Chapter 13: The International Criminal Tribunals for Yugoslavia and Rwanda 345
There has also been much speculation over the existence of a secret bargain
between the leaders of the warring factions and the third party instigators of the
Dayton Agreement to the effect that the former would be excluded from the ambit
of the ICTY. It is alleged that this was the price for achieving peace and ending the
war.
38
Even if this allegation contains some truth vis-à-vis the drafters and sponsors
of the Dayton Agreement, it certainly carries no weight as far as the Office of the
Prosecutor is concerned. In fact, not only has the prosecutor carried out a meticulous
investigation against former Bosnian Serb leaders Karadzic and Mladic, which
culminated in a detailed indictment, an r 61 review and an international arrest
warrant; the Office of the Prosecutor has gone as far as charging an acting Head of
State, President Slobodan Milosevic of the Federal Republic of Yugoslavia (FRY) for
a number of offences allegedly ordered or tolerated by him during the civil unrest in
Kosovo in 1999.
39
At the same time that the indictment against Milosevic was
confirmed by a Trial Chamber, the prosecutor requested the freezing of all assets of
the accused, whereby a subsequent order to all UN Members was duly issued by the
Tribunal.
40
The accused was later transferred to the jurisdiction of the ICTY and the
indictment was amended to encompass crimes committed during the civil war in
Bosnia and Croatia. As for the Prosecutorial discretionary practice of ‘plea
bargaining’, which is common to many legal systems, it generally should not be
applied to the ad hoc tribunals where immunity is specifically prohibited. However,
neither of the two Statutes nor the Rules of Procedure deny the authority to engage
in plea bargaining, which as an implied power may be ‘necessary for completing
the investigation and the preparation and conduct of the prosecution’.
41
In order to
balance, on the one hand the interests of justice by avoiding impunity, and the
enhancement of its resources on the other, the Office of the Prosecutor has restricted
its plea negotiations to lower level officials.
42
The Rwanda Tribunal, as already explained, was not seriously plagued by
problems relating to the absence of accused or lack of State co-operation, since most
of the accused were already in Rwanda and, in any event, with the exception of the
Republics of Congo and Burundi, no other States have any national or other
substantial interest in shielding persons in their territory or withholding evidentiary
material. Nonetheless, lack of support by the Rwandan Government as well as the
Organisation for African Unity (OAU),
43
serious delays in prosecution and poor trial
management, coupled with financial and administrative mismanagement, resulted
in the resignation of the first ICTR deputy Prosecutor Honore Rakotomanana and
plunged the already beleaguered Tribunal into chaos and uncertainty. The ICTR,
38
A D’Amato, ‘Peace vs Accountability in Bosnia’, 88
AJIL
(1994), 500.
39
See ‘President Milosevic and Four Other Senior FRY Officials Indicted for Murder, Persecution and
Deportation in Kosovo’, ICTY Doc JL/PIU/403-E (27 May 1999).
40
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