Leitner Interns Blog: ICTY and It's Power to Arrest

The dramatic arrests this summer of both General Ratko Mladić and Goran Hadžić have brought the International Criminal Tribunal for the Former Yugoslavia (ICTY) back into the international spotlight. After 18 years the ICTY has now arrested all 161 of its indictees. The arrest power of the ICTY raises interesting jurisdictional and pragmatic questions. In order to understand what powers the ICTY actually has to arrest, and how this impacted its ability to effectuate its warrants, this blog details an overview of this fascinating legal area, focusing particularly on its initial arrests, and then the “high-level” arrests it has made in the last decade.

In 1993 the United Nations Security Council passed Resolution 827 which formally established the ICTY “for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia.” While the ICTY does not have a formal arrest apparatus, Article 29 of the ICTY Statute provides that UN member states “comply without undue delay with any request for assistance or an order issued by a Trial Chamber.” Consequently, the ICTY has been able to utilize a variety of methods to arrest indictees. In the early years the multinational force under the auspices of NATO had the power to arrest. On July 10, 1997 NATO made its first arrest attempt. Operation Tango, as it was codenamed, brought soldiers to Prijedor, a small town in the north west of Bosnia and Herzegovina. Here they spent four weeks staking out Simo Drljača, a former Serbian police chief thought to have been instrumental in organizing ethnic cleansing in Muslim towns. The mission went awry when the arrest by Special Air Service operatives from the United Kingdom turned into a shootout with Drljača; who ultimately was shot dead. In another Operation Tango mission, executed simultaneously to the Drljača mission, NATO forces disguised as Red Cross officials successfully arrested the President of the Municipal Assembly of Prijedor, Milan Kovačević.

In the same year the ICTY examined the legality of its arrest power. In the Prosecutor v. Slavko Dokmanović the Accused challenged his arrest, claiming he was subject to irregular rendition. Dokmanović was arrested while a livery service that he thought was taking him to a meeting actually was undercover officers. The Trial Chamber ruled that Dokmanović had not been forcibly abducted, but rather just “lured” into the car, and that this was within ICTY powers.

In Prosecutor v. Dragan Nikolić, the Accused was arrested via an abduction by unknown persons who subsequently turned him over to the ICTY. Nikolić argued that his abductors had violated the sovereignty of the former Yugoslavia and this was a grave breach of his own rights as a citizen of the country. The ICTY Appeals Chambers held, however, that arresting and trying an international criminal took precedent over the competing interest of state sovereignty.

The first high-level arrest was realized in autumn of 2000. The fall of former Yugoslavian President Slobodan Milošević transformed the political landscape dramatically and changed the dynamic of the ICTY’s arrest apparatus. Tragically, Prime Minister Zoran Đinđić’s dedication to international justice, rather than Serbian nationalists, would ultimately cost him his life. Until Đinđić’s assassination in 2003, his government, fueled by international pressure, became the main driver for ICTY arrests. President Milošević was arrested by the local police in a 36 hour standoff at his villa home in Belgrade and eventually turned over to the ICTY to face international criminal charges.

Eight years later, on July 21, 2008, Radovan Karadžić, the former President of Republika Srpska, was arrested. Donned with a shaggy beard and long grey hair, he had been living under the assumed identity as an alternative medicinal healer. Karadžić’s arrest was reputed to have resulted from a tip from locals in Belgrade who learned of his identity. While there may have been less political will in Serbia to arrest ICTY indictees after Đinđić’s assassination, the European Union leveraged Serbia’s membership to the sought-after club by making it contingent on Serbia effectuating the remaining arrests warrants.

After Karadžić’s arrest, this left two indictees at large, Ratko Mladić and Goran Hadžić. Over the last decade, Mladić, according to the New York Times "received vital…assistance from Serbian military forces and several of the country's past governments." He was apparently seen at football matches and weddings throughout these years. But, on May 26^th, three special units after surveilling his residence in the village of Lazarevo for two weeks, surrounded it and made the historic arrest. He was immediately brought before a Serbian court, and in a matter of days extradited to The Hague to face his international indictment at the ICTY.

Approximately two months later, in bizarre twist of events, Hadžić’s arrest finalised the ICTY indictments. Apparently the Serbian authorities were tipped off to Hadžić’s whereabouts when he tried to sell an Amadeo Modigliani painting in order to continue financing his fugitive lifestyle. He had been living under a pseudonym in Russia, and was hidden by a sympathetic Serbian nationalist priest; however, a special under-cover police force surrounded him deep in a forest were he had arranged to meet a friend. He too was arrested and brought to The Hague to stand trial.

It appears that the success of the ICTY’s arrest power was predicated on a mixture of international co-operation, changing political tides in Serbian politics, international pressure, and a little luck. It will be interesting to see how other international criminal bodies reflect on the legacy left by the ICTY.

Sources

1. European Journal of International Law

http://ejil.oxfordjournals.org/content/9/1/174.short

2. BBC News “Milosevic Arrested”

http://news.bbc.co.uk/2/hi/europe/1254263.stm

3. The Atlanitc “Why Serbia Captured Mladic and Pakistan Harbored Bin Laden

http://www.theatlantic.com/international/archive/2011/05/why-serbia-captured-mladic-and-pakistan-harbored-bin-laden/239522/

4. Goran Hadzic Arrest: A Turning Point for Serbia

http://www.bbc.co.uk/news/world-14238332

5. Charter of the United Nations

http://www.un.org/en/documents/charter/chapter7.shtml

6. The Hunt for the former Yugoslavia’s War Criminals: Mission Accomplished