^* Distinguished Research Professor of Law Emeritus and President Emeritus, International Human Rights Law Institute, DePaul University; President, International Institute of Higher Studies in Criminal Sciences; and Honorary President, International Association of Penal Law. Between 1992 and 1994 Prof. Bassiouni was a member and then chair of the Commission of Experts established pursuant to Security Council Resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia.

^* The third Prosecutor, Carla Del Ponte, has claimed that neither of her predecessors—Richard Goldstone and Louise Arbour—had filed an investigation on Milošević, and that the only thing she found in his files were the Final Report and Annexes of the Commission of Experts, and newspaper clippings about Milošević. DEL PONTE & SUDETIC, MADAME PROSECUTOR: CONFRONTATIONS WITH HUMANITY’S WORST CRIMINALS; personal communication with Carla Del Ponte, The Hague (late 1999 or early 2000); see also HAZAN, JUSTICE IN A TIME OF WAR 149 (Snyder trans.). Even on Williamson’s account, there was not much there before late 1998.

^† Mr. Eagleburger told the media that he had decided to “name names” after meeting with a Holocaust survivor who called for the punishment of war criminals so that these kinds of crimes would not continue to be carried out. SCHARF & SCHABAS, SLOBODAN MILOSEVIC ON TRIAL 25 (2002).

^* See generally Baumann, “From UNPROFOR to IFOR,” in ARMED PEACEKEEPERS IN BOSNIA 37ff. There were incidents of hostage-taking during the Bosnian war, but the most egregious example of how lightly armed peacekeepers became obstacles to resolute action—and levers for influence on policy—involves the Dutch forces guarding Srebrenica. See ROHDE, ENDGAME: BETRAYAL AND FALL OF SREBRENICA; Schröder, Dealing with Genocide: A Dutch Peacekeeper Remembers Srebrenica, SPIEGEL.DE, July 12, 2005. Richard Holbrooke expressed the view that “the British, the French, and the Dutch cut some kind of private deal, the details of which are not recorded, but which must have happened, that they would use their position within NATO to veto any air strikes until the Dutch troops were safely out of Srebrenica.” LEBOR, COMPLICITY WITH EVIL 234.

^† LEBOR, COMPLICITY WITH EVIL 32. A striking example is the history behind Resolution 836, which relied on a French memorandum to create the safe areas in Bosnia without providing for a robust protection mandate. London and Paris engaged in extensive lobbying efforts to persuade all members of the Security Council to vote for it. LEBOR, COMPLICITY 52–55.

^* Milošević displayed his awareness of the history of German interests in the Balkans in his opening defense statement, alleging Germany’s desire to destroy Yugoslavia and create a series of small satellite states in the region, which Germany could dominate. See MILOSEVIC & CLARK, THE DEFENSE SPEAKS: FOR HISTORY AND THE FUTURE 25–26, 40–44.

^† These included the Soros Foundation, the Open Society Fund, and the John D. and Catherine T. MacArthur Foundation. The original documentation center for evidence collected in the former Yugoslavia was located at DePaul University’s International Human Rights Law Institute. Eventually, a UN trust fund for the Commission was established by 13 countries in the amount of 1.3 million dollars. This allowed for exhumations, extensive interviewing, materials, and a forensics expert. See SCHARF, BALKAN JUSTICE 45–49.

^* The Commission officially began its work in November 1992, but little happened until April 1993 when the Commission began establishing contacts with authorities and obtaining information from the region. See Commission Final Report, Lists of Missions Undertaken by the Commission, U.N. Doc. S/1994/674/Add.2 (Vol. I), Annex I.B (Dec. 28, 1994), http://www.law.depaul.edu/centers_institutes/ihrli/downloads/Annex_IB.pdf.

^† For a general discussion of the military structures of the warring parties, see Commission Final Report, 110–28 & Annex III (The Military Structure, Strategy and Tactics of the Warring Factions); see also chapters by Prelec, Hartmann, and Nielsen on the links between Belgrade and the VRS.

^* The Final Report does not contain any direct evidence of orders from Milošević or direct information going to Milošević in relation to the shelling, and it is logically possible to explain the correlation by actions taken at the level of Pale, not Belgrade. However, the Report does analyze links from the Romanija Corps to the VJ, and as we will see in the Conclusion, it requires only the same JCE theory that the Prosecution later applied in the Bosnia phase to explain the relationship to Milošević. See Commission Final Report, 184–86; see also Pros. v. Galić(2), Judgment (5 Dec. 2003). Waters discusses the fate of the charges related to the shelling and sniping of Sarajevo, at 303-305.

^* Ralph Zacklin, a senior UN official of British nationality, was aware that Escovar could not take up his duties for at least several months, but had advised him to remain in the post without advertising the fact of his unavailabilty. Personal communications with Ramon Escovar Salmon and Boutros Boutros Gali, Geneva, early 1994. See also BASS, STAY THE HAND OF VENGEANCE 218–19 (giving an account of Escovar’s appointment and resignation).

^† I was also, at that time, a candidate for the position, having been nominated by Egypt and supported by Secretary General Boutros-Gali. See WILLIAMS & SCHARF, PEACE WITH JUSTICE 107 (discussing British objections to my candidacy based on my willingness to prosecute senior Serb leadership); see also BASSIOUNI, LAW OF THE ICTY.

^* The Prosecution’s willingness to indict Karadžić and Mladić—including for the siege of Sarajevo, which by this point was several years old—suggests either that it had finally built a case or, more plausibly, that, with the shift in NATO strategy, Goldstone now understood indictments were feasible and increasingly welcome. See Greenawalt at 380-383 advancing a similar interpretation.

^† The more outré speculation posits a much grander and more cynical deal, reached not at Dayton but early in 1995, in which the United States took a much more active role in managing the endgame of the wars: Serbia would abandon the RSK, and in exchange, the Bosnian Serbs would be allowed to consolidate the Drina corridor. There is, of course, no evidence of any such arrangement, but there is no reason to descend into conspiracy theories to observe how the logic of the U.S. strategy could achieve a similar outcome: After the fall of Srebrenica, the United States denounced the Bosnian Serb leadership but not Milošević. Even without an explicit guarantee, U.S. behavior was consistent with developing its strategy of relying on Milošević to deliver the Bosnian Serbs at the negotiations.

^* There is neither reason nor evidence to suppose that Arbour brought the indictment when she did at NATO’s behest or even in coordination with it, and in my own experience I found Arbour to exhibit the utmost integrity and professionalism. This does not mean, however, that NATO powers had no ability to influence, through punishment or reward, the work of the Tribunal. The indictment, which indirectly and retroactively justified NATO’s campaign, was issued at a time when Arbour—a senior Canadian judge—was rumored to be a potential appointee to the Canadian Supreme Court. We can only speculate on the outcome of that process if the Prosecution had not issued an indictment, or had even publicly entertained with any seriousness the calls of NATO’s critics to indict the alliance for its actions. In the event, however, Arbour was appointed to the Canadian Supreme Court a few months later. See SCHARF & SCHABAS, SLOBODAN MILOSEVIC ON TRIAL 103.

^* Del Ponte raised this point when pressed by reporters about the time it was taking to indict Milošević for crimes committed in Croatia and Bosnia—and that at a time when NATO was fully cooperating with the Tribunal. See HAGAN, JUSTICE IN THE BALKANS 222.

^* On the use of JCE in the actual trial, see Meierhenrich 321-323, Nielsen 335-338, Van der Wilt, Del Ponte 138-139, Prelec, Lamont 205-207, 211, and Boas 107-109.