The Implications of the Peace Agreement for the International Criminal Tribunal for the former Yugoslavia

John R.W.D. Jones *

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The Peace Agreement signed in Paris on 14 December 1995¹ and the International Criminal Tribunal for the former Yugoslavia ("the Tribunal"), share a common purpose: the restoration of peace in the former Yugoslavia.² The former aims to be a `comprehensive settlement'<sup>3</sup> to the conflict in the region, addressing such diverse issues as demilitarization, elections, constitutional arrangements and human rights, and the latter is incorporated in its provisions as one aspect of that settlement. The Tribunal does not, however, loom large in the Peace Agreement. It is not, for example, explicitly mentioned in the "General Framework Agreement for Peace in Bosnia and Herzegovina" - the basic text of the Agreement - but only in the Annexes attached thereto. Several articles in the Annexes do refer specifically to the Tribunal, reaffirming the Parties' duty to co-operate with it and to comply with its orders. This is significant, not least because it is the first occasion since the London Agreement<sup>4</sup> which established the International Military Tribunal at Nuremberg that a treaty has endorsed an international tribunal to try crimes against humanity and war crimes.<sup>5</sup> Nevertheless the Peace Agreement's marginalisation of the Tribunal is in stark contrast to the pivotal rôle assigned to it by the Security Council, which has noted that `compliance with the requests and orders of the International Tribunal for the former Yugoslavia constitutes an essential aspect of implementing the Peace Agreement.'⁶ There is therefore a discrepancy between the Agreement's text and its implementation regarding the prominence to be granted to the Tribunal.

The Agreement's text, for the most part, simply affirms and elaborates the Parties' duty to co-operate with the Tribunal and to comply with its orders; a duty under which Security Council resolution 827(1993)⁷ and Article 29 of the Tribunal's Statute already placed both States and de facto governments.⁸ The Agreement stops short of requiring co-operation from the international implementing force ("IFOR"). While the IFOR may have the authority, as discussed below, to arrest suspects and deliver them to The Hague, it is a moot point whether it will in fact do so.

In contrast to these equivocal provisions, a powerful mechanism for enforcement has been established by Security Council resolution 1022(1995), which permits the Council to reimpose sanctions, suspended by that resolution, against the Federal Republic of Yugoslavia (Serbia and Montenegro) ("FRY") and the Bosnian Serb authorities, (referred to in the Peace Agreement as the Republika Srpska ("RS")), if seized of significant non-compliance by them with the Agreement. The threat of sanctions may prove a powerful weapon for obtaining co-operation with the Tribunal from FRY and RS. Whether it will do so depends on how the High Representative and the IFOR Commander, as the final authorities in theatre regarding implementation of the civilian and military aspects of the Agreement,⁹ interpret the importance assigned by the Agreement to such co-operation, as well as on the extent to which the Security Council can influence their interpretation.

I. The Security Council context: Threat to International Peace and Security

In order fully to understand the relationship between the Peace Agreement and the Tribunal, the former must be placed in the context of the relevant Security Council resolutions on the former Yugoslavia. Under the United Nations Charter, the Security Council has `primary responsibility for the maintenance of international peace and security',¹⁰ and the Charter itself prevails over Member States' obligations under any other international agreement.¹¹ The Council was seized of the situation in the former Yugoslavia before the signing of the Peace Agreement, having determined in a number of resolutions that the situation constituted a threat to international peace and security, and thus it has primary responsibility for the situation in the region. In recognition of this primacy, the Agreement "invites" the Council to authorize the implementation of the Agreement acting under Chapter VII of the United Nations Charter ("Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression").¹² Since the Peace Agreement assumes a continuing threat to international peace and security, as determined by the Security Council, the reasons for the Tribunal's establishment remain in effect, at least for the time being.¹³

Since the signing of the Peace Agreement, moreover, the Security Council has been careful to retain jurisdiction over its implementation. In authorizing the Agreement it has determined `that the situation in the region continues to constitute a threat to international peace and security',<sup>14</sup> and has expressed `its intention to keep the implementation of the Peace Agreement under review'.¹⁵ In resolution 1022 (1995), the Council decided that if either the High Representative or the Commander of the IFOR report that FRY or the Bosnian Serb authorities, i.e. RS, `are failing significantly to meet their obligations under the Peace Agreement', it will automatically reimpose sanctions against them. The question is: what would constitute significant failure to co-operate with the Tribunal under the Peace Agreement?

* Member of the Bar of England and Wales.

^** The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.

1 General Framework Agreement for Peace in Bosnia and Herzegovina and the Annexes thereto (referred to collectively hereinafter as "the Peace Agreement" or "the Agreement").

2 The Tribunal was established by the Security Council under Chapter VII of the United Nations Charter as an enforcement measure aimed at restoring and maintaining international peace and security in the region (S/RES/827 (1993)). Prior to the Tribunal's creation, the Council had already determined that the situation posed by continuing reports of widespread violations of international humanitarian law occurring in the former Yugoslavia constituted a threat to international peace and security (see paragraphs 10 and 25 of the Report of the Secretary-General (S/25704)). In resolution 808 (1993), the Council stated that it was convinced that in the particular circumstances of the former Yugoslavia, the establishment of an international tribunal would contribute to the restoration and maintenance of peace.

3 Preamble to the Peace Agreement.

4 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Signed at London, 8 August 1945.

5 The Tribunal was established not by treaty but by Security Council resolution 827 (1993), although it has a treaty basis in the United Nations Charter, having been established under Chapter VII of the Charter. The Convention on the Prevention and Punishment of the Crime of Genocide (1948) mentions the prospect of an `international penal tribunal' (Article 6), but no such tribunal had been established at the time of its adoption.

6 Resolution 1022 (1995) (emphasis added). In the debates on this resolution, a number of representatives emphasized the importance of co-operation with the Tribunal. See, for example, the statements of the representative of the United Kingdom, `It remains more important than ever, now that peace is truly in prospect for Bosnia, that all sides cooperate fully with the Tribunal, for, if reconciliation is one of the vital ingredients in the process of re-building a war-torn society, then that process must also include a place for justice. No Government ... should suppose that it is at liberty to obstruct the Tribunal's work'. See also the statements of the representatives of Germany,Czech Republic, the United States, Italy, Bosnia and Herzegovina, Islamic Republic of Iran, Morocco, Spain, speaking on behalf of the European Union, Norway, and Korea (Verbatim Records on resolution 1022, S/PV.3595).

7 See resolution 827 (1993), ` ... all States shall co-operate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal ...'.

8 Under the Rules of Procedure and Evidence (DOC. IT/32/REV.7), the term, "State" is defined as `a State Member or non-Member of the United Nations or a self-proclaimed entity de facto exercising governmental functions, whether recognised as a State or not' (Rule 2), which thus includes the self-proclaimed Serb Republic based in Pale, the former Serb Krajina Republic and the Croatian Community of Herceg-Bosna. The Rules applicable to States were applied to the authorities in Pale in the Nikolic case (IT-94-2-R61). In that case, the Tribunal made a report to the Security Council (S/1995/910) that the failure to serve the arrest warrant on the accused was due to the refusal of the Bosnian Serb authorities in Pale to co-operate with the Tribunal. In response, the Security Council adopted a resolution expressing deep concerns at the Bosnian Serbs' non-compliance (S/RES/1019 (1995)).

9 Article V of Annex 10 and Article XII of Annex 1-A, respectively.

10 Article 24(1) of the United Nations Charter.

11 Article 103 of the United Nations Charter.

12 See Article VI(1) of Annex 1-A, ` ... the United Nations Security Council is invited to authorize Member States or regional organizations and arrangements to establish the IFOR acting under Chapter VII of the United Nations Charter.'

13 See paragraph 28 of the Report of the Secretary-General (S/25704): `As an enforcement measure under Chapter VII ... the life span of the international tribunal would be linked to the restoration and maintenance of international peace and security in the territory of the former Yugoslavia, and Security Council decisions related thereto'.

14 Resolution 1021 (1995) and resolution 1022 (1995).

15 Resolution 1031 (1995).

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