The ICTY, war crimes enforcement and Dayton: The ghost in the machine

Abstract

Commitment to detaining war crimes suspects, particularly through military operations, was the key factor in Bosnia's post-Dayton development. The decision in the mid-1990s to take arrests forward was the single most important element of the international strategy of peace implementation, with detentions in 1997 prefiguring and signposting the way for firm civilian implementation of the Bosnian peace by the High Representative, using authority strongly confirmed by the Peace Implementation Council's Sintra and Bonn meetings. Detention operations changed the strategic dynamic. While Bosnian progress remained slow, the war crimes action helped to create space for political cooperation and development, as well as for the kind of political coercion by the High Representative that would emerge half a year after the first detention operation. Without such action, international strategic momentum and credibility would not have been established, and Bosnia's peace agreement stasis would probably have remained. The war crimes issue was therefore the ‘ghost in the machine’ driving the positive evolution of post-war Bosnia and Herzegovina under the Dayton peace accords.

The present article, in part, draws on research on ‘War and War Crimes’ funded by the Arts and Humanities Research Council. In this context, I am grateful for the help and support of my colleagues at KCL, Rachel Kerr, Ivan Zverzhanovski and Ann Lane, as well as to all the other members of the War Crimes Research Group, which has supported this work.

Notes

1. The form Bosnia and Herzegovina is used throughout the article to conform with the journal's house style. However, it is noted that the correct formulation for the country, as per official English language versions of its constitution and official business, is ‘Bosnia and Hercegovina’ with a ‘c’. Meanwhile, one of the two entities which comprise the country is formally expressed in the constitution as the Federation of Bosnia-Herzegovina—where a hyphen replaces the conjunction, and a ‘z’ replaces the ‘c’.

2. Some of these criticisms are noted later in the article.

3. The General framework agreement for Peace in Bosnia and Herzegovina, Wright Patterson Air Base, Dayton, OH, 21 November 1995 (hereafter “Framework’).

4. The present interpretation of the Bosnian constitution draws on Gow (1997, ch. 10).

5. Both Zagreb and Belgrade have altered their approaches to proxies and communities in Bosnia over the years. From 2000 onwards Zagreb had a programme of disengagement with the Bosnian Croat military, which would occur gradually over a few years, under cover of cooperation. Confidential interview with a member of the Croatian president's cabinet, March 2001. Belgrade was slower to disengage—and by 2005 still had integrated links with the Bosnian Serbs, although there had been significant changes in policy and approach, as well as some moves towards disengagement. Confidential interviews with Western officials in Belgrade, and senior officials of the Belgrade government, April 2004.

6. The term Bosniac was used to refer to the Slav Muslim population in Bosnia.

7. The assumption was inherent in this mechanism that the representatives in the House of Peoples would be the best placed to define the vital interests of the Muslims, Serbs and Croats in Bosnia.

8. One of Wolfgang Petritsch's actions as High Representative was to use his authority to confirm that of the Constitutional Court, as the latter sort to override provisions in the entity constitutions which prevented participation in elections on grounds of ethnicity. See Friedman (2004, p. 73).

9. The infamous ‘P2’ formula that accompanied this arrangement left open the possibility of abuse—which was widely taken in the initial elections—for persons to register to vote where they intended to live, conditions permitting. In practice large numbers of voters, especially in the Republika Srpska, were registered as wishing to live, and so vote, in places with which they had no connection. The reality was that party activists had ‘managed’ this process, so as to increase the number of putative residents and so actual voters in disputed, desired municipalities.

10. On the different characteristics and performance of each of the High Representatives, see Friedman (2004, pp. 69–72).

11. For a valuable preliminary study of the aspects of peace building in the Bosnian context, see Bojicic et al. (1995).

12. Bose (2002, pp. 253–236) offers samples of different perspectives on these issues. See also Chandler (2000).

13. See Holbrooke (1998), as well as Silber and Little (1996), and Gow (1997, ch. 10), on which the present section draws.

14. ‘Bosnia: a turning point?’, BBC News, 10 December 1997, at: http://news.bbc.co.uk/1/hi/world/analysis/38390.stm, accessed 27 May 2005.

15. While the December 1997 PIC formally catalysed the process and Sintra had already confirmed it, that authority already existed within the Bosnian constitutional framework. However, the significant issue is that, after this decision, the powers came to be used more extensively and effectively.

16. For the best treatment of the establishment, role and functioning of the Tribunal, see Kerr (2004).

17. The initial signs, however, were that the IPTF would struggle to gain its full complement or receive sufficient backing to act with authority.

18. It is ironic—and a dubious distinction—that the author was possibly one of the very few people to be directly detained by the IPTF, when taking photographs in north-western Bosnia, while those implicated in war crimes and organized criminal activity were left untroubled by it.

19. The elections were successful, despite inevitable doubts about their propriety and outcome. Many observers at the time saw the flaws as seriously undermining democracy and as an indication that elections should not have been held so soon, not registering that even imperfect elections were necessary strategically to validate the process. See Singer (2000) and Cousens and Cater (2001).

20. It might be noted that the delineation of an unrealistic aim as the theme for a year was a hostage to fortune, likely to result in negative definition of the mission's success.

21. By mid-2002, of 28 operations conducted (including those which did not succeed), the UK had led 15.

22. One Bosnian Serb attempted to surrender to Dutch troops, who reported that he was not actually on the detention lists the latter had. Before any of the Dutch soldiers had found the wit to offer the person, who clearly had a sense of his own guilt, a cup of coffee while someone checked with The Hague, the individual had made off, no doubt breathing a great sigh of relief, disappearing before a full picture and a possible warrant emerged. Confidential interview with British official involved in the planning, preparation and conduct of detention operations, November 1997.

23. At trial, Plavsic demonstrated contrition when she admitted that “many thousands of innocent people were victims of an organized effort to remove Bosnian Muslims and Bosnian Croats from territory claimed by Serbs”, adding that at the time she had convinced herself that it was a matter of survival and self-defence, but that such an “explanation…offers no justification”. Bosnian Serb leader ‘blinded by fear’, BBC News, 17 December 2002, at: http://news.bbc.co.uk/l/hi/world/europe/2582851.stm, accessed 27 May 2005.

24. Friedman (2004, p. 73f.) discusses the tensions between outright hardliners, the more cooperative figures, such as Plavsic, and the High Representative's role, reflected in this paragraph.

25. The above is based on confidential interviews with two British officials closely involved in the planning, preparation and conduct of the operations themselves, July 1997 (both) and December 2004 (one).

26. While highlighting the potential for mistakes, it should be noted that the right pair of twins found their way to The Hague. The Banovic twins were apprehended in Serbia by Serbian Special Forces, who were effectively duped by the government into carrying out the operation, on the grounds that the pair were illegal immigrants. The so-called ‘Red Berets’ proceeded to block a Belgrade highway in protest once the Banovics had been transferred to The Hague and the special forces had realized what had happened (Sunter, 2001). Nenad Banovic was released on 10 April 2002, after the Prosecutor filed a motion to withdraw the indictment against him. His twin was sentenced to eight years imprisonment on his 34th birthday, 28 October 2003.