3) of Annex 4 had purposely

omitted the responsibility of defence from the Bosnian central institutions and had

assigned it to the armed forces of the entities, dealing with them as if they were

armies of two de facto independent states. Moreover, Article V(5) of the same

annex, regulating the competence and authorities of the three members of the

Presidency of Bosnia-Herzegovina, approved the setting up of a Standing

Committee on military matters, so that, by virtue of the office, every member of

the Presidency had civilian command authority over the armed forces of his

entity. This provision undermined the potential of having any type of joint

command for the armies of the entities, 73

and, accordingly has disabled, for the

72 D. Sremac, War of Words: Washington Tackles the Yugoslav Conflict (Westport, Conn.:

Praeger, 1999) 196-197 [hereinafter War of Words]; Dayton: A Peace, or Just a Cease-Fire? The

Military Equation in Post-Dayton Bosnia, International Crisis Group, Report, 1997, 8-9

[hereinafter Post-Dayton Bosnia]; Is Dayton Failing? Bosnia Four Years after the Peace

Agreement, International Crisis Group, Balkans Report, No. 80, 1999, 10 [hereinafter Is Dayton

Failing?]; M. Glitman, “US Poicy in Bosnia: Rethinking a flawed Approach,” (1996-1997) 38:4

Survival 69 [hereinafter Glitman]; N. Beloff, Yugoslavia: An Avoidable War (London: New

European Publications, 1997) 123 [hereinafter Beloff]; Sharp, supra note 70, at 116.

73

Annex 1-B, supra note 68, at Article II(i); Annex 4, supra note 68, at Article III(3);

“Overview of the Dayton Peace Agreement,” The Bosnian Institute, Bosnia Report No. 13

(January 1996) 3 [hereinafter Overview of Dayton].

318

past ten years, the DPA’s provisions endorsing the return of refugees and IDPs to

their homes under the control of the armed forces of the Republika Srpska.

On the other hand, the DPA simultaneously stripped the Republic of Bosnia

and Herzegovina of any real sovereignty or independence. Article V of Annex 10,

“Final Authority to Interpret,” granted the High Representative (HR) the final

authority to interpret the DPA’s provisions on the civilian implementation of the

peace settlement. This article, in addition to other provisions that gave the IFOR

power over military matters, and Annex 11, which assigned the supervision of

judicial institutions to the UN agencies in Bosnia-Herzegovina, had effectively

placed the country under direct occupation and left the presidency, the

government, and the parliament as a puppet regime.74

To ensure the implementation of human rights, the DPA had incorporated

military enforcement and civilian mechanisms, and envisioned an extensive role

to be played by national, regional, and international bodies. The following pages

examine these institutions, evaluate its prospective role in the implementation

process, and discuss how it failed to meet its obligations, stipulated in the DPA’s

provisions, to address human rights violations, ensure accountability for past

abuses, and bring perpetrators to justice.75

The DPA established a number of national institutions, including: (a) The

Constitutional Court of Bosnia-Herzegovina (CCB-H), articulated in Annex 4 of

74 Annex 1-A, supra note 68, at Article I(2)(B); Annex 10, supra note 68, at Article V; F.

Boyle, “Dealing with Dayton,” A Letter to the People and Parliament of the Republic of Bosnia

and Herzegovina from Francis A. Boyle, Professor of International Law (9 July 1999); F. Boyle,

“Memorandum: The Dayton Agreement,” A Letter to the People and Parliament of the Republic

of Bosnia and Herzegovina from Francis A. Boyle, Professor of International Law (30 November

1995); F. Friedman, Bosnia and Herzegovina: A Polity on the Brink (New York, N.Y.: Routledge,

2005) 69-70 [hereinafter Friedman]; G. Dempsey, “Rethinking the Dayton Agreement: Bosnia

Three Years Later,” Cato Policy Analysis No. 327 (14 December 1998) 13 [hereinafter Dempsey].

75

Bosnia-Hercegovina: Human Rights in Bosnia and Hercegovina Post Dayton-Challenges

for the Field, Human Rights Watch, March 1996, Vol. 8, No. 2 (D), 1 [hereinafter Post Dayton];

Cousens, supra note 68, at 37; L. Palmer & C. Posa, “The Best-Laid Plans: Implementation of the

Dayton Peace Accords in the Courtroom and on the Ground,” (1999) 12 Harvard Human Rights

Journal 362 [hereinafter Palmer].

319

the DPA, required the Bosnian entities to ensure the highest level of

internationally recognized human rights and fundamental freedoms. Human rights

guarantees were emphasized in the Preamble and explained in Article II of the

Constitution.76

Article VI provided for the foundation of the CCB-H after national

elections. The court was formed of nine members, three to be selected by the

President of the European Court of Human Rights (ECHR) after consultation with

the Presidency of Bosnia-Herzegovina and six to be selected equally by the

Bosnian Entities, and had final and binding decision making powers. The court’s

jurisdiction included its power to resolve disputes arising between different

entities or between entities and Bosnia-Herzegovina under the Constitution. It

also had an appellate jurisdiction over constitutional matters arising from issues or

cases referred by any court in Bosnia-Herzegovina concerning whether a law, on

whose validity its decision depends, is compatible with the constitution or with

the European CPHRFF and its Protocols.77

(b) The Provisional Election Commission (PEC), which was established by the

OSCE under Article III of Annex 3 of the DPA. The responsibilities of the

Commission, which consisted of the HR or his designee, representatives of the

parties, and such other persons as the head of the OSCE Mission, included

adopting electoral rules and regulations as mentioned in Article III(1). Moreover,

76 The Preamble asserts that the Constitution of Bosnia and Herzegovina, guided by the UN

Bill of Rights and other human rights instruments, is based on respect for human dignity, liberty,

and equality, and dedicated to peace, justice, tolerance, and reconciliation. Article II of the

Constitution emphasizes the application of international human rights treaties, including the

European Convention for the Protection of Human Rights and Fundamental Freedoms and its

Protocols, in Bosnia-Herzegovina, and demands the Bosnian parties to fully respect and promote

the principles of human rights and Freedoms. See Annex 4, supra note 68; F. Matscher & M.

Amigo, “Report on the Conformity of the Legal Order of Bosnia and Herzegovina with Council of

Europe Standards,” Human Rights Law Journal 20:7-11 (30 November 1999) 400 [hereinafter

Matscher]; T. Burnazović, “Legal Reform in Post-Dayton Bosnia: Acheivements and Failures,

1996-2002,” in C. Pentland, ed., Bridges to Peace: Ten Years of Conflict Management in Bosnia

(Kingston, Ontario: Queen’s University, 2003) 115 [hereinafter Burnazović].

77

Ensure Human Rights, supra note 68, at 22; Is Dayton Failing?, supra note 72, at 26; J.

Sloan, “The Dayton Peace Agreement: Human Rights Guarantees and their Implementation,”

(1996) 7:2 European Journal of International Law 215 [hereinafter Sloan].

320

the Commission had to certify that the right social conditions existed for effective

elections, including the safe return of refugees and IDPs to take part in the

elections. If these conditions were not met, the Commission was to register

refugees and the IDP to vote by absentee ballot at any early stage.78

(c) The Commission on Human Rights (CHR). Annex 6 (Chapter 2) provided

for the establishment of a human rights commission composed of the Office of the

Human Rights Ombudsman (OHRO) and the Human Rights Chamber (HRC) and

empowered to consider post-war violations of fundamental human rights and

freedoms stated in Chapter One, Article I of this Annex.79

Article IV(2) provided

for the appointment of the Ombudsman by the OSCE, after consultation with the

Parties, for a non-renewable five-year term. Gret Haller, diplomat and former

Swiss permanent representative to the CE and former member of its

Parliamentary Assembly, was appointed to hold this position on 21 December

1995, although she was only able to take it up formally on 27 March 1996. The

78 Article III(1) of Annex 3 reads: “The Commission shall adopt electoral rules and regulations

regarding: the registration of political parties and independent candidates; the eligibility of

candidates and voters; the role of domestic and international election observers; the ensuring of an

open and fair electoral campaign; and the establishment, publication, and certification of definitive

election results. The Parties shall comply fully with the electoral rules and regulations, and internal

laws and regulations notwithstanding.” See Annex 3, supra note 68, at Article III(1) ; Ensure

Human Rights, supra note 68, at 23-24; H. Silajdžić, “Why Dayton must be Changed,” The

Bosnian Institute, Bosnia Report No. 15-16 (March-June 2000) 1-2; J. Reid, “The Dayton Accord

Elections in Bosnia-Herzegovina 1996,” in M. Shatzmiller, ed., Islam and Bosnia: Conflict

Resolution and Foreign Policy in Multi-Ethnic States (Montreal, Quebec: McGill-Queen’s

University Press, 2002) 150 [hereinafter Reid]; T. Donais, “Division and Democracy: Bosnia’s

Post-Dayton Elections,” in M. Spencer, ed., The Lessons of Yugoslavia (New York, N.Y.: JAI,

2000) 230 [hereinafter Donais].

79

These rights, which should be enjoyed by all the people of the Republic of Bosnia and

Herzegovina, without discrimination on any ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin, association with a national minority, property,

birth or other status, were to include: the right to life; the right not to be subjected to torture or to

inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude or

to perform forced or compulsory labour; the rights to liberty and security of person; the right to a

fair hearing in civil and criminal matters, and other rights relating to criminal proceedings; the

right to private and family life, home, and correspondence; freedom of thought, conscience and

religion; freedom of expression; freedom of peaceful assembly and freedom of association with

others; the right to marry and to found a family; the right to property; the right to education; and

the right to liberty of movement and residence. See Annex 6, supra note 68, at Article I.

321

ombudsperson, who maintained a main office in Sarajevo, as well as another one

in the RS, was responsible for investigating violations of human rights covered by

various human rights instruments listed in an appendix to Annex 6.80

Moreover,

she/he had the power to conduct ex officio investigations of severe or systematic

violations committed on prohibited grounds, by visiting detention centres or

gaining access to the required official documents. At the end of an investigation,

the ombudsperson was required to issue her/his findings and conclusion in a

report. In the event that the defendant party failed to comply with the

Ombudsperson’s conclusion, she/he might forward the report to the HR, or refer

the case to the HRC.81

The HRC, which was considered the highest human rights court in Bosnia-

Herzegovina, had to accept applications referred to it by the ombudsperson or

directly by individuals. Unlike the CCB-H, the Chamber was formed of eight

European jurists and six Bosnian judges, two of them Muslims, two Croats, and

80 In addition to the European Convention for the Protection of Human Rights and

Fundamental Freedoms and its protocols, Annex 6 called upon the Bosnian parties to adhere to the

following international and regional human rights conventions: 1948 Convention on the

Prevention and Punishment of the Crime of Genocide; 1949 Geneva Conventions I-IV on the

Protection of the Victims of War, and the 1977 Geneva Protocols I-II thereto; 1951 Convention

relating to the Status of Refugees and the 1966 Protocol thereto; 1957 Convention on the

Nationality of Married Women; 1961 Convention on the Reduction of Statelessness; 1965

International Convention on the Elimination of All Forms of Racial Discrimination; 1966

International Covenant on Civil and Political Rights and the 1966 and 1989 Optional Protocols

thereto; 1966 Covenant on Economic, Social and Cultural Rights; 1979 Convention on the

Elimination of All Forms of Discrimination against Women; 1984 Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment; 1987 European Convention on the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment; 1989 Convention on

the Rights of the Child; 1990 Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families; 1992 European Charter for Regional or Minority Languages; and

1994 Framework Convention for the Protection of National Minorities.

81

By 4 October 1999, the office of the ombudsperson had registered 3,454 cases, and

approximately 55,000 individuals sought either advice or intervention from the ombudsperson.

More than 50,000 of these cases were relating to property. See Annex 6, supra note 68, at Articles

IV-V; Ensure Human Rights, supra note 68, at 25-26; F. Bieber, Post-War Bosnia: Ethnicity,

Inequality and Public Sector Governance (New York, N.Y.: Palgrave Macmillan, 2006) 114

[hereinafter Bieber]; Is Dayton Failing?, supra note 72, at 29; M. Nowak, “The Human Rights

Chamber for Bosnia and Herzegovina Adopts its First Judgment,” (1997) 18 Human Rights Law

Journal 174; Palmer, supra note 75, at 366-367; Post Dayton, supra note 68, at 3; Sloan, supra

note 68, at 213.

322

two Serbs, who were appointed by the CE. Before making a decision to accept a

complaint, as in the case of the ECHR, the Chamber would have to ensure that the

case met the admissibility criteria stipulated in Article VIII of Annex 6. Four

years after the creation of the Chamber, it had registered around 2,800 cases,

reviewed 307, and issued 160 decisions. Less than ten percent of the decisions

were implemented, although Article XI(6) provided that the Chamber’s decisions

should be implemented by Bosnia-Herzegovina and its entities.82

(d) The Commission for Displaced Persons and Refugees (CDPR). Annex 7

(Chapter 2) provided for the creation of an independent CDPR mandated to

“receive and decide any claims for real property in Bosnia-Herzegovina, where

the property has not voluntarily been sold or otherwise transferred since 1 April

1992, and where the claimant does not now enjoy possession of that property.

Claims may be for return of the property or for just compensation in lieu of

return.” Accordingly, the Commission was expected to award the return of the

property or compensation in lieu of return but not explicitly call for the return of

refugees and IDPs to their homes, which they were forced to leave during

hostilities. Furthermore, it had no express power to order the return of the

contents of the destroyed houses, including furniture and personal commodities,

or compensation for the cost of restoring damaged property. However, the

Commission’s decisions were final and binding for all parties, who were obligated

to respect and implement these decisions in good faith.83

The DPA gave a big foothold to regional civilian human rights monitoring

bodies. The OSCE was given a major role in confidence building measures,

82 Annex 6, supra note 68, at Article VIII; Ensure Human rights, supra note 68, at 26-27; Is

Dayton Failing?, supra note 72, at 28; Palmer, supra note 75, at 367; Sloan, supra note 77, at 214.

83

Annex 7, supra note 68, at Chapter Two; Cousens, supra note 68, at 71-72; Ensure Human

Rights, supra note 68, at 27-28; Is Dayton Failing? supra note 72, at 34; M. Nowak, “Has Dayton

Failed?” in C. Solioz & T. Voael, eds., Dayton and beyond: Perspectives on the Future of Bosnia

and Herzegovina (Baden-Baden: Nomos, 2004) 47-48 [hereinafter Nowak]; R. Keane,

Reconstituting Sovereignty: Post-Dayton Bosnia Uncovered (Aldershot: Ashgate, 2002) 86-87

[hereinafter Keane]; Sloan, supra note 77, at 216.

323

supervising elections, and monitoring human rights.84

Although the DPA was not

clear enough on the respective roles of the EU and the ECMM in the

implementation process, both of them were invited to monitor human rights and

establish local offices. In addition to the EU’s role in administering the city of

Mostar, the HR was obliged to report on the progress of the DPA’s

implementation to the EU.85

In cooperation with the UN Centre for Human

Rights, the CE Human Rights Directorate played a major role in developing and

carrying out training programs. Moreover, the Committee of Ministers had

appointed eight of the fourteen members of the Bosnian HRC, while the ECHR

had appointed three members of the CCB-H, as well as three members and the

chairperson of the CDPR.86

On the international level, the DPA created military and civilian bodies to

implement its provisions. Annex 1-A, Article I(1) invited the UN Security

Council to adopt a resolution and arrangements to establish the IFOR, a

multinational military force composed of ground, air, and maritime units from

NATO and other nations. The aim of the IFOR was to implement the military

aspects of the peace settlement, including the compliance of all parties with the

provisions of the DPA and particularly those relating to the cessation of hostilities

and arms control provisions.87

On 20 December 1995, the NATO deployed an

implementation force of approximately 60,000 troops to Bosnia-Herzegovina. By

84 Annex 1-B, supra note 68, at Article III; Annex 3, supra note 68, at Article II; Annex 6,

supra note 68, at Article IV; Ensure Human Rights, supra note 68, at 19.

85

Annex 6, supra note 68, at Article XIII(2); Annex 10, supra note 68, at Article II(1); Ensure

Human Rights, supra note 68, at 30.

86

Annex 4, supra note 68, at Article VI(1); Annex 6, supra note 68, at Article VII(2); Ensure

Human Rights, supra note 68, at 20.

87

Annex 1-A, supra note 68, at Article I(1); Cousens, supra note 68, at 37; D. Orsini,

Multinational Operations in Somalia, Haiti and Bosnia: A Comparative Study (M.A., Department

of Political Science, McGill University, 1997) 61 [hereinafter Orsini]; UN Security Council’s

Resolution 1031 (1995), Implementation of the Peace Agreement for Bosnia and Herzegovina and

Transferring of Authority from UNPROFOR to the Multinational Implementation Force (IFOR)

(15 December 1995), UN Doc. S/RES/1031 (1995).

324

June 1996, the IFOR had separated the warring factions, consolidated the

boundary lines of the entities, moved their forces and heavy weapons to approved

sites, and created a joint Military Commission. Moreover, the IFOR was

authorized under Annex 1-A to use necessary force to ensure the parties’

compliance with the provisions of this agreement. Annex 1-A required all parties

to cooperate fully with the IFOR, including investigations, advisors, monitors, and

observers. In Article VI(3) the parties agreed that the IFOR had the right to

perform certain supporting tasks associated with the peace settlement, including

free and fair elections, assisting the UNHCR and other organizations in their

humanitarian mission, and helping the ICTY to arrest and bring war crimes

suspects to justice.88

The IFOR’s mandate came to an end on 20 December 1996, but the

continued need for external military forces to ensure peace and security in Bosnia-

Herzegovina required NATO to replace the IFOR with a relatively smaller

Stabilization Force (SFOR), comprising about 32,000 troops, with the same rules

of engagement, and a mandate until June 1998. The SFOR follow-on-force began

its mandate on 20 June 1998 as an Operation Joint Force (OJF) to continue

providing a stable environment and promote the implementation of the provisions

of the DPA by cooperating with the Office of the High Representative (OHR), the

OSCE, the UNHCR, the UN Mission to Bosnia-Herzegovina and its International

Police Task Force, the ICTY, and many other governmental and non-

governmental international organizations. The SFOR, which was reduced to

approximately 7,000 troops from twenty NATO and eight non-NATO nations,

88 A Fractured Peace: The Former Yugoslavia (Council of Europe, Report, 1998) 78

[hereinafter Fractured Peace]; Annex 1-A, supra note 68, at Article VI(3); Ensure Human Rights,

supra note 68, at 6; Gow, supra note 2, at 286; “Implementation Force: Fact Sheet,” in

International Roundtable on Human Rights in Bosnia and Herzegovina. A Conference Held in

Vienna, Austria, 4-5 March 1996, ed., C. Strohal (Vienna, Austria: Federal Ministry for Foreign

Affairs, 1996) 54; R. Holbrooke, To End a War: The Inside Story, from Sarajevo to Dayton (New

York, N.Y.: Random House, 1998) 203 [hereinafter Holbrooke]; Sloan, supra note 77, at 215;

Stabilization Force: Transfer of Authority, North Atlantic Treaty Organization, Report (5 October

2004) 22 [hereinafter Stabilization Force].

325

concluded its mission on 2 December 2004, and handed over its duties to a

European Union Force (EUFOR), which was committed to ensuring continued

compliance with the DPA and promoting Bosnia’s efforts towards European

integration.89

Although the IFOR’s efforts in implementing the military aspects of the

peace settlement were viewed as a success, there were a number of problems

relating to the IFOR mandate that seriously affected guarding and promoting

human rights issues. Contrary to the UNPROFOR Standard Operating

Procedures, Annex 1-A didn’t explicitly give the IFOR any human rights

reporting responsibilities or the authority to intervene with local authorities to

protect individuals’ human rights, despite the UN General Assembly’s Resolution

50/193, which urged all UN bodies involved in the peace settlement in the former

Yugoslavia to work closely with the UNCHR, the special rapporteur, and the

ICTY, and provide them with any information on the situation of human rights in

Bosnia-Herzegovina. Furthermore, the DPA neither expressly mentioned that the

IFOR troops had to be trained to observe the norms of the international

humanitarian and human rights law, as well as the OSCE Code of Conduct

adopted at the Budapest Conference in December 1994, nor did it provide for any

mechanisms at the international level for investigating and prosecuting human

rights violations. In fact, a number of the UNPROFOR troops, the IFOR’s

predecessor, were officially charged with human rights violations, including the

rape of Muslim women in a Serbian detention camp and a hospital near Sarajevo,

looting, and trafficking in women. Finally, the DPA provided the IFOR with a

passive, ineffective, and toothless law, which authorized it to arrest any identified

war criminals it encountered or anyone interfering with its mission, but not to try

89 Aid and Accountability: Dayton Implementation, International Crisis Group, Bosnia Report

No.17, 1996, 14 [hereinafter Dayton Implementation]; J. Kim, Bosnia and the European Union

Military Force (EUFOR): Post-NATO Transition, Congressional Research Service Report for

Congress, The Library of Congress, Order Code RS 21774 (14 March 2005) 1 [hereinafter Kim];

R. Keane, “EUFOR Mission for Bosnia by the End of 2005,” European Security Review 23 (July

2004) 1 [hereinafter Keane]; Stabilization Force, supra note 88, at 23.

326

to track them down, a policy that kept the most wanted war criminals at large

despite being indicted by the ICTY ten years earlier. 90

On the civilian level, the DPA had established the following international

civilian human rights monitoring and implementation bodies:

(a) The OHR.91

The High Representative may have the most difficult task, that

of ensuring the compliance of all parties in implementing the DPA. Annex 10,

Article V states, as already mentioned above, that the HR is the final authority

regarding interpretation of the peace agreement with respect to civilian

implementation. At the same time, the UN Security Council’s Resolution 1022

gave him/her the authority to re-impose sanctions on the FRY and the RS should

they fail to implement the peace agreement. Moreover, the HR chaired the

Steering Committee of the Peace Implementation Council (SCPIC) and assigned

the responsibilities of coordinating the activities of the civilian organizations in:

implementing the peace agreement; participating in the donors’ meetings;

reporting to the United Nations, the European Union, The Russian Federation, and

90 Code of Conduct on Politico-Military Aspects of Security, Adopted at the 91

st Plenary

Meeting of the Special Committee of the OSCE Forum for Security Co-operation in Budapest on 3

December 1994, DOC. FSC/1/95; Ensure Human Rights, supra note 68, at 7-9; G. Wilson, “The

Dayton Accords Reshape Europe,” in R. Clark, et al., eds., NATO in the Balkans: Voices of

Opposition (New York, N.Y.: International Action Center, 1998) 153 [hereinafter Wilson]; Post

Dayton, supra note 68, at 3; Situation of Human Rights in the Republic of Bosnia and

Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and

Montenegro), GA Res. A/RES/50/193 (22 December 1995) Paragraph 24; UN Security Council’s

Resolution 1019 (1995), Condemning in the Strongest Possible Terms All Violations of

International Humanitarian Law and of Human Rights in the Territory of the Former Yugoslavia

and Demanding that all Concerned Comply Fully with their Obligations in this Regard (9

November 1995), UN Doc. S/RES/1019 (1995); V. Ghebali & A. Lambert, The OSCE Code of

Conduct on Politico-Military Aspects of Security: Anatomy and Implementation (Boston, Mass.:

Martinus Nijhoff Publishers, 2005) 180.

91

This position was held by Nils Daniel Carl Bildt from 1995 to 1997. This Swedish politician

and diplomat, born 5 July 1949, had also held the positions of prime minister of Sweden 1991-

1994, leader of the Liberal Conservative Moderate Party 1986-1999, and member of the Swedish

Parliament 1979-2001; Carlos Westendorp, a Spanish diplomat who held the position of the High

Representative between 1997 and 1999; Wolfgang Petritsch (1999-2002), an Austrian diplomat

who served as Austria’s Permanent Representative to the United Nations in Geneva; and Jeremy

John Durham Ashdown, of the United Kingdom, from 2002 to present, invariably known as Paddy

Ashdown. Baron Ashdown, who was born in New Delhi, India on 27 February 1941, had held the

position of the leader of the Liberal Democrats from 1988 until 1999.

327

other interested governments and organizations; and providing guidance and

receiving reports from the Commissioner of the International Police Task Force

(IPTF). For the past ten years, the HR has maintained a narrow interpretation of

his/her authority, and has remained silent regarding the non-compliance of the

parties with several aspects of the DPA. The lack of an enforcement mechanism

has obliged the HR to tolerate the parties’ failure to comply with the DPA’s

provisions.92

(b) The UN High Commissioner for Human Rights (UNHCHR). In spite of the

fact that the DPA had invited the UNHCHR to establish local offices to monitor

the human rights situation in Bosnia-Herzegovina, it failed to create a unified

human rights monitoring operation in the peace agreement, a situation that

burdened the implementation process with a number of serious problems.93

(c) The UN Special Rapporteur on the Situation of Human Rights in the

Former Yugoslavia. This position was established by a resolution adopted at the

UNHCHR special session in August 1992, and was considered one of the local

country mechanisms, provided for by Annex 6, Article XIII(2), to monitor human

rights in Bosnia-Herzegovina. Tadeusz Mazowicki, a former Polish Prime

Minister, was the first person to hold this position. During his term, he produced

and submitted eighteen reports on the situation of human rights in the former

Yugoslavia, 94

including reports on wartime systematic rape and sexual slavery.

92 Annex 10, supra note 68, at Article I(2), Article II(1) & Article V; B. Boutros-Ghali,

“Report of the High Representative for the Implementation of the Bosnian Peace Agreement,” A

Letter to the President of the Security Council from Boutros Boutros-Ghali, the Secretary-General

of the United Nations (14 March 1996), UN Doc. S/1996/190; Ensure Human Rights, supra note

68, at 10-11; Hudson, supra note 9, at 121; Is Dayton Failing?, supra note 72, at 42; Post Dayton,

supra note 68, at 2; UN Security Council’s Resolution 1022 (1995), Deciding that Certain

Measures Imposed by Prior Resolutions will Terminating after Demilitarization and the

Occurrence of Free and Fair Elections (22 November 1995), UN Doc. S/RES/1022 (1995), 35

I.L.M. 259-260 (1996); UN Security Council’s Resolution 1031 (1995), supra note 87.

93

Annex 6, supra note 68, at Article XIII (2); Ensure Human Rights, supra note 68, at 12.

94

Tadeusz Mazowiecki had submitted the following reports: E/CN.4/1992/S-1/9 of 28 August

1992; E/CN.4/1992/S-1/10 of 27 October 1992; A/47/666-S/24802 of 17 November 1992;

E/CN.4/1993/50 of 10 February 1993; E/CN.4/1994/3, the First Periodic Report of 5 May 1993;

E/CN.4/1994/4, the Second Periodic Report of 19 May 1993; E/CN.4/1994/6, the Third Periodic

328

He resigned after the international community’s failure to prevent the horrific

massacres of Bosnian Muslims at the towns of Žepa and Srebrenica in 1995.

(d) The International Police Task Force (IPTF). Based on Annex 11 (2), the

UN Security Council established the IPTF by adopting Resolution 1035 (1995),

the only UN human rights civilian monitoring and implementation body to

originate as part of the UN mission in Bosnia and Herzegovina. Article III(1) of

Annex 11 specified the IPTF’s mandate as including: the monitoring, observing

and inspecting of law enforcement activities and facilities, as well as associated

judicial institutions; advising and training law enforcement personnel; facilitating

the parties’ law enforcement activities; assessing threats to public order and

advising on the capability of law enforcement agencies to deal with such threats;

and accompanying the parties’ law enforcement personnel when carrying out their

responsibilities.95

As it has no powers of arrest, the IPTF Commissioner,

appointed by the UN Secretary-General in consultation with Security Council, has

to notify the HR and the IFOR commander of any failures on the parties’ side to

cooperate with the IPTF. Thus in spite of its mandate to oversee the judicial

systems in Bosnia-Herzegovina, the IPTF has achieved very little in the past ten

years. This has been due to the fact that the sponsors of the DPA, particularly the

United States, have dragged their feet over providing funding, logistics, and

Report of 26 August 1993; E/CN.4/1994/8, the Fourth Periodic Report of 6 September 1993;

E/CN.4/1994/47, the Fifth Periodic Report of 17 November 1993; E/CN.4/1994/110, the Sixth

Periodic Report of 21 February 1994; E/CN.4/1995/4, the Seventh Periodic Report of 10 June

1994; E/CN.4/1995/10, the Eight Periodic Report of 4 August 1994; A/49/641-S/1994/1252, the

Ninth Periodic Report of 4 November 1994; E/CN.4/ 1995/ 54, the Special Report on the Media

of 13 December 1994; E/CN.4/1995/57, the Tenth Periodic Report of 9 January 1995;

E/CN.4/1996/3, the Eleventh Periodic Report of 21 April 1995; E/CN.4/1996/6, the Twelfth

Periodic Report of 5 July 1995; and E/CN.4/1996/9, the Thirteenth Periodic Report with Letter of

Resignation of 22 August 1995. See also Annex 6, supra note 68, at Article XIII(2); Ensure

Human Rights, supra note 68, at 13.

95

Annex 11, supra note 68, at Article II(2) & Article III(1); UN Security Council’s Resolution

1035 (1995), Establishment of a UN Civilian Police Force to be Known as the International

Police Task Force (IPTF) and a UN Civilian Office for the Implementation of the Peace

Agreement in Bosnia and Herzegovina (21 December 1995), UN Doc. S/RES/1035 (1995).

329

trained personnel for the IPTF. Moreover, among the 1,700 IPTF personnel, most

of whom were demobilised soldiers, there is likely to be a higher percentage of

war criminals willing to turn a blind eye to and largely overlook violations of

human rights by police forces in Western Herzegovina and the RS, who in their

turn often operate with impunity, shelter war criminals and refuse to investigate

ethnically motivated crimes. Reporting periodically to the HR and to the UN

Secretary-General has not been enough. For the IPTF to fulfil its role in

implementing the DPA provisions, it should work with the human rights

monitoring mission and support its work to investigate serious abuses and

violations of human rights. It should intervene to prevent or stop abuses,

particularly those committed by local police forces, and train police officers how

to respect international humanitarian and human rights law.96

(e) The UN High Commissioner for Refugees (UNHCR). In conformity with

its mandate under the DPA, the UNHCR worked together with the parties and the

countries of asylum to set up a repatriation plan to assist and promote the early

return of hundreds of thousands of Bosnian refugees, most of whom were

ethnically cleansed from their homes under the threat of mass rape and killing.

For this purpose, the UNHCR held a meeting in Geneva on 16 January 1996,

attended by representatives of more than twenty agencies and forty governments

in addition to the representatives of the parties. Although the DPA guaranteed the

right of return to all refugees, and although the parties agreed to take all necessary

steps to prevent activities in their territories that would hinder or impede the safe

and voluntary return of refugees and IDP, 97

it neither established a specific

96 Dayton Implementation, supra note 89, at 14; Ensure Human Rights, supra note 68, at 13-

14; Is Dayton Failing, supra note 72, at 7; Post Dayton, supra note 68, at 2; Sloan, supra note 77,

at 217.

97

Annex 7, supra note 68, at Chapter 1, Articles I-IV; E. Andersen, “The Role of Asylum

States in Promoting Safe and Peaceful Repatriation under the Dayton Agreements,” (1996) 7:2

European Journal of International Law 200 [hereinafter Andersen]; Ensure Human Rights, supra

note 68, at 17; M. Mesić, “Pogledi na povratak-hrvatske i bosansko-hercegovačke izbjeglice,”

[Views about Returning Croatian and Bosnian Immigrants] (1994) 3:6 Društvena istraživanja 632.

(Serbo-Croatian); M. Shapiro, “The Lack of Implementation of Annex 7 of the Dayton Accords:

330

mechanism to monitor the implementation of all the guarantees of safe return nor

designated a specific international implementation force to oversee the suggested

plan. This neglect culminated in disappointing results, including the failure to

return the estimated numbers of refugees and displaced people.

(f) The International Criminal Tribunal for the Former Yugoslavia (ICTY).

“No peace without justice!” To make peace in Bosnia-Herzegovina, the DPA

required the parties to cooperate with the ICTY to arrest and deliver war crimes

suspects, particularly those leaders who used the rape and sexual slavery of

Bosnian women as a weapon of war. Article IX of the General Framework

Agreement (GFA) obliged the parties to cooperate fully with all entities involved

in the investigation and prosecution of war crimes and other violations of

international humanitarian law. The UN Security Council’s Resolution 1022

stated in uncompromising terms that “compliance with the requests and orders of

the International Criminal Tribunal for the Former Yugoslavia constitutes an

essential aspect of implementing the Peace Agreement.” Moreover, the Security

Council adopted Resolution 1031 requiring countries participating in the IFOR to

take all necessary measures to implement the DPA, and commanding all states to

comply with arrest warrants issued by the ICTY. This means that the parties must

act fully and cooperate with the ICTY’s warrants or orders, otherwise, would

constitute a failure to comply with provisions of the DPA. And any such failure

would entitle the UN Security Council to act under the authority of Chapter VII of

the UN Charter and impose sanctions or even use force against the non-compliant

state. However, since the ICTY,98

unlike domestic criminal courts, has no

Another Palestinian Crisis?” (1999) 14:2 American University International Law Review 576

[hereinafter Shapiro].

98 Dayton Implementation, supra note 89, at 7; Dayton Implementation: The Apprehension

and Prosecution of Indicted War Criminals, US Institute of Peace, Report 1997, 3 [hereinafter

Dayton and War Criminals]; Ensure Human Rights, supra note 68, at 18; General Framework

Agreement, supra note 68, at Article IX; Post Dayton Bosnia, supra note 72, at 364; Rubin, supra

note 68, at 42, UN Security Council’s Resolution 1022, supra note 92; T. Meron, “Answering for

War Crimes: Lessons from the Balkans,” (1997) 76:1 Foreign Affairs 3-4; UN Security Council’s

331

enforcement mechanisms to execute its arrest warrants and orders, the parties,

particularly the governments of Croatia, the FRY, and the RS, haven’t taken

serious measures to cooperate with the ICTY over the past ten years. To date, the

most wanted war criminals suspects are still at large in spite of the presence of

thousands of IFOR, SFOR, and EUFOR troops on the ground.

(g) The UN Expert on Special Process on Missing Persons in the Territory of

the Former Yugoslavia. Regrettably, the DPA didn’t provide for the establishment

of a commission or a mechanism to resolve the cases of approximately 20,000

disappeared and missing persons in Bosnia-Herzegovina and 5,000 in Croatia.

The great majority of the victims were civilian men and women of Muslim origin,

who were subjected to horrendous acts of torture, systematic rape, and other

brutalities. Without imposing any obligation or establishing a role for the UN

Working Group on Enforced or Involuntary Disappearances (UNWGEID), the

DPA required the Parties to “provide information through the tracing mechanisms

of the ICRC on all persons unaccounted for.” In addition to the Special

Rapporteur on the former Yugoslavia, the UNCHR established the position of the

expert on missing persons in the territory of the former Yugoslavia as a member

of the UNWGEID. He is mandated to gather information about and seek to

resolve individual cases of missing persons from the former Yugoslavia. The

expert however, resigned in protest over the parties’ lack of political will to

provide information on disappeared or missing persons in their regions, as well as

over the international failure to endorse his proposal to establish a multilateral

commission on missing persons. Accordingly, the mandate of the UN expert was

discontinued as of April 1997.99

Resolution 1031, supra note 87; V. Peskin, Virtual Trial: International War Crimes Tribunals and

the Politics of States Cooperation in the former Yugoslavia (Ph. D., University of California,

Berkeley, 2005) 183 [hereinafter Peskin].

99

Annex 7, supra note 68, at Article V; Ensure Human Rights, supra note 68, at 18-19; UN

Commission on Human Rights, Final statement by Mr. Manfred Nowak, Expert, United Nations

Special Process on Missing Persons in the territory of the Former Yugoslavia at the fifty-third

332

The DPA has failed to achieve most of its goals. Fourteen years after it was

signed, the implementation of its provisions is still incomplete. It has failed to

produce any kind of reconciliation, peace, or integration among the conflicting

ethnic entities in Bosnia-Herzegovina; hundreds of thousands of refugees and

IDPs have been unable to return safely to their homes in territories controlled by

other ethnic groups; thousands of men and women are still missing or

involuntarily disappeared, particularly those women who were subjected to gang

rape and sexual slavery; and major war criminals are still at large and unpunished,

in spite of the DPA’s fine-sounding assurances that it will prosecute, arrest, and

deliver them to the ICTY. This failure was incorporated with the parties’

reluctance to comply with the DPA’s critical components, including their

commitment to the principles of peace and justice, and with the international

community’s failure to enforce these principles. The UN Security Council cannot

act without the will of the superpower states, including the United States, France,

and the United Kingdom, as permanent members of the UN Security Council,

parties to the Genocide and Geneva Conventions, and the major powers that led

the IFOR command, for these which lacked the political motivation to create

effective bodies to carry out the DPA’s mandate. The following pages will discuss

the phases of the failure of local and international will to implement the DPA’s

provisions.100

session of the Commission on Human Rights. Online: UN Commission on Human Rights, Geneva,

26 March 1997 <http://www.unhchr.ch/html/country/yugmiss.htm#reports> (Accessed on: 22

November 2005); Keane, supra note 83, at 89; Nowak, supra note 83, at 47; UN Commission on

Human Rights, Special Process on Missing Persons in the Territory of the Former Yugoslavia:

Report Submitted to Mr. Manfred Nowak, Expert Member of the Working Group on Enforced or

Involuntary Disappearances, Responsible for the Special Process, Pursuant to Commission

Resolution 1996/71, E/CN.4/1997/55 (15 January 1997) 4.

100

Bosnia-Hercegovina: A Failure in the Making-Human Rights and the Dayton Agreement,

Human Rights Watch, June 1996, Vol. 8, No. 8 (D), 3 [hereinafter Failure in the Making]; Palmer,

supra note 75, at 368; S. Ricchiardi, “Women Say NATO Won’t Arrest Rapists: War Crimes

Suspects Live Openly in Bosnia, while Troops Pay no Attention,” St. Louis Post-Dispatch (16

June 1998) A8; W. Sharp, “International Obligations to Search for and Arrest War Criminals:

333

At the local or national level, none of the parties has fully honoured the

commitments and obligations agreed upon in the DPA, specifically:

(a) To cooperate with the ICTY and the HRC. The parties ignored obligations

imposed on them by Article (IX) of the GFA to cooperate fully with the

investigation and prosecution of war crimes and other violations of international

law, and overlooked Article 29 of the statute of the ICTY, which also imposed a

similar duty on them, as members of the international community, to comply

immediately with the norms of this Article and fulfil their commitments to arrest,

detain, and transfer the indicted war criminals to the ICTY. The parties,

particularly the RS, the FRY, and Croatia have failed to cooperate with the ICTY

in arresting and turning over indicted persons for trial.101

The cooperation of the

Government Failure in the Former Yugoslavia,” (1997) 7:2 Duke Journal of Comparative and

International Law 416 [hereinafter Sharp].

101 In this letter to the President of the UN Security Council, confirming the refusal of the FRY

to cooperate with the ICTY, Antonio Cassese, president of the ICTY, wrote: “To this day,

however, the Federal Republic of Yugoslavia has not executed a single arrest warrant addressed to

it!” Similarly, Croatia refused the so-called Subpoena Duces Tecum, issued by the ICTY in

January 1997, to the government of Croatia relating to the prosecution of Tihomir Blaskić, a

Bosnian Croat General accused of ethnic cleansing and related crimes in Central Bosnia.

Moreover, Franjo Tudjman, the then Croatian president, threatened that his country would stop all

kinds of cooperation with the ICTY if it indicted Croatian commanders accused of committing

atrocities in Eastern Slavonia in 1995. Both republics, the FRY and Croatia, went further when

their relations reached a nadir with the ICTY by protecting and promoting notorious war crimes

suspects. However, in a recent interview with lateline, an Australian TV program broadcast on 23

November 2005, marking the tenth anniversary of the DPA, Condoleezza Rice, the US Secretary

of State said: “We must be very clear on this point! To enjoy the full blessings of integration [with

the European Union], Bosnia-Herzegovina must fully confront the demons of its past, in particular

the urgent and long overdue need to bring to justice war criminals like Ratko Mladić and Radovan

Karadzić.” See A. Cassese, “Refusal of the Republic of Yugoslavia to Cooperate with the ICTY,”

A Letter to the President of the Security Council from Antonio Cassese, President of the

International Criminal Tribunal for the Former Yugoslavia (25 April 1996); The Appeals Chamber

“Subpoena Decision,” Online: Tribunal Update 50 (27-31 October 1997) http://www.iwpr.net

(Accessed on : 21 November 2005); Dayton and War Criminals, supra note 98, at 2; Dayton

Implementation, supra note 89 at 7; Failure in the Making, supra note 100, at 7; General

Framework Agreement, supra note 68, at Article IX; H. Fitzsimmons, EU and US Demand Bosnia

Arrest Karadžić, Online: Lateline, Australian Broadcasting Corporation, 23 November 2005

<http://www.abc.net.au/lateline/content/2005/s1515474.htm> (Accessed on: 3 December 2005);

Palmer, supra note 75, at 370-373; Statute of the International Criminal Tribunal for the Former

Yugoslavia, United Nations SCOR, 48th

Sess., 3175. Annex, at 40, UN Doc. S/25704, 3 May 1993.

334

parties with the HRC is essential to carrying out its work. Articles X & XI of

Annex 6 request the parties to provide all relevant information, cooperate, and

implement the decisions of the chamber. Nevertheless, based on information

provided in the Chamber’s Annual Report, 1996-1997, the central government of

Bosnia-Herzegovina had by that time failed to appoint an agent to communicate

between the Ministry of Justice and the Chamber, had responded only to one

application out of several hundred cases filed against it, and had never

participated in any public hearing where it was a respondent party. In this

connection, the government of the RS has also failed to observe its duties

regarding the Chamber. In 1998, for instance, it appointed Petko Čančar, the

wartime mayor of Foča, leader of the Foča Crisis Committee, and responsible for

many war crimes, including summary executions, mass rape, sexual slavery, and

torture, as minister of justice. Čančar proceeded to undermine any application

transmitted from the Chamber to the Ministry, particularly those related to

missing men and women detained in Foča under his command.102

(b) Restrictions on freedom of movement and the right to return. Contrary to

what they committed themselves to in the DPA, the Parties used all possible

means, including violence, to curtail the movement and prevent minority refugees

and IDPs from returning to their homes. The right to movement and residence

without discrimination on any ground such as religious, political, national, social

or racial origin is recognized in the ICCPR, and guaranteed in Article I(13) &

(14), Chapter I of Annex 6. Moreover, Article I(1) of Annex 3 declares the right

(As Amended on 19 May 2003 by Security Council’s Resolution 1481) [hereinafter Statute of the

ICTY].

102

Annex 6, supra note 68, at Article X-XI; The Annual Report of the Human Rights Chamber

for Bosnia and Herzegovina, 1996-1997 (Sarajevo: The Human Rights Chamber for Bosnia and

Herzegovina, 1998) 13; Bosnia-Hercegovina: “A Closed, Dark Place”: Past and Present Human

Rights Abuses in Foča, Human Rights Watch, July 1998, Vol.10, No.6 (D), at p. 25-26

[hereinafter Abuses in Foča]; M. O’Connor, “West Seeing Payoff from its Support for Flexible

Leaders in Bosnia,” The New York Times (24 January 1998) A 1; Palmer, supra note 75, at 368-

369.

335

to free movement throughout the Republic of Bosnia and Herzegovina as a

fundamental prerequisite for fair and free elections. In spite of efforts made by the

IFOR and IPTF to remove fixed checkpoints throughout Bosnia-Herzegovina, 103

nationalist leaders maintaining ethnic separation and local police forces in both

entities continue to be the greatest obstacle to the freedom of movement of

refugees and IDPs, as well as to the movement of the representatives of

international organizations.

Similarly, the DPA exhorted the parties to facilitate the return of refugees

and IDPs to their homes. Article I (1) & (2) of Annex 7 provides that all refugees

and IDPs have the right to return to their homes of origin in safety and without

risk of harassment, intimidation, and discrimination. In addition to the above

obstacles, however, there are a number of technical problems, that still hinder the

refugees’ return, besides the lack of political will on the part of NATO to create

an effective mechanism to enforce the provisions of Annex 7. These include: the

fact that the war has damaged or totally destroyed more than 500,000 apartments

and houses, requiring money and manpower for reconstruction; the fact that there

are still more than six million mines scattered throughout Bosnia-Herzegovina;

103 Annex 3, supra note 68, at Article I(1); Annex 6, supra note 68, at Chapter I, Article I (13

& 14); Bosnia-Herzegovina: Who’s Living in My House? Obstacles to the Safe Return of Refugees

and Internally Displaced People, Amnesty International, March 1997, AI-Index: EUR. 63/01/97,

111 [hereinafter Refugees Return]; D. Scheffer, “International Judicial Intervention,” (1996) 102

Foreign Policy 47 [hereinafter Scheffer]; Failure in the Making, supra note 100, at 9; Going

Nowhere Fast: Refugees and Internally Displace Persons in Bosnia and Hercegovina,

International Crisis Group, Bosnia Report, No.23, 1997, 99 [hereinafter Going Nowhere]; I.

Daalder & M. Froman, “Dayton’s Incomplete Peace,” (1999) 78:6 Foreign Affairs 110

[hereinafter Daalder]; International Covenant on Civil and Political Rights, (1966), GA Rex. 2200

(XXI), 21 UN GAOR, Supp. (No.16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 302, 1976

Can. T.S. No. 47 (1966). (Entered into force on 23 March 1976) [hereinafter Civil Rights]; J.

Malik, “The Dayton Agreement and Elections in Bosnia: Entrenching Ethnic Cleansing through

Democracy,” (2000) 36:2 Stanford Journal of International Law 326 [hereinafter Malik]; Kim,

supra note 89, at 6; M. Cox, “The Right to Return Home: International Intervention and Ethnic

Cleansing in Bosnia and Herzegovina,” (1998) 47:3 International and Comparative Law Quarterly

603 [hereinafter Cox]; Minority Return or Mass Relocation?, International Crisis Group, Bosnia

Report, No.33, 1998, 112 [hereinafter Minority Return]; Overview of Dayton, supra note 73, at 1;

Report of the High Representative for Implementation of the Bosnian Peace Agreement to the

Secretary-General of the United Nations, Online: Office of the High Representative

<http://www,ohr.int/reports/r970416a.htm> (Accessed on: 13 December 2005); UN Commission

on Human Rights, Situation of Human Rights in the Territory of the Former Yugoslavia, UN Doc.

E/CN.4/1997/56 (29 January 1997) 113.

336

the psychological and social barriers that divide Bosnians, who believe that living

as a minority in territories under the control of another ethnic group poses a threat

to their security; and finally, the added complications, of the stipulation that

compensation for lost or damaged property be offered in lieu of return. However,

ten years after the signing of the DPA, and in spite of the UNHCR and the UN

Mine Action Centre (UNMAC) programs for mines clearing and returning

refugees and IDPs, the UNHCR’s records show that, by the end of 2004, some

470,000 IDPs, leaving aside for the moment refugees in neighbouring countries

were still seeking solutions.104

The national failure to implement the DPA’s provisions has been

exacerbated by similar failure at the international level, which was manifested in:

(a) The IFOR/SFOR failure to protect civilians and to search for, arrest, and

deliver war crimes suspects to the ICTY. Despite the extraordinary range of

104 Bosnia’s Next Five Years: Dayton and beyond, US Institute of Peace, Report 2000, 5

(hereinafter Dayton and beyond]; C. Cviic, “Running Late: But is Dayton Still on Track?” The

World Today 52:6 (June 1996) 146 [hereinafter Cviic]; C. Phuong, The International Protection of

Internally Displaced Persons (Cambridge, UK: Cambridge University Press, 2004) 200

[hereinafter Phuong]; Dayton and War Criminals, supra note 98, at 4; International Displacement

since Dayton, 1995-2004, Online: Global IDP <http://www.db.idpproject.org> Accessed on: 26

November 2005); Is Dayton Failing?, supra note 72, at 32; J. Schear, “Bosnia’s Post-Dayton

Traumas,” (1996) 104 Foreign Policy 94-95 [hereinafter Schear]; L. Sell, “The Serb Flight from

Sarajevo: Dayton’s First Failure,” (2000) 14:1 East European Politics and Societies

181[hereinafter Sell]; M. Albright, “Opining Statement before the House National Security

Committee,” Online: Bosnet <http://www.bosnet.org> (Accessed on: 18 March 1998); M. Cox,

“The Dayton Agreement in Bosnia and Herzegovina: A Study of Implementation Strategies,”

(1998) 69 The British Yearbook of International Law 228-229 [hereinafter Cox]; Malik, supra

note 103, at 322; P. Fagen, “The Long-Term Challenges of Reconstruction and Reintegration:

Case Studies of Haiti and Bosnia-Herzegovina,” in E. Newman & J. Selm-Thorburn, eds.,

Refugees and Forced Displacement: International Security, Human Vulnerability, and the State

(Tokyo: The United Nations University, 2003) 234-236 [hereinafter Fagen]; R. Gelbard, “Bosnia

and the Dayton Peace Agreement,” (The Pacific Council on International Policy, 27 January

1998). [Unpublished]; S. Albert, Les Réfugiés bosniaques en Europe, Paris, Editions

Montchrestien, 1995, à la p.73; S. Bose, Bosnia after Dayton: Nationalist Partition and

International Intervention (New York, N.Y.: Oxford University Press, 2002) 33 [hereinafter

Bose]; UN Commission on Human Rights, Situation of Human Rights in the Territory of the

Former Yugoslavia: Report Submitted by Ms. Elisabeth Rehn, Special Rapporteur of the

Commission on Human Rights, Pursuant to Commission Resolution 1995/89, UN Doc.

E/CN.4/1996/63 (14 March 1996); UN High Commissioner for Refugees, Bosnia Repatriation

and Return Operation, Geneva, UNHCR, 1997; UN High Commissioner for Refugees,

Community Based Reintegration Assistance to Minority Returns in Bosnia and Herzegovina:

Demining Programme, Geneva, UNHCR, 1997.

337

authority granted to the IFOR commander, including the use of necessary force to

protect the IFOR and to carry out its mandate, the IFOR has neither ensured the

security of civilians, particularly the IDPs, wanting to return to their homes, nor

has it taken the necessary measures to apprehend persons indicated by the ICTY

for grave breaches of Geneva IV and its Additional Protocol 1. The reluctance of

the IFOR to fulfil its duties to enforce the law constitutes a clear breach by the

NATO states and other countries contributing troops to the IFOR of their

obligations under the DPA’s provisions, the Geneva conventions, and the Security

Council’s Resolution 827. The IFOR/SFOR failure to cooperate fully with the

ICTY by enforcing its orders and arrest warrants has promoted a culture of

impunity, and has left the most wanted people, Radovan Karadžić and his military

commander Ratko Mladić at large.105

Replying to an open letter sent by Amnesty International to the IFOR’s

commanders and to their governments on this matter, the Legal Advisor to the

Supreme Allied Command in Europe asserted that the IFOR, as an entity, is not a

party to the Geneva Conventions and its Protocols, and consequently, it is not

bound by these instruments. This denial is in conflict with the ICRC’s

interpretation of these treaties. The ICRC considers the Geneva Conventions and

105 Karadžić and Mladić continued to travel right under the noses of the IFOR/SFOR troops,

publicly appearing in many different cities; Mladić participated in a funeral in Belgrade on 21

May 1996, while Karadžić was seen by Italian IFOR troops attending a Bosnian Serb

Parliamentary session in Pale on 20 April 1996. The IFOR military commanders intentionally

avoided arresting them as they didn’t want to repeat the debacle in Somalia, where UN troops

were killed while tracking General Aided, one of the Somalian warlords. Karadžić and Mladić

warned that they would attack the IFOR/SFOR troops if they tried to go after them. See Annex 1-

A, supra note 68, at Article VI(5); Failure in the Making, supra note 100, at 30-31; Geneva IV,

supra note 23; H. Finn, “Peace in Bosnia-Herzegovina,” (Bilkent University, 3 April 1997),

Online: Bosnet <http://www.bosnet.org> (Accessed on: 13 October 2005); Is Dayton Dead? A

Press Conference by Carl Bildt, Representative and the OSCE Spokesman, Sarajevo, Bosnia-

Herzegovina, 14 October 1996; P. Akhavan, “The Yugoslav Tribunal at a Crossroads: The Dayton

Peace Agreement and beyond,” (1996) 18 Human Rights Quarterly 276 [hereinafter Akhavan]; P.

Kopf, Karadžić: Die Schande Europas [Karadžić: Europe’s Shame] (Düsseldorf: Econ

Taschenbuch Verlag, 1995) 19. (German); Protocol I, supra note 23; S. Ellingwood, “A Casualty

of Peace: The Dayton Game,” Online: Bosnet-Digest, 5:614 (1997) <bosnet-

digest@bosnet.bosnet.org> (Received on: 3 July 1999); Sharp, supra note 70, at 133; UN Security

Council’s Resolution 827 (1993), supra note 52; W. Bass, “The Triage of Dayton,” (1998) 77:5

Foreign Affairs 107 [hereinafter Bass].

338

its Protocols as customary international law binding on all parties to the

conventions, as well as to their inter-governmental organizations. Moreover, at a

conference held in September 1993,106

the state parties to the Geneva Conventions

declared that the UN peacekeeping forces are bound by international humanitarian

law, including these conventions.

(b) The IPTF’s failure to investigate alleged human rights abuses by local

police. According to Annex 11 of the DPA, the IPTF has the right to “monitor,

observe, and inspect any site or facility at which it believes that police, law

enforcement, detention, or judicial activities are taking place.” To facilitate the

IPTF’s function, Article IV(3) provides that the parties “shall allow the IPTF

personnel immediate and complete access to any site, person, activity, proceeding,

record, or other item or event in Bosnia and Herzegovina as requested by the

IPTF in carrying out its responsibilities under this agreement.” Moreover, the

IPTF was authorized by the UN Security Council’s Resolution 1088 to investigate

human rights abuses by local police personnel. The failure of the IPTF to carry

out its mandate has been due to the inadequate training and lack of any

professional background before taking part in the process, and to the IPTF

leadership’s option of limiting its tasks to the minimum. The IPTF has refrained

from any serious applications, including: conducting investigations of alleged

human rights abuses by local police; visiting civilians held by military authorities

in detention sites; taking any active role in preventing or stopping abuses; and

106 Bosnia-Herzegovina - The Duty to search for War Crimes Suspects: An Open Letter from

Amnesty International to IFOR Commanders and Contributing Governments, Amnesty

International, August, 1996, AI-Index: EUR 63/08/96 [hereinafter An Open Letter]; Ensure

Human Rights, supra note 68, at 66; J. Smith, “Secret Meetings Failed Karadžić Capture Plan:

U.S. Says French Jeopardized Mission,” The Washington Post (23 April 1998) A1 [hereinafter

Secret Meetings]; “NATO Protocols to Cover Pale,” The Times (5 June 1996) 15; “NATO Says

War Crimes are not its Main Priority,” Reuters, Sarajevo, Bosnia-Herzegovina, 28 February 1996;

P. Shenon, “From the U.S.: Mixed Signals on Bosnia War Crime Issue,” The New York Times (3

June 1996) A1; P. Smucker, “War Crimes Suspects Remain Unfinished Business in Bosnia,” The

Washington Times (I March 1998) A7; T. Walker, “Serb Suspect Defies War Crimes Court with

Death Threats,” The Times (10 May 1997) 19; W. Drodziak, “NATO Rejects Hunting Bosnian

War Crimes Suspects,” International Herald Tribune (14 June 1997) 1.

339

restructuring the post-Communist paramilitary police force by establishing an

impartial, accountable, and multi-ethnic police force. 107

(c) The failure of the OHR to enforce its decisions. Although the HR has the

highest legal authority in Bosnia-Herzegovina to interpret and implement the

DPA as articulated in Annex 10, Article I(1), and the UN Security Council’s

Resolution 1031, he lacks the enforcement mechanisms to carry out his decisions.

Consequently, he has relied on the “good will” and “full cooperation” of the

parties to implement the DPA. Furthermore, for the past ten years or so, the

consecutive representatives have failed to remove obstructionist officials due to

the OHR’s lack of power. The OHR’s lack of an enforcement mechanism has also

encouraged local authorities’ reluctance to fully comply with the DPA’s

provisions.108

On the other hand, the Rambouillet Agreement is irrefutable evidence of the

international community’s failure to deal with the drastically deteriorated

humanitarian situation in Kosovo. Although the Agreement ended the NATO’s air

strikes which lasted seventy-nine days, and to deter the massive displacement,

ethnic cleansing, wartime rape, and genocide campaigns carried out by Serbian

security and paramilitary forces against Kosovar Albanians, it did have a number

of textual problems and controversial conceptual aspects that have affected and

continue to impede the peace building process in Kosovo.109

107 Annex 11, supra note 68, at Article IV(3) & (5); Bosnia and Hercegovina: Beyond

Restraint-Politics and the Policing Agenda of the United Nations International Police Task Force,

Human Rights Watch, June 1998, Vol. 10, No. 5 (D) 1; Failure in the Making, supra note 100, at

33; Is Dayton Failing?, supra note 72, at 43; Palmer, supra note 75, at 376; UN Security Council’s

Resolution 1088 (1996), Reaffirming its Support for the Peace Agreement, as Well as for the

Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina of 10 November

1995 (12 December 1996), UN Doc. S/RES/1088 (1996).

108

Failure in the Making, supra note 100, at 35; Is Dayton Failing?, supra note 72, at 42;

Palmer, supra note 75, at 374; U. Dolgopol, “A Feminist Appraisal of the Dayton Peace Accords,”

(1997) 19:1 Adelaide Law Review 65.

109

“Clinton on Kosovo: ‘We can Make a Difference’,” The New York Times (25 February

1999) A10; E. Dauphinee, “Rambouillet: A Critical (Re) Assessment,” in F. Bierer & Ž.

Daskalovski, Understanding the War in Kosovo (London: Frank Cass, 2003) 101 [hereinafter

Dauphinee]; F. Clines, “NATO Opens Broad Barrage against Serbs as Clinton Denounces

340

Contrary to the interim agreement discussed in the Rambouillet Conference,

convened in February 1999, the post-bombing version was not clear on the

political future of Kosovo. While the first draft provided for an independence

referendum after a three year transition period, the final Agreement was silent on

this issue. This crucially ambiguous situation, which neither enforced the

territorial integrity of the FRY nor supported the Kosovar Albanians’ claim for

independence, put the peace process in a critical position and promoted a regional

instability.110

The Agreement granted the KFOR an absolute authority over Kosovo.

Accordingly, the KFOR, in contrast with the provisions of the Agreement, did not

allow the return of a limited number of Yugoslav troops to carry out

commissioned duties, including customs’ services and borders’ control. This

matter was inconsistent with the international community’s commitment to the

sovereignty and territorial integrity of the FRY promulgated in the Agreement.111

Needless to say that the imposed one-sided interim Agreement, signed by

Milošević’s government under enormous pressure, 112

had put Kosovo and the

Yugoslav President,” The New York Times (25 March 1999) A1; Interim Agreement for Peace and

Self-Government in Kosovo, Online: Kosovo Crisis Center, 23 February 1999 <http://www.alb-

net.com/kcc/interim.htm> (Accessed on: 17 September 2005) [hereinafter Rambouillet

Agreement]; J. Broder, “Clinton on Kosovo: A Human Factor,” The New York Times (25 February

1999) A10; J. Solana, “NATO’s Succcess in Kosovo,” (1999) 76:6 Foreign Affairs 116; M. Kelly,

“Post Conference Reflections: Traveling the Road to Rambouillet: Is the Imposition of Federalism

in Kosovo Pragmatic Foreign Policy or Unwise Meddling?” (1999) 40 South Texas Law Review

791 [hereinafter Kelly]; M. Mandelbaum, “A Perfect Failure,” (1999) 78:5 Foreign Affairs 10; R.

Moseley, “New Deadline for Kosovo: Airstrikes on Hold as Talks Linger,” The Chicago Tribun

(21 February 1999) 1; “Renewed NATO Threats,” The New York Times (12 February 1999) A10;

T. Friedman, “A Balkan Solution,” The New York Times (5 February 1999) A27; “Why Kosovo?”

The Washington Post (16 February 1999) A16.

110

Dauphinee, supra note 109, at 111; “UN Head: Define Autonomy for Kosovo” The

Washington Post (7 March 2000) A7; “Uncertainty Hampers Kosovo Mission,” The Washington

Post (5 March 2000) A13.

111

Dauphinee, supra note 109, at 110; Rambouillet Agreement, supra note 109, at Chapter 2,

Article II.

112

B. Allen, Why Kosovo?: Anatomy of a Needless War (Ottawa: Canadian Centre for Policy

Alternatives, 1999) 19 [hereinafter Allen]; H. Clark, Civil Resistance in Kosovo (London: Pluto

341

entire FRY under NATO’s indefinite occupation. Article 8 of Appendix B stated

that “NATO personnel shall enjoy, together with their vehicles, vessels, aircrafts,

and equipments, free and unrestricted passage and unimpeded access throughout

the FRY including associated airspace and territorial waters.” Furthermore,

Article 7 of the same appendix asserted that NATO personnel should be immune

from any form of arrest, investigation, or detention by the authorities in the FRY,

a provision that encouraged the culture of impunity among the NATO troops.

Consequently, a number of these troops were involved in various serious crimes,

including killing and rape.113

Press, 2000) 185 [hereinafter Clark]; J. Carter, “Have we Forgotten the Path to Peace?” The New

York Times (27 May 1999) A31; J. Perlez, “Talks on Kosovo near Breakdown: Deadline is

Today,” The New York Times (23 February 1999) A1; Judah, supra note 8, at 197; S. Erlanger,

“NATO may Act against Serbs in Two Weeks,” The New York Times (2 October 1998) A1; V.

Chernomyrdin, “Impossible to talk Peace with Bombs Falling,” The Washington Post (27 May

1999) A39.

113

Frank Ronghi, a US Staff-sergeant with the KFOR, admitted to the brutal rape and killing

of Merit Shabui, an 11-year-old ethnic Albanian girl on 13 January 2000, while he was on

peacekeeping duty in Kosovo. In another case, three KFOR British troops serving with the first

battalion of the Parachute regiment were investigated for the murder of two Albanian Kosovar

men and malicious injury of three others. Most recently, at the time of writing this chapter, the

U.S. federal prosecutors have charged Steven D. Green, Paul E. Cortez, James P. Barker, Jesse V.

Spielman, and Bryan L. Howard with the rape and murder of Abeer Qasim al-Janabi, a 15-year-

old Iraqi minor, together with her parents and a 5-year-old Iraqi sister, at al-Mahmoudiya town,

south of Baghdad. The American soldiers, who appeared in a federal magistrate’s courtroom in

Charlotte, North Carolina, are accused of having attempted to burn the victims’ home to the

ground and blame insurgents for the carnage. See A. Badkhen, “Atrocities are a Fact of all Wars,

Even Ours: It’s not Just Evil Empires whose Soldiers Go Amok,” San Francisco Chronicle (13

August 2006) E1; Allen, supra note 112, at 18; American Forces Press Service, “NATO Chief

Says More Police Vital in Kosovo,” (8 February 2000) 2 [hereinafter Rape and Murder]; E.

Schmidt, “Zone by Zone: 11 Days to Serbs’ withdrawal and Occupation by NATO,” The New

York Times (10 June 1999) A18; H. Perritt, “Do U.S. Troops Belong in Kosovo?” The New York

Times (9 February 1999) A22; Hudson, supra note 9, at 128 & 135; J. Finer, “Troops Facing

Murder Probe: Atrocities against Iraqi Family alleged,” The Washington Post (1 July 2006) A01;

M. Sanchez, “War, Rape Tragically Linked,” Online: Centre Daily Times, 8 July 2006

<http://www.centredaily. com/mld/centredaily/news/opinion/14983314.htm> (Accessed on: 8 July

2006); N. Wood, “Kosovo’s Love Affair with NATO Keeps Tempers Down,” The Guardian (4

December 2000) 8; R. Lenz, “U.S. Soldier Describes Stress in Iraq: Testimony in Rape-Murder

Case,” The Gazette (9 August 2006) A16; Rambouillet Agreement, supra note 109, at Appendix

B, Articles 7 & 8; “Rising Outrage over Rape, Murder of Iraqi Woman and her Family,” The

Associated Press, Baghdad, Iraq, 5 July 2006; “Soldier Gets Life in Rape of Iraqi Girl and Killings

of Family,” The Associated Press, Fort Campbell, Kentucky, 16 November 2006; T. Whitmire,

“101st Vet. Charged with Murder, and Rape of Iraqi: Former Member of 502

nd being Held in North

342

Moreover, the Agreement promoted public communal education on ethnic

issues, including national culture and political history, and supported the

establishment of national and regional institutions for this purpose. This provision

favoured a culture of separation at the expense of ethnic pluralism, ethnic

conciliation, and social integration.114

Concluding Remarks

The foregoing analysis has emphasized that the international community

failed utterly in the post-Cold War era to observe its duties in preserving

international peace and security, placing the principles of international

humanitarian and human rights law—embedded in international and regional

conventions and treaties—in question. This failure reminds one of General

Dallaire’s critical question: “Are we all human, or are some more human than

others?” If we remember that the Dutch and French peacekeepers allowed the fall

of Srebrenica and the massacre of more than 8,000 Bosnian Muslim civilians by

Serb forces to save the lives of a handful of their colleagues captured by Serb

paramilitaries; and that the lives of the 800,000 Rwandans slaughtered in that

nation’s genocide were only worth risking the lives of ten American troops, as

declared by an American officer, or not even one more Belgian soldier beyond the

ten Belgian troops massacred by Hutu extremists at the beginning of the genocide,

as Belgian officials maintained, then we in the West certainly have no difficulty

Carolina,” The Associated Press, Charlotte, North Carolina, 3 July 2006; “UN Aide in Kosovo

Convicted of Sex Abuse of Minor,” Reuters, New York, 2 November 2005; US Army Sgt. Frank

Ronghi while on KFOR Duty in Kosovo/a Rapes and Kills an 11-Year-Old Albanian Girl, Online:

Autonomous Women’s Center against Sexual Violence <http://www.womeninblack.net/ stats

/kforrape.html> (Accessed on: 16 December 2005) [hereinafter Rape and Killing]; “US Soldier

Faces Sentencing for Kosovo Murder,” Reuters, Wuerzburg, Germany, 31 July 2000; US Soldier

Facing Life Sentence for Kosovo Rape-Murder of Girl,” Agence France Presse, 31 July 2000;

“U.S. Soldier in Iraqi Gang Rape Case Pleads Guilty,” Reuters, Ft. Campbell, Kentucky, 16

November 2006; War of Words, supra note 72, at 246.

114 Allen, supra note 112, at 17; Rambouillet Agreement, supra note 109, at Chapter 1, Article

4 (a)(iii) & Article 5; War of words, supra note 72, at 112.

343

to believe with General Dallaire that our lives are worth more than the lives of

other people in this world. 115

It seems evident from the foregoing that the lawfulness of any military

intervention depends on the authorization of the UN Security Council, which is,

regrettably, subject to the individual or collective interests of its permanent

members. To avoid any crisis in the future, the international community should

learn from its mistakes by reforming the UN system, and making the legality of

any humanitarian intervention subject to a modified UN Charter and other relative

international instruments, while the decision to act, as in the former Yugoslavia,

or not to act, as in Rwanda, must be determined by a binding UN General

Assembly resolution.

115 D. Kroslak, The Role of France in the Rwandan Genocide (London: Hurst & Co., 2007)

286 [hereinafter Kroslak]; L., Barros-Duchene, Srebrenica: histoire d’un crime international,

Paris, Édition L’Harmattan, 1996, à la p.41; M. Moodie, “The Balkan Tragedy,” (1995) 541

Annals of the American Academy of Political & Social Science 113 [hereinafter Moodie]; R.

Dallaire & B. Beardsley, Shake Hands with the Devil: The Failure of Humanity in Rwanda

(Toronto, Ont.: Random House Canada, 2003) 522 [hereinafter Dallaire]; S. Burg, War or Peace?:

Nationalism, Democracy, and American Foreign Policy in Post-Communist Europe (New York,

N.Y.: New York University Press, 1996) 119 [hereinafter Burg].