BOSNEWS Digest 421 -- 05/10/95

Bosnia-Herzegovina News Directory

From: Nermin Zukic <[email protected]>

On October 4, NATO warplanes fired anti-radar missiles at two Serbian missile batteries in northwest Bosnia and one near Sarajevo after the planes were targeted by Serbian radar. Russia promptly condemned the attacks, which NATO said were legitimate acts of self-defense.

Serbian forces reportedly continue to retake ground in western Bosnia near Kljuc, where the Bosnian Army uncovered mass graves apparently containing the remains of Muslims and Croats massacred by Serbian forces early in the war.

Fighting broke out on October 3 around Trnovo, twenty-two miles south of Sarajevo. U.N. officials report that Serbian forces initiated the fighting by firing on Bosnian Army positions. However, the United Nations and senior U.S. officials condemned the Bosnian Army for using four mortars inside the Sarajevo exlcusion zone to support its troops to the south.

The Croatian government and Serbian forces occupying eastern Slavonia agreed on October 3 to vague guidelines for further negotiations on the region's future. The guidelines call for a "transitiona period" for restoring Croatian sovereignty and control over the region. During this period, of unspecified duration, the U.N. Security Council would administer the region. International forces would be stationed in eastern Slavonia to maintain peace and enforce a final settlement. Zagreb had pledged to liberate the territory by force if Croatian sovereignty was not restored peaceably by the end of November.

Chief U.S. Negotiator Richard Holbrooke announced on October 4 that the Bosnian government had made a "serious cease-fire proposal," which he is now taking to Belgrade. Neither Holbrooke nor the Bosnian government provided details of the proposal. Holbrooke is seeking to build on the agreement reached on September 26 in New York between the Bosnian, Croatian, and Serbian foreign ministers on a set of general constitutional principles for a post-settlement Bosnia. Elements of the agreement include the "goal" of democratic elections, a new presidency, a new parliament, and a new constitutional court. One third of the seats in each would be reserved for representatives of a Serbian "entity." Delegates from the Serbian entity could veto any decisions in both the parliament and the presidency.

A last minute compromise at the United Nations on July 14 ended another close call for the Yugoslavia war crimes tribunal. For more than two years, the Tribunal was hostage to an arcane dispute over which of two accounts should be used to pay for it. The impasse had become so bad that, in April, UN officials issued ominous pronouncements about the Tribunal's future operations. On July 14, the permanent members of the Security Council reached agreement with the G-77 non-aligned countries on a 50/50 split of the cost. This surprising result took 26 months of tough negotiations.

The latest crisis arose over a dispute within the Fifth Committee of the General Assembly over whether the Tribunal should be funded out of the general UN budget or out of the peacekeeping budget. From the start of the Tribunal in May 1993 until recently, four of the permanent members of the Security Council - France, Russia, the United Kingdom and the United States - argued that the Tribunal should be funded out of the general UN budget. This is how the United Nations funds the International Court of Justice, which resolves disputes between governments. The Group of 77, the developing countries, argued that because the Security Council set up the Tribunal under the peacekeeping provisions of the UN Charter, the tribunals should be paid out of the peacekeeping budget.

While secondary to the more important question of the amount of the Tribunal's budget, that was settled in March, the consequences of this dispute were potentially serious. The United Nations could not formally approve the budget until there was agreement on which account should be used. At worst, without a formally approved budget the Tribunal could conceivably have had to shut-down . At best, the Tribunal would have had to operate hand-to-mouth, putting it at the mercy of UN accountants shuffling money from account to account to keep it going.

After a bitter disagreement on this issue in March of this year, signals began coming out of NewYork that the UN Controller's office was not enthusiastic about having to continue to shuffle money in this way. On April 7, the warnings became more serious. UN ControllerYukio Takasu (in UN doc. GA/AB/2999) warned the Fifth Committee that, by failing to agree on this issue, they had"created a precarious situation." The Tribunal's situation, he said,"could not be described as secure". He went on, "Should the Secreteary General (meaning, the UN Secretariat) be unable to carry out all mandated operations (meaning, should the Tribunal not be able to do what it is supposed to do), it would not be his responsibility." Takasu, using the diplomatic language required in UN documents, said, ominously, "Such a precarious financial and staffing situation could hamper its [the Tribunal's] functioning."

What were the stakes in this long-standing dispute? In dollar terms, the difference was petty. For the general UN budget, member states contribute at a "regular" rate roughly proportionate to their national wealth. The United States, as the wealthiest nation in the world, contributes 25%. France and Britain, fourth and sixth, respectively, contribute 6.32% and 5.27%. Less developed countries contribute less, 0.01%, of the general budget.

Peacekeeping, however, is controlled by the Security Council, so the five permanent members contribute a slightly greater share to the UN peacekeeping budget. For 1995, the United States, for example, contributes about 31%. France and Britain contribute about 8% and 6.7%. Less-developed countries contribute even less to thepeacekeeping budget than to the regular budget,about 0.001% of the total peacekeeping budget.

Thus, if the Tribunal were funded out of peacekeeping, the permanent members of the Security Council would pay a little more. Otherwise, if the tribunals are funded out of the general budget, other countries would pay a little more. Since the total budget for the Tribunal for -1995 is about $28.4 million this means that the amount in dispute for the United States was the difference between 31% and 25% of $28.4 rnillion, or about $1. 7 million. For France and Britain the difference was about $500,000 and $400,000 respectively. For many countries, the difference was $2,500.

For some countries, the dispute was a matter of pride. Security Council Resolution 827, which established the Tribunal, had said that the Tribunal's cost would be borne out of the general UN bud get. To countries that would have been resentful of the Security Council establishing on its own a new organ of the United Nations, this was simply too much.To many of the G-77 nations, the Security Council was trying to usurp the General Assembly's power over the UN budget. Moreover, by acting through the Security Council, the big powers had also effectively ensured that their nationals would never be tried by a similar international tribunal in the future - an immunity not available to countries lacking a veto in the Council.

As the impasse over the source of funding for the Tribunal dragged on into its third year, the Tribunal's supporters, most notably the United States, were becoming increasingly embarrassed.The G-77, led by India, Mexico and Brazil, took the position that the Tribunal should be financed 100% from the peacekeeping budget.The permanent members' position softened. After March's deadlock, the first offer on the table involved a 50/50 deal for 1995, so that half would come out of peacekeeping from unspent UNPROFOR funds, and the other half out of the general budget. Future years would revert to being paid 100% out of the general budget. This turned out to be unacceptable to the G-77.

In early July, a number of human rights groups and other non-governmental organisations (NGO's) began to pressure both sides towards a deal. Any deal, they argued, was better than none. In addition, they argued to the permanent members, the principle supposedly at stake in funding a UN organ like the Tribunal out of the general budget had to be balanced against the greater principles of justice and individual accountability represented by the Tribunal itself. Failure to agree on such a small issue would have been difficult for some countries to explain.

In the end, the deal ultimately struck in the 23rd hour was a compromise that may reflect the Tribunal's true role: half peacekeeping, half regular UN budget. To the peoples of the formerYugoslavia, the Tribunal is part of efforts to establish a long-term peace by breaking the cycle of violence. To the international community, the Tribunal is part of a longer-range effort to advance the rule of law by hold specific individuals, not just abstract political entities, accountable for crimes they have committed. This arrangement will be in effect through at least 1997.

India did get in one twist of the diplomatic knife against the United States: The Tribunal will appear as a separate budget category, meaning that the United States contribution for 1995 will not be paid until 1996, under a procedure adopted by the United States Congress years ago during an earlier period of budgetary displeasure at the United Nations.

The next budget crisis for the Tribunal is already on their horizon. In October, the Tribunal will need to submit a budget for the 1996-97 biennium that the United Nations uses for budgetary purposes. The Tribunal will need to request a significant increase in its present $28.4 million annual budget in order to be able to hold more trials and hearings with live witnesses. (Even if few defendants are apprehended, the Tribunal can still hold hearings under Rule 61 at which live witnesses may appear to give testimony.

After a Rule 61 hearing, the judges can issue international arrest warrants that effectively make the suspect subject to arrest if he so much as sets foot outside his home country so additional resources will be needed for bringing witness to The Hague, for mass grave exhumations, for witness protection, and for forensic services. For budgeting purposes, the Tribunal also needs to plan for a second courtroom sometime during 1996-97. Including both the Yugoslavia and Rwanda international Criminal tribunals the combined budget ought to be on the order of $100 million a year for the next two years.

To some in the United Nations, doubling the budget for the Tribunal will seem like a steep increase. However, one just has to think of the money that could be saved on the United Nations Protection Force (UNPROFOR).The budget for UNPROFOR for calendar 1995 was more than $1.67 billion.The new UN reaction force was anticipated to cost another $300 million for six months. To fund both the formerYugoslavia and Rwanda war crimes tribunals at a rate of$100 million a year would be the equivalent of what UNPROFOR spent in less than 20 days. It will take a considerable effort to mobilise international support for adequate funding for the Tribunal. Working in the Tribunal's favour, at least, is the fact that they know who the war criminals are.

Tom Warrick, a lawyer in Washington, is former senior counsel to the UN Commission of Experts

Vanessa Vasic-Janekovic <[email protected]>