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Can IFOR take active steps to hunt down and arrest indicted war criminals

by Noel Malcolm

Western politicians, IFOR military commanders and even the Secretary-General of NATO himself, Senor Javier Solana, are all agreed on one thing: it is not possible for IFOR soldiers to take active steps to hunt down and arrest indicted war criminals such as Radovan Karadzic and Ratko Mladic, unless IFOR receives a 'new mandate'.

This is a myth. Or rather, it is something rather worse than a myth: it is a gross falsification of some simple and publicly available facts.

The existing IFOR mandate was set out in the Dayton Agreement (subsequently converted into an international treaty in Paris, and endorsed by a UN Security Council Resolution), Annex IA, Article 6. In paragraph 3(a) of that article, it is clearly stated that IFOR shall have the right 'to help create secure conditions for the conduct by others of other tasks associated with the peace settlement, including free and fair elections'.

As Carl Bildt, the 'High Representative' in Sarajevo, has publicly observed, any prospect of free and fair elections is jeopardized by the continuing freedom from arrest of Karadzic and Mladic (see report entitled 'Karadzic "must be arrested before election"', The Times, 13 June 1996). Since the arrest of these men is a necessary step towards creating 'secure conditions' for elections, it is fully within the existing mandate of IFOR to go ahead and do it.

There is, as it happens, another element of the IFOR mandate which also covers the arrest of indicted war criminals, though this element is little understood (except by international lawyers). Paragraph 3 (c) of the same Article 6 of Annex IA to the Dayton Agreement states that IFOR also has the right 'to assist the UNHCR and other international organizations in their humanitarian missions'.

The general public will not be aware that 'humanitarian' is a technical term, which in legal terminology describes international human-rights law. The Hague Tribunal exists to enforce 'humanitarian law', and it therefore qualifies as an international organization with a 'humanitarian mission'. Thus Annex 4, Article 2, paragraph 8 of the Dayton Agreement specifically refers to 'the International Tribunal... and any other organization authorized by the UN Security Council with a mandate concerning human rights or humanitarian law'.

The International Tribunal at The Hague has only to send a junior official to Bosnia to request the assistance of IFOR in the apprehension of those indicted war criminals for whom arrest warrants have been issued, and IFOR will then have the full right, under Dayton, to take action to help fulfil the mission of that official.

IFOR's existing mandate thus covers the taking of active measures to arrest Karadzic and Mladic, not once, but twice over. For the Secretary-General of NATO to claim that IFOR would need a new mandate to do this is an extraordinary travesty of the truth.

Noel Malcolm