Former Yugoslavia: War Crimes Tribunal's Workload Exceeds Capacity
Released: 1998-06-02T00:00:00

Letter

Background

The series of wars that occurred in connection with the breakup of the former Yugoslavia (see fig. 1) devastated many areas within the region and was marked by extreme violations of international humanitarian law, including forced population movements; forcible surrenders of property; military targeting of civilian populations; and systematic rapes, tortures, and mass murders. Civilians often were the primary targets of military actions, or used as human shields, resulting in thousands of deaths. Many were driven from their homes in campaigns of terror known as “ethnic cleansing.”

On May 25, 1993, the Security Council unanimously adopted resolution 827, which established the Tribunal under chapter VII of the U.N. charter (see app. II for a list of Security Council resolutions concerning the establishment of the Tribunal). This resolution set forth the Tribunal’s mandate to prosecute individuals responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since January 1, 1991. Fighting in Croatia had ended in November 1995 after the Croatian government and local Serb authorities signed an agreement on the region of Eastern Slavonia. In Bosnia hostilities were put on hold with a cease-fire among the three warring factions in October 1995. In December 1995 parties to the Bosnia conflict, including Croatia and Serbia, signed the Dayton Agreement. New incidents of violence occurred in early 1998 in Kosovo, a southern region of Serbia, that may place further demands on the Tribunal. Many international officials and observers believe that the success of the Tribunal is critically important to the overall international effort to bring peace and stability to the region.

The Tribunal for the former Yugoslavia was the first criminal tribunal established as a subsidiary U.N. organization and had to rely on the international community to help it investigate and prosecute accused war criminals. The Tribunal lacks the capability to capture those it has indicted as possible war criminals and must rely on others to execute its orders and warrants, including their arrest and delivery to The Hague, the Netherlands. To carry out its mandate, the Tribunal also had to develop an operating structure and create a legal and judicial process that could be viewed by the international community as fair and credible.

The Tribunal’s statute established three bodies: the judicial chambers, an Office of the Prosecutor, and a Registry for common administrative support. The statute also directed these bodies to conduct investigations, issue indictments and arrest warrants, prosecute and arrange for the defense of the accused before a three-judge panel, sentence convicted persons, and hear appeals. To carry out these tasks, the Tribunal needed judges, a prosecutor, investigators, lawyers, and administrative support plus a building to work in, facilities to detain suspects, and a courtroom for proceedings before investigations could begin and individuals be arrested and prosecuted. (See app. III for more information on the Tribunal’s jurisdiction, organization, and process.)

To ensure its decisions are viewed as credible and withstand international scrutiny, the Tribunal’s rules of procedure and evidence require that the Prosecutor present enough evidence to prove guilt beyond a reasonable doubt to obtain a conviction. This may require investigators to collect thousands of pages of information, analyze the military and civilian command structures of the various factions to establish command responsibility, obtain physical evidence from mass graves, and locate and interview potential eyewitnesses who are scattered throughout Europe and the rest of the world. Under its statute and rules of procedure and evidence, the Tribunal must protect the rights of the accused, including the right to counsel and to be informed of any information known to the Prosecutor that may suggest their innocence or mitigate their guilt. The Tribunal also must try the accused “without undue delay.” The maximum penalty that the Tribunal can impose is life imprisonment.

Tribunal Overcame Startup Challenges

The Tribunal started its mission with few resources and staff. The U.N. General Assembly elected the 11 judges in 4 months, but more than a year was required to develop judicial rules and procedures, select a Prosecutor, acquire facilities, hire investigators, obtain a formal funding mechanism, and secure other critical resources and staff needed to conduct its work. The Tribunal encountered numerous startup problems and, as reported by the United Nations’ Office of Internal Oversight Services (OIOS), inefficiently used some of its resources. For example, in 1996 OIOS reported that up to 15 guards were hired more than 6 months before the first detainee arrived and before the construction of the detention facility was completed. Also, in March 1997, OIOS reported that the Tribunal could achieve greater efficiencies by looking into outsourcing, cost sharing, and pooling administrative functions. Nonetheless, the Tribunal has grown into a fully functioning organization. From 1993 to 1998, the Tribunal has grown from an organization with 11 judges and an approved budget of $500,000 to an approved staff level of 571 with a budget of almost $70 million.

Tribunal Efforts to Become Fully Functional

The Tribunal needed rules of procedure and evidence, a Prosecutor, judges, investigators, lawyers, administrative support, and facilities to become a functioning international judicial body. It took 18 months after the Security Council first authorized the creation of the Tribunal before all the main elements necessary to carry out its mandate were in place (see table 1).

The Tribunal initially used offices provided by the International Court of Justice in The Hague to conduct its work. In mid-1994, the Netherlands, the host government for the Tribunal’s activities, provided the Tribunal’s premises and a courtroom and arranged the construction of a detention facility to house those in custody. The Netherlands continues to provide security for the Tribunal’s facilities, judges, senior officials, accused in custody, and witnesses.

The Tribunal also received other in-kind contributions, including equipment such as computers, vehicles, video-delay equipment, and personnel loaned by member states and nongovernmental organizations.In 1994, the United States loaned 22 personnel to the Office of the Prosecutor—about 20 percent of the Tribunal’s staff at the time—to help the Tribunal get started. The number of loaned staff from member states has remained relatively constant at around 50 since 1995.

During the Tribunal’s first 2 years, it did not have a formal U.N. budget but instead operated with funds advanced by the Secretary General from the U.N. regular general budget with only a 6-month commitment authority. Under this condition, the Tribunal could not enter into any long-term commitments extending beyond its temporary budget authority. This also meant that since the Tribunal had no permanent funding, a formal lease for premises could not concluded until 1994, and the Tribunal could not recruit experienced staff and personnel other than on short-term contracts. Further, it could not purchase and install the technical equipment necessary to start investigations.

After a lengthy debate, in July 1995 U.N. member states reached a compromise agreement to create a special account to finance the Tribunal. The compromise called for half of the Tribunal’s budget to be funded using the U.N. regular assessment scale and half using the peacekeeping assessment scale. Figure 2 shows the amount and source of funds for the Tribunal’s budget.

Voluntary Contributions Fill Critical Resource Needs

In addition to in-kind contributions, loaned personnel, and regular budget assessments, in September 1993 the General Assembly asked member states and other interested parties to make voluntary cash contributions to the Tribunal’s trust fund. As shown in table 2, since the Tribunal was established and through March 1998, the cumulative voluntary cash contributions and pledges have been about $14 million from 28 countries and organizations.

According to State and Tribunal officials, the Tribunal has used voluntary contributions to finance critical resource needs. For example, in January 1998, the Netherlands contributed $1.7 million in in-kind contributions and the United States $1 million in in-kind contributions to construct a second, fully equipped courtroom for the Tribunal. Previously, the United Kingdom had contributed about $500,000 for the construction of another courtroom. The United States also contributed $1.1 million in March 1998 to support the Tribunal’s investigation of the Serbian attack on ethnic Albanians in Kosovo and other investigative priorities.

Tribunal’s Current and Future Workloads Exceed Capacity

Our analysis of the Tribunal’s plans and available resources indicates that it does not have the capacity to handle its current workload, and the problem is likely to get worse. The Tribunal will be unable to conduct the number of investigations it planned for 1998, may be unable to begin trials without undue delay, and will continue to have a growing backlog of unread documentary evidence. Moreover, as more indictees are arrested during the year, the Tribunal’s ability to continue ongoing investigations and ensure indictees are brought to trial without undue delay will be further eroded. There are major obstacles to quickly expanding the Tribunal’s capabilities, including the U.N. system’s complex recruitment process and a surcharge assessed to donors who make voluntary contributions.

Although the Tribunal has no specific guidelines for determining the exact length of time after which detention is no longer lawful, the Tribunal statute requires the Tribunal to try the accused without undue delay. According to the Tribunal President and State Department officials, pretrial detention longer than 2 years could be considered undue delay, although this may vary depending on the circumstances of each case. The ability to start trials soon after indictees are brought into custody can have important political implications. For example, one of the important conditions of the U.S.-negotiated surrender of 10 Bosnian Croats in October 1997 was the U.S. commitment to support the Prosecutor’s pledge to be ready to try some of the 10 accused within 3 to 5 months of their surrender (as of May 1998, trials for the 10 who surrendered had not begun). According to State Department officials, indictees are less likely to surrender if they face the prospect of months or years in custody before their trials begin.

Current Workload Exceeds Capacity

Our analysis shows that, based on its current workload and capacity, the Tribunal will be unable to undertake the number of investigations it planned for 1998 and will take at least 3 years to complete the trials and appeals of the accused currently in custody. The Tribunal has the capacity to handle the workload that existed in the fall of 1997 when it submitted its resource request for the year. As of May 14, 1998, however, 10 more indictees had been arrested or surrendered and investigations in Kosovo had been added—already exceeding the workload the Tribunal had expected for the entire year (see table 3). Moreover, only three-quarters of the new hires planned for 1998 will be in place by August 1998. As a result, the Tribunal currently does not have sufficient capacity in a number of key areas to handle its present workload.

Although no standards exist on the appropriate number of investigators for an international criminal tribunal, the Tribunal does not have sufficient investigators to carry out its existing investigatory workload. At the time of our visit in November 1997, the Tribunal had 41 investigators, including loaned personnel, to investigate potentially thousands of serious violations of international humanitarian law, including nearly 1,000 prison camps and other places of detention, over 10,000 cases of rape and sexual assault, and 187 mass grave sites identified by the U.N. Commission of Experts.

The Deputy Prosecutor told us that the 1998 budget would provide the Office of the Prosecutor sufficient investigators and other resources to adequately carry out its mandate for the first time, based on its planned 1998 workload. The 1998 budget authorized 72 investigators to conduct 12 fully active investigations and support 9 ongoing or pending trials. To meet these goals, the Office of the Prosecutor expected to supplement its 72 U.N.-hired investigators with up to 30 loaned staff from member states.

However, since the budget was approved, investigators have had to support 12 ongoing or pending trials. Further, they have had to suspend six investigations and have been unable to begin an unspecified number of additional investigations (see table 4). As of April 1998, the Tribunal had 39 U.N.-hired and 13 loaned investigators from member states. None of its 10 active investigations were being carried out by a full complement of investigators, although each investigation is fully active to the extent that resources permit. In addition, it will be several months before the new U.N. staff approved in the 1998 budget will be on board, and the Tribunal’s ability to use any loaned staff beyond June 1998—and thus accomplish the goals it set out in the 1998 budget—remains uncertain in light of the U.N. General Assembly’s September 1997 resolution to largely eliminate the use of loaned staff at the United Nations. The resolution stated that loaned staff should not be used as a substitute for U.N.-hired staff necessary for the implementation of mandated programs and activities. However, the U.N. Secretary General could accept loaned personnel for (1) very specialized functions for a short period of time or (2) in cases of urgent need or expanded mandate.

Several current Office of the Prosecutor staff, former Office of the Prosecutor staff now at the Justice and Defense Departments, and State Department officials told us the number of investigators in the 1998 budget was still far short of the total necessary to handle the scope of the Office of the Prosecutor’s work. They said that to adequately carry out its mandate, the Office of the Prosecutor would require at least twice as many investigators as requested in the 1998 budget. Several noted that a single Tribunal investigation was comparable in complexity and scope to a large criminal case in the United States, even though the entire investigative resources for the Tribunal were significantly smaller than what would be applied to such a case in the United States. One Office of the Prosecutor official told us he had only 6 people on his investigative team, when 35 were required to cover the scope of its work effectively. Other Office of the Prosecutor officials told us of alleged atrocities involving hundreds of deaths that could not be investigated due to lack of investigators. In its 1998 budget request, the Office of the Prosecutor reported that as of October 1997, almost 60 percent of its investigative resources were assigned to trial teams, causing the suspension of some ongoing investigations.

The Tribunal’s investigative capacity is strained by the need to prepare cases for trial when indictees are brought into custody. For an indictment to be confirmed, the Office of the Prosecutor need only satisfy a judge that there is a prima facie case for believing that a suspect has committed a crime. However, to obtain a conviction under the Tribunal’s rules of procedure and evidence, prosecutors need to prove guilt beyond reasonable doubt. Consequently, after an indictee is detained and brought to The Hague, investigators need to conduct additional work to prepare the case for trial. The amount of additional work required to prepare for trial depends, in part, upon the extent of the evidence collected before the indictment and the amount of time that has elapsed since the indictment. Investigators may need to locate original witnesses and ensure their testimony is consistent with their original statements and investigate potential defense theories.

In general, however, the Tribunal estimates that a seven-person prosecution team needs to be established for each pending trial, including at least two investigators who have to be pulled off ongoing investigations. Using this estimate, the Office of the Prosecutor will need 16 investigators, or 22 percent of its U.N.-hired investigators, to handle its current pending trial load, plus additional investigators to support ongoing trials. As more indictees are brought into custody, more investigators will be assigned to trial preparation, which will steadily degrade the Office of the Prosecutor’s ability to carry out ongoing investigations. According to Tribunal and State Department officials, the resources required for trial preparation can be much greater for higher profile indictees. For example, these officials told us that the Office of the Prosecutor moved over half of its investigative staff from investigations to trial preparation when a Bosnian Croat general surrendered to the Tribunal in April 1996.

The recent violent incidents and killings in Kosovo have also strained the Tribunal’s investigators and highlighted the Office of the Prosecutor’s limited ability to quickly respond to new situations that were not foreseen in the 1998 budget. According to a senior State Department official, the Office of the Prosecutor could not provide investigators to conduct work in Kosovo without seriously hampering ongoing investigations and trial preparations. As a result, the United States contributed over $1 million, loaned a prosecutor and an investigator to the Tribunal, and sought additional voluntary contributions and personnel from other nations.

Courtrooms

As of March 1998, the Tribunal had only one courtroom to conduct its current caseload—4 ongoing trials, 1 appeal, and various procedural and pretrial motions associated with 8 pending trials involving 18 defendants.To handle this caseload, the Tribunal has to rotate the use of the single courtroom between pretrial motions, ongoing trials, administrative functions of the court, and appeals. The need to handle the Tribunal’s entire caseload in one courtroom is inefficient and delays the entire judicial process. For example, ongoing trials are frequently delayed by the need to hear procedural or pretrial motions associated with other cases. Such motions took up over 25 percent of available court time during 1997. The need to rotate court time between ongoing trials, motions, and appeals greatly increases the amount of time necessary to complete each ongoing trial and requires those in custody for other cases to wait for months before their trials can even begin.

To address the need for additional courtrooms, the U.S., Dutch, British, and Canadian governments have voluntarily provided $3.3 million to finance the construction of two additional courtrooms—one fully equipped to handle trials with multiple defendants, the other capable of handling pretrial motions and appeals or trials with up to two defendants.The Tribunal expects to have all three courtrooms in use by the end of June 1998; nonetheless, we estimated that it will still take over 2.6 years to finish the trials and appeals of all persons currently on trial or awaiting trial. This estimate assumes that (1) both new courtrooms will be completed on time; (2) court will be in session 240 days a year in each courtroom; and (3) there will be a sufficient number of judges, prosecutors, and support elements to fully staff all three on a full-time basis. As of May 1998, the Tribunal had prepared, but not submitted, a request to the United Nations to hire additional support staff to run each courtroom.

Judges

The Tribunal’s ability to try its growing caseload in a timely manner is limited by the lack of judges. The Tribunal’s statute sets the total number of judges for the Tribunal at 11. The rules of procedure and evidence require that a panel of three judges hear each case, except that a judge who confirms an indictment cannot later sit on the panel that tries the accused. In addition, the five members of the appeals chamber cannot include a judge who confirmed an indictment or sat on a trial involving the indictee who brings the appeal. If every convicted indictee appeals his conviction and sentence, which has been the case thus far, each indictee will require nine different judges. This did not pose a problem when the Tribunal only had one trial going at a time. Now, with four trials and one appeal underway and eight more trials pending, the Tribunal’s ability to assign judges to cover the growing caseload has been strained to capacity. For example, as of March 1998, one judge was assigned six different cases, creating serious scheduling problems.

No matter how many courtrooms, investigators, attorneys, and translators or how much support it has, under the Tribunal’s current judicial rules and procedures it can conduct no more than 3 trials at the same time with 11 judges. However, this would mean the appeals chamber could not be constituted at the same time. Our analysis of this best-case scenario showed that the chambers could complete five trials a year, assuming court is in session 240 days a year, and each trial takes 130 court days(including pretrial motions and appeals). However, the Tribunal will have only two trial chambers. This will enable the Tribunal to conduct no more than two simultaneous trials without hindering appeals proceedings. Therefore, under the same assumptions, it will only be able to complete three trials per year. At that rate, it will take more than 3 years to clear the current caseload.

To handle its planned caseload for 1998, the Tribunal assumed its 11 judges would have dramatically increased workloads. For 1998, it assumed the chambers would handle more than twice as many trials; issue twice as many motions, orders, and warrants; and keep court in session 240 days—a 41-percent increase over 1997. However, as of March 1998, the number of pending trials already exceeds what was planned for the year. The President of the Tribunal told us she was concerned about the judges’ ability to handle their growing workload, noting the draining nature of the subject, the unprecedented nature of the legal issues involved, and the requirement to create and revise the rules of procedure and evidence. In her view, the Tribunal needs at least a reserve of judges who can cover trials if the need arises. Since the number of judges for the Tribunal was established by the U.N. Security Council, the Security Council would have to approve an increase in the number of judges.

In light of these concerns, in February 1998 the President of the Tribunal asked the Security Council to authorize four more judges. This would allow the creation of a third trial chamber and provide greater flexibility to assign judges to trial and appeal chambers as needed. On May 13, 1998, the Security Council passed a resolution authorizing three additional judges for the Tribunal.

In addition, the appeals chamber also hears and decides appeals that come from the International Criminal Tribunal for Rwanda. A State Department official told us that five judges will have to travel to Africa to hear and decide on two pending appeals sometime later in 1998. This has the potential to further disrupt the Tribunal’s ability to handle its current caseload, although we were unable to quantify the impact of this requirement.

Information Backlog

The Tribunal has collected an immense amount of evidence and information on war crimes in the former Yugoslavia. By the end of 1997, the Tribunal’s documents showed it had obtained nearly 1.5 million pages of documents, 12,000 photographs, 1,500 videos, and 47 cubic yards of physical evidence. However, the Tribunal has been unable to translate, process, analyze, and use this information throughout the organization. By the end of 1997, less than half of this information had been indexed, summarized, and entered into Tribunal computer information systems—leaving an information backlog of over 800,000 pages of documents, about 9,000 photographs, and so much unviewed videotape we estimated it would take one person over 2 years to watch.

Sustaining such a huge information backlog means the Tribunal is unaware of all the evidence it has obtained. Evidence vital to ongoing or planned investigations may be sitting in boxes, unread or unviewed. Not only may the Prosecutor’s ability to construct a case be limited, but also evidence of potential benefit to the defense may not be known at the time of a trial. Under Tribunal rules of procedure and evidence, the Prosecutor is required to disclose to the defense any evidence it is aware of that may suggest the innocence or mitigate the guilt of an accused or affect the credibility of prosecution evidence. Although Tribunal officials told us that the most important evidence and information already had been processed into the system, some staff were concerned that exculpatory evidence might not be discovered until after a trial was completed.

The Tribunal has a computer database with summary information on all documents obtained to date, which investigators and attorneys use to get a general idea of the information on hand. Defense teams use information extracted from this database in preparing cases for their clients. In early 1997, the Tribunal estimated it had about 560,000 pages of documents collected by its investigators waiting to be indexed, summarized, and entered into this system. To help clear this backlog, the Dutch government provided $2 million to fund a team of 20 staff to index and summarize these documents. The Tribunal anticipates that the Dutch-funded project will have entered summaries of all this information into the Tribunal’s computer system by June 1998.

While this project has been addressing the backlog that existed in early 1997, the Tribunal receives new information at the rate of 20,000 pages of documents a month, which it has been unable to process. The Office of the Prosecutor refers to this additional information backlog as its “frontlog.” We estimate that, as of April 1998, it amounted to about 260,000 pages of documents. The Office of the Prosecutor expects that the additional resources provided in the 1998 budget will allow it to eliminate this new backlog at a rate of between 14,000 to 18,000 pages per month. However, with these new resources devoted to eliminating this new backlog, it is unclear how the Office of the Prosecutor will be able to process the additional 20,000 pages of documents obtained each month. In addition, over 600,000 pages of archived and other documents obtained from other organizations have never been processed into the system. The Office of the Prosecutor also has no capability to process nearly 500,000 pages of documents it expects to receive during 1998 from the archives of the U.N. Peace Forces. In January 1998, the Deputy Prosecutor concluded that the Office of the Prosecutor’s inability to process these collections will create additional backlogs.

After being summarized, selected documents critical to ongoing investigations or trials are fully translated, scanned, and entered into a more complex database that shows links between documents, persons, and organizations. These links are critical for developing chain of command and command authority portions of indictments. As of January 1998, about 60,000 pages of documents were waiting to be entered into this system. According to the Office of the Prosecutor, a project funded by the International Committee of the Red Cross will help eliminate half of this backlog by the end of June 1998 and could entirely eliminate the backlog by the end of October 1998 if additional funding is secured. The Office of the Prosecutor also estimates that when 1998 approved staff levels are reached, the Tribunal believes it will have enough resources on hand to keep up with the 1,500 pages of new information coming in from investigators every month for entry into the more complex database. However, the Office of the Prosecutor will not have enough staff to be able to enter new information obtained from other sources.

In commenting on a draft of this report, the Prosecutor said that our report could raise concerns that the information backlog may cause a miscarriage of justice. While deploring the lack of available resources for backlog processing, the Prosecutor said that she and her staff take all possible initiatives to ensure that the Tribunal’s ability to deliver justice is not harmed and does not believe that the backlog has tainted the Tribunal’s process. In addition, the Prosecutor noted that the Tribunal’s rules of procedure and evidence allow for the review of judgments in the event new information is discovered after trials are completed.

Additional Arrests Could Overwhelm the Tribunal

With the Tribunal’s May 8, 1998, announcement that it was withdrawing indictments for 14 individuals, there are currently 32 known indicted persons still at large and an unknown number of persons whose indictments are under seal (see app. IV for the status of publicly indicted individuals). A series of recent events has made it more likely that there will be significant increases in the Tribunal’s future workload before the end of 1998. First, international military forces in the region have begun detaining individuals indicted by the Tribunal, including those listed in public and sealed indictments. Since June 1997, international military forces in Bosnia and Croatia have detained seven indictees and killed another who resisted apprehension. North Atlantic Treaty Organization officials have said that Stabilization Force (SFOR) troops in Bosnia will continue to detain individuals indicted by the Tribunal that they encounter during the course of their normal duties if the tactical situation permits.Second, in January 1998, the National Assembly of Republika Srpska elected a new, moderate Prime Minister, Milorad Dodik, who announced that his government would strictly implement the Dayton Agreement, including cooperating with the Tribunal to the extent permitted by the Republika Srpska constitution.

Our analysis suggests that an increase in the number of indictees in custody during the year will overwhelm the Tribunal’s ability to conduct ongoing investigations and handle trial preparations with its 1998 resource level. If arrests and surrenders continue throughout 1998, the Tribunal would likely have to close down ongoing investigations, transfer investigators to trial preparation, and seek significant additional donor support—particularly if high-profile indictees such as Radovan Karadzic or a large number of lesser indictees are taken into custody.

An increase in the number of indictees in custody will create other problems for the Tribunal. It will have to find additional space and guards to keep them in custody. In April 1998, the number of indictees in custody (26) exceeded the capacity of the Tribunal’s detention facility (24). In response, the Dutch government agreed to provide the Tribunal additional detention capacity. As required by the statute, indigent indictees also have the right to free defense counsel. According to a senior State Department official, an increase in the number of those in custody would seriously strain the existing capabilities of the two-person staff in the defense counsel unit, which arranges for and provides support to defense attorneys, and the Tribunal could require additional funding to expand this unit. An increase in the number of indictees preparing for trial also would place a heavy burden on the Office of the Prosecutor’s computer support staff. Under Tribunal rules, the prosecutor must provide defense counsel access to all information relevant to the indictees. For example, Tribunal figures showed that discovery searches for the first three trials took between 117 and 200 days. Officials in the information and evidence section told us that these searches placed such a great strain on the computer system that other users were unable to print documents without a 30- to 40-minute delay.

The impact of an increase in the number of indictees in custody on the prosecution would depend on the number of indictments (and thus roughly the number of pending trials) in which the indictees were included. In the Tribunal’s 1998 budget request, the Office of the Prosecutor said it required two attorneys, one legal officer, and one case manager for each pending trial. However, the Tribunal’s 1998 budget request only provides for two trial preparation teams. The Office of the Prosecutor also told us that on average it had to transfer two investigators from ongoing investigations to assist in trial preparations per indictment. Tribunal and State Department officials said that, depending on the number of additional pending trials, the need to transfer additional investigators to trial preparation would significantly disrupt ongoing investigations. Without additional staff, courtrooms, and judges, the indictees would have to wait for the Tribunal to dispose of its current trial caseload—a likely 3-year project with current resources—before their trials begin. Finally, U.S. officials said that, if more investigators and attorneys were added to deal with the influx, the Tribunal also would require greater overall administrative help in such critical areas as translation and victim and witness support.

Challenges to Increasing Capacity

We noted that there are several administrative barriers that could inhibit efforts to quickly increase the Tribunal’s capacity. For example, the Tribunal must comply with U.N. rules for recruitment. According to State, U.N., and Tribunal officials, the complex U.N. process for locating, selecting, and placing new staff in The Hague can take many months. Recruitment for U.N. positions must include global notification, screening for necessary skills, and compliance with geographic and gender diversity requirements. In an effort to speed this process, the U.N. Secretariat has granted the Tribunal nearly complete control over recruitment. Nonetheless, the Registry, which provides administrative support for the Tribunal, told us it expected it would take about 3 months from the time a position vacancy is posted before new staff are actually in place at The Hague. However, State and Tribunal officials who have had experience with this process told us that it actually takes 6 to 12 months to identify candidates and bring him or her on board.

Surcharge

Another barrier is the United Nations’ surcharge on voluntary contributions. Voluntary contributions to U.N. programs administered and managed by the U.N. Secretariat, such as the Tribunal, are charged a 13-percent overhead surcharge for cash and in-kind contributions, such as loaned personnel. According to the U.N. Under-Secretary-General for Management, a 1980 U.N. General Assembly resolution does not allow the United Nations to use funds from its regular budget to support the costs incurred by voluntary contributions from member states. U.N. officials told us that the surcharge is necessary to recoup the administrative costs involved in supporting the equipment and staff contributed by member states, although in commenting on this report, the United Nations said that the surcharge can be waived if a contribution does not involve additional costs to the United Nations.

The surcharge can deter potential donors. For example, because of the surcharge, the United States significantly reduced the number of U.S. loaned staff from 22 in 1994 to 7 in March 1998. The Defense Department has never agreed to pay the surcharge and, as a result, in December 1996, removed the staff it had loaned to the Tribunal. Defense Department officials likened the surcharge to paying tax on a gift, and the Department will not loan staff to the Tribunal unless the United Nations drops the fee or the State Department pays the 13-percent U.N. surcharge. The Federal Bureau of Investigation also refused a December 1997 Tribunal request to loan investigators to the Tribunal until the State Department agreed to pay the surcharge or the United Nations agreed not to impose it. These interagency negotiations delayed the delivery of U.S.-loaned staff to the Tribunal by several months. According to a senior State Department official, in March 1998 the U.N. Secretary General and the Secretary of State discussed this issue. The official said that the Secretary General indicated his agreement with the U.S. position and would address the issue. The State Department took this to mean that the United States would no longer be billed for the voluntary contribution surcharge. In commenting on this report, the U.N. Under-Secretary-General for Management clarified the Secretary General’s comments during the meeting, and said that the Secretary General did not announce a change in the United Nations’ policy on the surcharge, but only indicated that adjustments might be possible.

Loaned Staff

The use of loaned staff at the United Nations has also been a controversial issue for a number of years. In September 1997, the General Assembly passed a resolution calling on the Secretary General to phase out at the earliest possible date the use of most loaned personnel at the United Nations. U.N. documents show that developing countries in particular dislike the practice because, in part, they see it as damaging potential employment opportunities for their nationals. They also see the practice as a means for the wealthy countries to influence the United Nations unfairly, according to these documents and a former U.S. official.

As of February 1998, 9 governments and 3 nongovernmental organizations had loaned about 50 personnel to the Tribunal, including 5 from the United States, primarily prosecutors from the Department of Justice. The Tribunal is expected to gain additional loaned personnel from U.N. member states for the first 6 months of 1998 to help the Tribunal handle its increasing workload, until new staff hired with funds from the 1998 budget are brought on board. Although there are provisions for continued use of a limited number of specialized positions that cannot be filled through the U.N. recruitment system, the Tribunal’s 1998 budget assumed that its entire complement of loaned staff would be gone by the end of the year. In commenting on this report, the Registrar said that, in accordance with the instructions of the General Assembly and the Secretary General, the Tribunal is taking steps to phase out virtually all of its loaned personnel by the end of June 1998. However, according to State Department officials, the Secretary General told the Secretary of State in a March 1998 meeting that he would find a way to address the issue of restrictions on the continued use of staff loaned to the Tribunal. State Department officials told us that as of May 4, 1998, the United States had sent two additional loaned personnel to the Tribunal and plans to send at least eight more.

If the use of loaned staff is discontinued, the Tribunal would lose vital expertise in areas such as investigations and forensics that are needed to conduct the Tribunal’s work, according to Tribunal and U.S. officials. Discontinuing the use of loaned personnel also would remove an important tool the Tribunal has used in the past to obtain skilled personnel for key positions quickly. U.S. officials told us that loaned staff are the best way for the Tribunal to quickly obtain the highly skilled personnel necessary to handle its complex investigations and prosecutions. For example, the Tribunal’s ability to rapidly send investigators to Kosovo will rely on loaned staff from the United States and other countries. In addition, three out of four of the attorneys that prosecuted the first trial at the Tribunal were loaned staff. According to U.S. officials, as a result of the Secretary of State’s discussions with the U.N. Secretary General, the Tribunal would be allowed to continue to use loaned personnel. According to State Department officials, the General Assembly resolution that calls for the discontinuation of loaned personnel contains exceptions that appear to fit the circumstances of the Tribunal.

Conclusions

After overcoming significant startup challenges, the Tribunal has begun to successfully investigate and prosecute war criminals. However, the Tribunal has insufficient investigators, judges, courtrooms, and information processors to carry out its existing workload because the recent increase in the number of detainees exceeds what the Tribunal planned for in its 1998 budget request. The Tribunal’s capacity to carry out its primary functions will become more strained as more indicted are brought into custody. As a result, with its current capacity, the Tribunal will be unable to perform all of the investigations it planned for the year or ensure that trials begin without undue delay. If arrests and surrenders continue throughout 1998, the international community will likely have to provide additional support to the Tribunal to ensure it can maintain its legitimacy.

Agency Comments and Our Evaluation

The Departments of State and Defense, the Tribunal, and the U.N. Under-Secretary-General for Management provided written comments on a draft of this report. State and Defense generally concurred with the report. State, the Tribunal, and the U.N. Under-Secretary-General for Management described their views on the merits of the United Nations’ policy on imposing a surcharge on cash and in-kind voluntary contributions and its application to contributions to the Tribunal. In some cases, these views differ and we added information to the report to reflect their respective positions. We did not assess the merits of the surcharge policy, but rather focused on its impact on efforts to increase the Tribunal’s capacity. The Tribunal and the U.N. Under-Secretary-General for Management also provided comments which we have incorporated in the report as appropriate. The comments of the Departments of State and Defense, the Tribunal, and the U.N. Under-Secretary-General for Management along with our evaluation of them are reprinted in their entirety in appendixes V through VIII, respectively.

We are sending copies of this report to other appropriate congressional committees, the Secretaries of State and Defense, the U.N. Secretary General, and the President of the Tribunal. Copies will also be made available to other interested parties upon request.

Please contact me at (202) 512-4128 if you or your staff have any questions concerning this report. Major contributors to this report are listed in appendix IX.

Objectives, Scope, and Methodology

This report (1) reviews the startup challenges the Tribunal faced and (2) assesses the Tribunal’s capacity to carry out its mandate; that is, whether the Tribunal has sufficient staff, facilities, and equipment needed to investigate and prosecute individuals indicted in accordance with its statute and rules of procedure. We included information as of May 14, 1998.

To review the startup challenges of the International Criminal Tribunal for the former Yugoslavia, we consulted Tribunal annual reports and press releases, budget resolutions from the United Nations’ Fifth Committee and Advisory Committee on Administrative and Budgetary Questions, and budget documents from the U.N. Secretariat. We also met with State Department, U.N., and Tribunal officials to discuss how the Tribunal was created and how its current structure and operations evolved over time.

To assess the Tribunal’s capacity to carry out its mandate, we measured its capacity in four areas—investigators, courtrooms, judges, and information processing—that (1) were central to the Tribunal’s ability to perform its mission and (2) we were best able to assess from the available documentation. The Tribunal’s annual reports and 1998 budget request contain detailed information on these four areas that we supplemented in follow-up discussions with Tribunal officials. We did not assess the Tribunal’s administrative functions.

To obtain the information necessary to assess the Tribunal’s capacity, we met with Tribunal officials at The Hague, the Netherlands, including the President of the Tribunal, the Registrar, and the Deputy Prosecutor; and with officials from the U.S. embassy in The Hague; the U.N. Secretariat; the U.N. Office of Internal Oversight Services (OIOS); the Department of State in Washington, D.C.; and the U.S. Mission to the United Nations in New York City. We also spoke with a number of officials from the U.S. Departments of Justice and Defense who had worked at the Tribunal on loan from the United States. We obtained documents and reports from the Departments of State, Justice, and Defense that pertained to the Tribunal. We also obtained and reviewed a number of U.N. and Tribunal documents, including the Tribunal’s annual reports and press releases, budget resolutions from the United Nations’ Fifth Committee and Advisory Committee on Administrative and Budgetary Questions, budget documents from the U.N. Secretariat, and OIOS reports about the Tribunal.

Because we are an agency of the U.S. government, we do not have audit authority to review the operations of the United Nations and the Tribunal.

Although Tribunal officials consented to our study and were helpful and forthcoming in our discussions, the United Nations and the Tribunal did not provide us with the internal documents that would have enabled us to assess how effectively or efficiently the Tribunal has used its available financial resources. Reports from the OIOS indicate that this may have been a problem. Without such access, we were unable to review the overall adequacy of the Tribunal’s financial resources nor could we determine whether the Tribunal could have more efficiently and effectively allocated them. For example, we did not have access to internal Tribunal documents that detailed the assumptions and rationales behind its 1998 budget request, nor could we review Tribunal financial records to determine whether allocated funds were being fully or effectively used in all areas of the operation.

Nonetheless, we were able to compare the Tribunal’s current and future workload with its capacity in its key investigative, prosecutorial, and judicial functions. As part of its 1998 budget request, the Tribunal developed 113 indicators such as number of ongoing trials and number of courtrooms to measure its workload, establish goals, and judge performance. We used some of these indicators to measure the Tribunal’s current and future workload. Table I.1 shows some additional examples of these indicators.

Pretrial motions, orders, and applications Number and status of investigations 28 (9 active; 10 partially active; 3 suspended; 6 completed)

10 (3 active; 7 partially active)

12 (12 fully active)

Number of documents in OTP evidence collection Detainees (average)

Legend OTP = Office of the Prosecutor.

Since the Tribunal is an unprecedented body with a unique mandate, there are few recognized standards or criteria for critical aspects of its operations, such as how many investigators are required per investigation, how many attorneys are necessary for preparing an indictment, how many people the Tribunal needs to indict, and how long it should remain in operation. However, the Security Council resolutions that established the Tribunal, its statute, and its rules of procedure and evidence provide a series of requirements for the Tribunal and its judicial process. For example, each trial must be heard by three judges and the accused have the right to be informed of any evidence known to the Prosecutor that may suggest their innocence or mitigate their guilt and to be tried without undue delay. We performed our assessment by determining whether the Tribunal had sufficient capacity in key areas to be able to comply with these criteria.

The ability to ensure that trials begin without undue delay is particularly important. However, the Tribunal has no specific guideline for determining the exact length of time which constitutes undue delay. In a September 1996 decision, a Tribunal trial chamber found that applying the “without undue delay” standard depends on individual circumstances and cited seven factors enumerated by the European Commission of Human Rights that should be considered when making that determination. These factors include the seriousness of the offense, the difficulties in conducting the investigation, and the impact of detention on the indictee. In that decision, the Tribunal ruled that a detainee’s 4-month detention before the start of his trial could not, in the circumstances of that case, be considered undue delay. The Tribunal President and State Department officials generally considered that pretrial detention longer than 2 years could be considered undue delay, although this may vary depending on the circumstances of the case.

To examine the relationship between capacity and workload, we used estimates the Tribunal had developed on the number of people or amount of time necessary to carry out key tasks based on its past experience. For example, the Tribunal assumed each trial would require 100 court days and that one person could index between 14,000 to 18,000 pages of information per month (see table I.2). The Tribunal used these estimates to justify its request for funds. As such, the Tribunal’s 1998 budget request represents its best judgment on what it needed to accomplish its performance goals for the year. We used these estimates to calculate the number of staff or length of time necessary to handle the Tribunal’s current and potential workload.

In assessing the number of investigators, we used the Tribunal’s estimates of the number of investigations it planned to undertake as the criteria for measuring whether it had enough investigators. Our ability to analyze the number of investigators was further limited because we did not have access to specific information on the relationship between the number of investigations and the number of investigators. Nonetheless, we contrasted the number of investigators the Tribunal has with the number it thought necessary to carry out the 12 investigations it planned for 1998. We also calculated the number of investigators that would have to be pulled off investigations to assist in trial preparation based on information we received from the Office of the Prosecutor.

To calculate how long it would take the Tribunal to complete its current caseload based on the number of courtrooms, we applied the Tribunal’s standard estimates of 20 days necessary for pretrial motions, 100 days for the trial, and 10 days for the appeals to determine the total number of trial days. We assumed that all verdicts would be appealed. We also used the Tribunal’s 1998 budget estimates of the number of days (1) court was in session during 1997 and (2) the Tribunal plans to have court in session in 1998. This allowed us to estimate the total number of courtroom days per year and the total length of time necessary to complete the current caseload.

The courtroom analysis assumed that there will be enough judges and other staff to allow the operation of three courtrooms. With its current 11 judges, the Tribunal can have no more than three trials going at the same time, due to the requirement in the Tribunal’s statute that three judges need to hear each trial. However, in practice, the Tribunal can only hear two trials at the same time without jeopardizing its ability to constitute an appeals chamber, since it has only two trial chambers. Using the Tribunal’s estimate of being in session 240 days a year, we assumed that the court could handle 480 trial days a year. If each trial takes 130 days, the Tribunal could complete about 3.7 trials per year.

Our analysis of the size of the Tribunal’s information backlog and its ability to eliminate it was based on the 1998 budget request and supplementary information we obtained from the Office of the Prosecutor. Based on this information, we calculated that the Tribunal has nearly 1.5 million pages of information. We then estimated the size of the Tribunal’s backlog based on its estimates of how quickly staff could summarize and index documents, enter documents into the detailed database, and scan photos into the document database. We also calculated the number of hours of unviewed videotape based on estimates we obtained from the Tribunal. Finally, based on figures in the 1998 budget request, we estimated how long it would take the Tribunal to clear its backlog of information and whether the Tribunal would be able to keep up with the inflow of new information during the year.

We conducted our work from September 1997 to May 1998 in accordance with generally accepted government auditing standards.

U.N. Security Council Resolutions Pertaining to the Establishment of the Tribunal

Reaffirms that all parties to the conflict are bound to comply with their obligations under international humanitarian law.

Condemned any violations of international humanitarian law and required that all parties cease and desist from breaches of the law. Called on U.N. member states to report violations.

Established an impartial Commission of Experts to investigate “grave breaches of the Geneva Conventions and other violations of international humanitarian law. . . .”

November 16, 1992 Reinforced request in resolution 780 for Commission to continue its investigative efforts. Reaffirmed the United Nations’ condemnation of violations of humanitarian law. Emphasized persons would be held individually responsible.

Authorized the establishment of the International Criminal Tribunal and requested the U.N. Secretary General report on the statute of the Tribunal within 60 days.

Established the Tribunal and approved the Secretary General’s draft of the statute.

Established list of 23 potential judges from which the General Assembly was to select 11.

First selection of Tribunal Prosecutor.

Appointment of second Tribunal Prosecutor.

The Tribunal’s Jurisdiction, Organization, and Process

Tribunal’s Jurisdiction

The Tribunal’s jurisdiction stems from its U.N. Security Council mandate to prosecute individuals responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since January 1, 1991. To implement its mandate, the Tribunal functions in accordance with the provisions of the Security Council-approved 1993 statute and its set of rules of procedure and evidence. The statute authorizes the Tribunal to prosecute persons for grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, crimes against humanity, and the commission of genocide. The Tribunal and national courts in Bosnia, Croatia, and other member states have concurrent jurisdiction; however, the statute recognizes the Tribunal as having primacy over those courts. Thus, the Tribunal can formally request national courts to defer to the Tribunal at any stage in their own investigation or prosecution of alleged war crimes.

The statute requires all U.N. member states to cooperate with the Tribunal in the investigation and prosecution of accused war criminals. States are required to comply without undue delay with any Tribunal request for assistance or order issued by a trial chamber. This includes the identification and location of persons; the production of evidence; the service of documents; and the arrest, detention, and transfer of the accused to Tribunal headquarters in The Hague, the Netherlands. However, the Tribunal has no direct enforcement power if a state fails to comply. It can only report lack of compliance to the Security Council. For example, in July 1997, three judges from the Tribunal ruled that Croatia and its Minister of Defense are required to comply with subpoenas requiring them to produce documents relevant to an ongoing trial. However, in October 1997, the appeals chamber of the Tribunal ruled that although the Tribunal can order the production of information by states, it has no authority to enforce those orders and must rely on the Security Council to take action against the uncooperative state. The signatories of the 1995 Dayton Agreement, some of whom are not members of the United Nations, also pledged to fully cooperate with the Tribunal, although the Bosnian entity Republica Srpska, and Serbia and Montenegro have not lived up to their pledge. The statute also provides a role for the U.N. General Assembly in electing the judges of the Tribunal, approving the budget, and reviewing the Tribunal’s annual reports.

Tribunal’s Organization

As shown in figure III.1, the Tribunal is organized into three bodies: an Office of the Prosecutor, the judicial chambers, and a Registry for common administrative support. In total, these bodies constitute an entire criminal justice system. The Tribunal shares the Prosecutor and the five members of its judicial appeals chamber with the International Criminal Tribunal for Rwanda.

The Office of the Prosecutor is required to both investigate and prosecute persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991. The Prosecutor, who heads the Office of the Prosecutor, is nominated by the U.N.

Secretary General and appointed by the U.N. Security Council, serves a 4-year term, and is eligible for reappointment. The first acting Prosecutor took office in July 1994, and the current Prosecutor began serving her term on October 1, 1996. The Prosecutor selects the appropriate cases to investigate, identifies and locates relevant potential witnesses, gathers evidence to corroborate that criminal acts have occurred, and establishes that those acts were crimes within its jurisdiction. The Office of the Prosecutor operates independently of the judges of the Tribunal. The investigation division of the Office of the Prosecutor is responsible for conducting investigations of suspected war criminals. The prosection division conducts the trial proceedings before the Chambers and provides legal advice to assist ongoing investigations. The information and evidence section is responsible for the retention, storage, security, and retrieval of information and physical evidence and provides computer services support. The Office of the Prosecutor also has three small offices in Sarajevo, Zagreb, and Belgrade to support and assist investigators working in the field. The government of Republika Srpska has also offered to allow the Office of the Prosecutor to open a fourth office in Banja Luka.

The Judicial Chambers holds the trials and makes the ultimate determination of guilt or innocence of the indictees. The chambers is composed of 11 judges from 11 different countries who rotate between 2 trial chambers of 3 judges and an appeals chamber of 5 judges. The judges are elected by the General Assembly from a list of nominees submitted by the Security Council for a term of 4 years and are eligible for reelection. The President of the Tribunal, who is also a member of the appeals chamber, is elected by the judges and assigns the judges to both chambers, presides over the plenary meetings of the chambers, and supervises the performance of the Registry functions. The President is also responsible for preparing and submitting the Tribunal’s annual reports to the United Nations and reporting instances of noncompliance by states.

The Registry provides support to the Tribunal. Its judicial responsibilities include managing courtroom operations, providing legal support to judges, assigning defense counsel to indigent indictees, supervising the detention unit, protecting and supporting victims and witnesses, and recommending protective measures and maintaining contacts with U.N. member states. The Registry’s administrative responsibilities involve financial administration and resource planning, human resource management, language services, meetings and documentation services, electronic and communications support, and building management. The Registry is also responsible for security at the Tribunal, handling relations with the press, and providing information to the public on the Tribunal’s activities. The Registry is headed by the Registrar, who is appointed by the U.N. Secretary General.

Tribunal’s Process

The Tribunal’s overall process for carrying out its mandate is divided into a number of steps, as shown in figure III.2. Each step is a link in the functions of the overall criminal-judicial process. The international community, and not the Tribunal, is responsible for the arrest or surrender of indictees.

The process begins when the Office of the Prosecutor collects, translates, and organizes evidence of violations of international humanitarian law. This information comes from individuals, member states, or nongovernmental organizations or is collected by investigators from the Office of the Prosecutor. The Prosecutor may summon and question suspects, victims, and witnesses; obtain their statements; collect evidence; and conduct site investigations and other matters necessary for completing the investigation and preparing the case for trial. After reviewing information collected during the investigation, the Prosecutor prepares an indictment if there is sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal. If a reviewing judge agrees that the evidence establishes a prima facie case, the indictment is confirmed and an arrest warrant issued. The indictee must then be located, arrested, and transferred to The Hague by authorities other than the Tribunal.

Upon arrival in The Hague, the indictee is placed in detention, enters a plea, and receives a trial date set by a judge. The Tribunal’s statute requires that the trial chambers try the accused without undue delay, in a fair and expeditious manner. During the trial, the Prosecutor and defense present their cases to a panel of three judges; there is no jury. After the presentation of evidence and cross-examination, the trial chamber announces its decisions. Either the Prosecutor or defense can appeal the decision within 15 days. If the five-member Appeals Chamber upholds a conviction, the guilty party is transported from The Hague to serve his sentence in a country designated by the President of the Tribunal. Italy, Finland, and Norway have signed formal agreements with the Tribunal to allow persons convicted by the Tribunal to serve sentences in their national prisons.

The Tribunal’s statute and rules of evidence and procedure spell out a series of procedural requirements and standards that the Tribunal must comply with as it carries out each step of this process. For example, only the Prosecutor can determine who will be investigated. Indictments must have sufficient evidence to provide reasonable grounds for believing a suspect has committed a crime—but the Prosecutor must eventually collect enough information to prove guilt beyond a reasonable doubt. Indictees are presumed innocent until proven guilty and have a number of rights, including the right to counsel and the ability to avoid self-incrimination, to be tried without undue delay, and to be informed of any information known to the Prosecutor that may suggest their innocence or mitigate their guilt. The rules of procedure and evidence also require newly arrested indictees to appear without delay before a trial chamber to enter a plea, which may delay ongoing trials. Ongoing trials will not be delayed by pleas once the new courtroom room for limited trial proceedings is completed in the spring of 1998.

Status of Publicly Indicted Individuals as of May 14, 1998

As of May 14, 1998, the Tribunal has made public 20 indictments against 79 individuals. With the Tribunal’s May 8, 1998, announcement that it was withdrawing indictments for 14 individuals, there are currently 32 known indicted persons still at large, 26 are in custody, 3 were released after detention for lack of evidence, 3 are dead, and 1 was granted provisional release for health reasons on the understanding that he will return to The Hague when his trial begins. Of those in custody or on provisional release, 18 are waiting for their trials to start, 7 are currently on trial, 1 pled guilty and has been sentenced, and another has been convicted and is waiting for a decision on his appeal. The pace of surrenders and arrests has dramatically increased in recent months. Twenty-two indictees—including three later released for lack of evidence—were arrested or surrendered to the Tribunal in the past 12 months, including eight since the beginning of 1998. Because of the reluctance of some states to hand over indicted persons to the Tribunal, the Prosecutor has also obtained approval from confirming judges to seal an unknown number of indictments and issue sealed arrest warrants to other states or international military forces willing or able to carry them out. The total number of persons listed in these sealed indictments is unknown.

This appendix provides information on the 20 indictments made public by the Tribunal (see table IV.1) and the status of the 79 persons named in those indictments (see table IV.2) as of May 14, 1998. Some indictments are named for the location of where the alleged atrocities took place and others for the person named in the indictment.

Slobodan Miljkovic and five others planned and carried out deportations, killings, beatings, sexual assaults, and torture against the non-Serb population of Bosanski Samac in northeastern Bosnia.

Goran Jelisic and one other systematically killed, tortured, sexually assaulted, and beat Bosniak and Bosnian Croat detainees in Brcko and the nearby Luka Camp in northeastern Bosnia.

Zejnil Delalic and three others murdered, tortured, raped, and beat Bosnian Serb prisoners at the Celebici Camp in central Bosnia from late spring to fall of 1992. (continued)

Simo Drljaca and Milan Kovacevic committed genocide in the Prijedor municipality of northwestern Bosnia between April 1992 and January 1993 by planning, organizing, and implementing the establishment of detention camps for the Bosniak and Bosnian Croat population.

Drazen Erdemovic participated in the summary execution of hundreds of Bosniaks following the Bosnian Serb takeover of Srebrenica in July 1995.

Dragan Gagovic and seven others subjected Bosniak women, some as young as 12 years of age, to gang rape, systematic rape, sexual assaults, torture, and enslavement.

Anto Furundzija did nothing to stop the torture and rape of prisoners near Vitez in May 1993.

Radovan Karadzic and Ratko Mladic are responsible for genocide in the unlawful confinement, murder, rape, torture, beating, robbery, and inhumane treatment of the non-Serb civilian population of Bosnia. Karadzic and Mladic are also responsible for the sniping campaign against civilians in Sarajevo and for taking U.N. peacekeepers hostage and using them as human shields.

Dusko Sikirica and 12 others killed, sexually assaulted, tortured, and beat Bosniak and Bosnian Croat detainees at the Keraterm Camp near Prijedor in northwestern Bosnia.

Dario Kordic and five others carried out the “ethnic cleansing” of the Lasva Valley in central Bosnia including the murder, wounding, detention, and use of the Bosniak civilian population as hostages, forced labor, and/or human shields.

Zoran Kupreskic and seven others carried out systematic attacks in April 1993 against the town of Vitez, the village of Ahmici, and eight other Bosniak villages in the Lasva Valley of central Bosnia, leading to the murder or illegal detention of many of their civilian inhabitants.

Zoran Marinic murdered four of his Bosniak neighbors and wounded a fifth in the Bosnian Croat-controlled village of Busovaca in central Bosnia in April 1993.

Zeljko Meakic and 18 others killed, sexually assaulted, tortured, and beat Bosniak and Bosnian Croat detainees at the Omarska camp near Prijedor in northwestern Bosnia.

Djordje Djukic planned, prepared, or otherwise aided in the shelling of civilian targets in Sarajevo, Bosnia, from May 1992 to December 1995.

Radovan Karadzic and Ratko Mladic planned, instigated, ordered, or otherwise aided in the mass killing of thousands of Bosniaks following the takeover of Srebrenica in eastern Bosnia in July 1995. (continued)

Ivica Rajic commanded the unlawful attack by the Bosnian Croat military against the Bosniak village of Stupni Do in October 1993, killing at least 16 civilians and almost totally destroying the village.

Dragan Nikolic killed, tortured, and treated detainees inhumanely at the Susica camp in eastern Bosnia in the summer of 1992.

Dusko Tadic and Goran Borovnica persecuted the Bosniak and Bosnian Croat population of the Prijedor area; deported civilians to prison camps; and killed, beat, and raped civilians within and outside the Omarska Camp in northwestern Bosnia.

Mile Mrksic and three others were responsible for the killing of about 260 non-Serb men after their forcible removal from the hospital in Vukovar, Croatia, in November 1991.

Milan Martic ordered the firing of cluster bombs into the central part of Zagreb, Croatia, in May 1995.

Table IV.2: Status of Persons Whose Indictments Were Made Public as of May 14, 1998 Indictment(s)

Status as of May 14, 1998 Arrested by Croatian authorities on June 8, 1996, and delivered to the Tribunal on April 28, 1997. Currently in custody and on trial at the Tribunal.

Tribunal confirmed dead on December 18, 1997.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Surrendered to the Tribunal in April 1996. Currently in custody and on trial at the Tribunal.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

Arrested by German authorities on March 18, 1996, and delivered to the Tribunal on May 8, 1996. Currently in custody and on trial at the Tribunal.

Arrested by Bosnian authorities on May 2, 1996, and delivered to the Tribunal on June 13, 1996. Currently in custody and on trial at the Tribunal.

Arrested by Bosnian authorities on January 30, 1996, and delivered to the Tribunal. Released from Tribunal for health reasons in April 1996 and died of cancer on May 18, 1996.

Arrested by UNTAES forces and Tribunal authorities in Croatia on June 27, 1997, at which time his sealed indictment was made public. Currently in custody and on trial at the Tribunal.

Killed by SFOR forces on July 10, 1997, while resisting detainment, at which time his sealed indictment was made public. (continued)

Indictment(s)

Status as of May 14, 1998 Arrested by Serbian authorities on March 2, 1996; sent to the Tribunal on March 30, 1996, as a witness; and indicted on May 29, 1996. Pled guilty on May 31, 1996, and sentenced to 10 years on November 29, 1996. Sentence reduced to 5 years on March 5, 1998, after successful appeal. Currently in custody at the Tribunal, awaiting a decision on where he will serve his sentence.

Detained by SFOR forces on December 18, 1997, at which time his sealed indictment was made public. Currently in custody at the Tribunal, awaiting the start of his trial.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Detained by SFOR forces on January 22, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on October 6, 1997, and released in December 1997 for lack of evidence.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial. (continued)

Indictment(s)

Status as of May 14, 1998 The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Detained by SFOR forces on July 10, 1997, at which time his sealed indictment was made public. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on March 4, 1998. Currently in custody at the Tribunal, awaiting start of his trial.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

Shot and wounded by SFOR forces while resisting detention on December 18, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

Detained by SFOR forces on April 8, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Arrested by Bosnian authorities on May 2, 1996, and delivered to the Tribunal on June 13, 1996. Currently in custody and on trial at the Tribunal.

Arrested by Austrian authorities on March 18, 1996, and delivered to the Tribunal on April 9, 1996. Currently in custody and on trial at the Tribunal. (continued)

Indictment(s)

Status as of May 14, 1998 Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Detained by SFOR forces on April 8, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on October 6, 1997, and released in December 1997 for lack of evidence.

Surrendered to the Tribunal on October 6, 1997. Currently in custody at the Tribunal, awaiting the start of his trial.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Surrendered to the Tribunal on February 14, 1998. Granted provisional release from the Tribunal custody for health reasons on March 26, 1998. Currently in Bosanski Samac, but will return to the Tribunal when his trial begins.

Surrendered to the Tribunal on October 6, 1997, and released in December 1997 for lack of evidence. (continued)

Indictment(s)

Status as of May 14, 1998 Arrested by German authorities in February 1994 and turned over to the Tribunal in April 1995. Convicted by the Tribunal of crimes against humanity and violations of the laws or customs of war in May 1997 and sentenced to 20 years. Tadic remains in custody at the Tribunal, awaiting the outcome of pending prosecution and defense appeals of his sentence.

Surrendered to the Tribunal on February 14, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

The Tribunal dropped the charges against him in May 1998, although it reserved the right to reinstate charges at a later date.

Surrendered to the Tribunal on February 24, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

Surrendered to the Tribunal on April 16, 1998. Currently in custody at the Tribunal, awaiting the start of his trial.

Comments From the Department of State

Comments From the Department of Defense

Comments From the International Criminal Tribunal for the Former Yugoslavia

The following are GAO’s comments on the International Criminal Tribunal for the former Yugoslavia’s letter dated May 5, 1998.

GAO Comments

1. We modified the text to incorporate these comments. 2. We specifically explain the limitations on the use of loaned personnel. 3. It is possible for the Tribunal to hold three trials at the same time, although this would mean the appeals chamber could not be simultaneously constituted. We modified the text to clarify this point. As such, our analysis used the best-case scenario of holding three trials at a time; an approach we believe to be conservative. 4. We calculated the figure of 800,000 pages in the document backlog from information obtained from the Office of the Prosecutor. 5. We acknowledge the Tribunal’s comment, however, our report does not express an opinion on the United States’ position regarding the surcharge. 6. As explained in our Objectives, Scope, and Methodology (app. I), we did not assess the Tribunal’s administrative functions, or the efficiency and effectiveness with which it used its resources because to have done so would have required complete access to U.N. internal documents on these matters. The United Nations does not make such documents available to us. 7. We reviewed past performance reports for the Tribunal and found that they did not provide the level of detail necessary to perform a review of the Tribunal’s capacity. 8. As we noted in our Objectives, Scope, and Methodology, there are uncertainties in attempting to estimate the potential future trial workload for the Tribunal. The number of future trials is a function of when accused are arrested or surrender, the extent to which they are tried in groups, and the uncertainties involved in estimating how long pretrial motions, trials, and appeals will take. To estimate workload, our analysis used the Tribunal’s historic trends and track record on these factors. 9. We agree that in this instance the accused would not face any additional delay. Although our analysis indicates that the Tribunal may be unable to begin trials without undue delay, this does not mean that accused war criminals should avoid surrendering.

Comments From the U.N. Under-Secretary-General for Management

The following are GAO’s comments on the U.N. Under-Secretary-General for Management’s letter dated May 7, 1998.

GAO Comments

1. The United Nations and the Tribunal did not provide us access to budget requests and justifications from component units of the Tribunal that were used to support the budget request; Tribunal budget requests as submitted to U.N. headquarters; and memorandums detailing operational implications of resource shortfalls, how assumptions behind budget requests were developed, and rationales for estimates of future workload. 2. The issues of loaned personnel and the 13-percent surcharge are matters of disagreement between the United States and the United Nations. We have presented the factual basis for our comments as contained in the available documentary evidence, including cables and memos from the Departments of State, Defense, and Justice; General Assembly resolutions; and reports from the Secretary General. We modified our report to better reflect the information contained in these documents, specifically that the mandate from the United Nations to discontinue the use of loaned staff came from a General Assembly resolution. 3. We did not reprint this attachment to the Under-Secretary’s comments. The attachment is available as U.N. document A/51/688. 4. The issue of what was discussed and agreed to at the meeting between the Secretary of State and the Secretary General is a matter for the State Department and the United Nations to resolve. Since we did not attend the meeting, and written documentation of the meeting was not available, information in our report is based on the recollection of State Department officials who attended the meeting. We also discussed this matter with a U.N. official who attended the meeting and attempted to clarify the report to reflect the United Nations’ view. 5. Evidence we obtained, as discussed in the report, shows that potential donors have been deterred from loaning personnel to the Tribunal because of the surcharge. For example, officials from the Departments of Defense and Justice specifically told us that they would only loan personnel if the surcharge is not applied. 6. We have modified the text to incorporate this comment. 7. This indicator appears in paragraph 25 of the Tribunal’s budget request. 8. Our analysis assumed that all 11 judges would remain in The Hague. Having to relocate five judges to Rwanda to hear appeals will decrease the number of judges available to hear trials in The Hague, and thus potentially increase the amount of time necessary to handle the caseload. We did not quantify this effect.

Major Contributors to This Report

National Security and International Affairs Division, Washington, D.C.

Office of the General Counsel, Washington, D.C.

Related GAO Products

Bosnia Peace Operation: Pace of Implementing the Dayton Accords Accelerated in Mid-1997 (GAO/NSIAD-98-138, June 2, 1998).

Bosnia Peace Operation: Progress Toward the Dayton Agreement’s Goals—An Update (GAO/T-NSIAD-97-216, July 17, 1997).

Bosnia Peace Operation: Progress Toward Achieving the Dayton Agreement’s Goals (GAO/NSIAD-97-132, May 5, 1997).

Peace Operations: Update on the Situation in the Former Yugoslavia (GAO/NSIAD-95-148BR, May 8, 1995).

Humanitarian Intervention: Effectiveness of U.N. Operations in Bosnia (GAO/NSIAD-94-156BR, Apr. 13, 1994).

The first copy of each GAO report and testimony is free. Additional copies are $2 each. Orders should be sent to the following address, accompanied by a check or money order made out to the Superintendent of Documents, when necessary. VISA and MasterCard credit cards are accepted, also. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent.

U.S. General Accounting Office P.O. Box 37050 Washington, DC 20013 Room 1100 700 4th St. NW (corner of 4th and G Sts. NW) U.S. General Accounting Office Washington, DC Orders may also be placed by calling (202) 512-6000 or by using fax number (202) 512-6061, or TDD (202) 512-2537.

Each day, GAO issues a list of newly available reports and testimony. To receive facsimile copies of the daily list or any list from the past 30 days, please call (202) 512-6000 using a touchtone phone. A recorded menu will provide information on how to obtain these lists.