International Actors Performing Cooperation Obligations “on behalf” of the BiH Authorities

A considerable number of persons accused by the ICTY have been arrested and transferred at the request of the ICTY by the competent authorities in BiH since the beginning of the operations of the ICTY, while a couple of persons surrendered voluntarily. The circumstances of a couple of arrests involving international actors, such as SFOR, have resulted in challenges by the defence in hearings before the ICTY, arguing that the arrests took place in violation of generally accepted principles of international law and fundamental rights.²⁵¹⁸

Given the unique constitutional set up of Bosnia and Herzegovina under the Dayton Constitution, the obligation to cooperate must be seen in the context of the strong involvement of the international community. Realistically, with the respective Entities being unfriendly towards the idea of handing over suspects or accused persons from their respective ethnic group since the very beginning of the operation of the ICTY, SFOR – against its initial reluctance – and later EUFOR had to accept the responsibility to implement some of those obligations “on behalf” of the Bosnian authorities.²⁵¹⁹ Therefore, the obligation to cooperate has, to some extent – and not only in the beginning of the operation of the Tribunal – been executed by the actors of the international community, i.e., SFOR/EUFOR.²⁵²⁰