The application of so-called "freezing of assets" measures to those aiding indicted war criminals regularly sparks public debates on possible human rights violations caused by implementing international obligations of the state. In its report “Targeting Fugitives' Family Finances”, Justice Report cites various opinions on whether this type of
pressure can produce ultimate results – the apprehension of those indicted for the most serious war crimes in BiH,
or whether it is merely an unlawful act against those who are not themselves indicted, but are only relatives of the indicted. It is interesting that debates arise mostly when the state, in fulfilling some of its obligations or in
implementing the law, undertakes measures that are considered unlawful, unjustified or human rights violations according to the personal criteria of various individuals (see the article by E. Bičakčić). In essence, this is a superficial and affected conflict between the implementation of state obligations and the protection of human rights, usually aimed at politicising every question by invoking human rights. What is overlooked is that in terms of protecting human rights, the state has dual obligations: negative – not to interfere in the enjoyment of rights, except in certain cases and under certain conditions, and positive – to undertake steps and measures for the preservation of human rights. The latter entails not only measures to ensure that state bodies do not violate human rights, but also measures to ensure that these rights are not violated by other individuals. The measures can be legal in nature, that is, a means for the state to impose sanctions for certain types of behaviour. However, they can also entail certain practical steps such as the obligation of prison authorities to undertake measures to prevent inmate suicide, for example. To sum up, negative obligations require that the state not interfere, while positive obligations require an active approach, or an intervention.

The “freezing of assets” is certainly a measure that can be classified among the positive obligations of the state to secure efficient due process of indicted war criminals. In order to determine whether such measures are contrary to the concurrent negative obligation of non-interference of the state in the enjoyment of human rights, we must start with examining the legal basis for initiating such measures that will lead us to a fundamental analysis of the rights that may be violated by these measures.

Basis in International Law

The precondition for the successful realisation of the goals of the International Criminal Tribunal for the Former
Yugoslavia (the ICTY) cited by the UN Resolution 1503 (2003) is full cooperation of all states especially in prehending persons indicted for war crimes that are still at large. This Resolution also calls on all states, and
especially “Serbia and Montenegro, Croatia and Bosnia and Herzegovina, and on the Republika Srpska within Bosnia and Herzegovina” to, inter alia, “intensify cooperation with and render all necessary assistance to the ICTY, particularly to bring Radovan Karadzic and Ratko Mladic, as well as Ante Gotovina and all other indictees to the ICTY.”

In order to augment the measures recommended by this Resolution, the Council of the European Union (the EU Council) passed Decision No. 2004/694/CFSP on 11 October 2004 (the Decision) to freeze all “funds and economic resources” belonging to persons listed in the Decision Annex who were indicted for war crimes by the ICTY. In explaining this Decision, the EU Council stated its belief that such a measure is appropriate to the implementation of the UN Resolution 1503(2003) and that it is part of the overall EU strategy in preventing assistance to Radovan Karadžić, Ratko Mladić and Ante Gotovina, and in facilitating their surrender to the ICTY. Also, in Article 3 of the Decision, the EU Council “strongly encourages third states” to adopt similar restrictive measures in order to “maximise the effect” of measures imposed by the Council.

Based on these international documents, the then Serbia and Montenegro adopted a Law on the freezing of assets of Hague fugitives in 2006, while Croatia did not pass any such law, but did apply provisions of the Law on International Restrictive Measures, which had been passed earlier for the purposes of countering terrorism, to Ante Gotovina.

BiH Laws

In March 2006, a Law was passed in Bosnia and Herzegovina on the application of certain interim measures for the efficient implementation of the mandate of the International Criminal Tribunal for the Former Yugoslavia, and other restrictive measures. The implementation of the UN Resolution 1503(2003) and the EU Council Decision were cited as goals of this Law. Among other things, this Law regulates the introduction and application of certain interim measures for temporary prevention of use, dispossession and disablement of disposing with property to ICTY war crimes indictees that are at large, as well as those suspected of aiding them.
The Law on the Application of Restrictive Measures stipulates a type of temporary financial measures to be imposed and that the application of these measures entails freezing the funds and economic resources belonging or owned by persons against whom the measures are implemented; the funds and resources cannot be made available, either directly or indirectly, on behalf or to the benefit of the person against whom the measure is imposed, and activities aimed at directly or indirectly, consciously or unconsciously avoiding these measures are also prohibited.

The Law on the Application of Restrictive Measures stipulates a different procedure for implementing restrictive measures towards indictees at large as opposed to those aiding them. The temporary measures of freezing the funds and economic resources of ICTY indictees at large are applied against those on the list determined by the UN or the EU, including all amendments and changes to that list. The decision to introduce interim measures is passed by the Council of Ministers of BiH, and can be contested before the Court of BiH. Although it is not explicitly stated, it is obvious that in such cases administrative proceedings would be initiated in line with the Law on Administrative Disputes of BiH.
As for those aiding the indictees, the Law on the Application of Restrictive Measures foresees that the main
prosecutor will act in accordance with the relevant provisions of the Criminal Proceedings Code of BiH (CPC BiH)

What is important is that the Law on the Application of Restrictive Measures defines an abettor as “every physical or legal person suspected of aiding the indictee,” and goes on to exhaustively enumerate all such persons. As a lex specialis, this Law instructs the application of relevant provisions of CPC BiH, which is the only possible solution in cases of abettors. Namely, it is quite clear that members of the indictee’s family and other abettors will not be suspected of the crimes held against the indictee at large, nor is the fact that the indictee is a fugitive crucial; what is crucial is the intent to cut off the indictee’s resources that enable him/her to evade the ICTY.

According to this law, the act of freezing the assets of abettors resides with the main prosecutor of BiH who, by applying relevant provisions of the CPC BIH, can ask the Court of BiH to determine and implement these measures.

Furthermore, the Law on the Application of Restrictive Measures foresees “exceptions for living expenses” and stipulates that the Court of BiH will sanction the release of individual frozen funds or economic resources, or will make such resources available, if it is shown that the resources are needed to sustain basic living expenses, including the expenses of food, board, rent, mortgage, medicine and medical treatment, taxes and insurance, and expenses related to public utilities. Also, the Court of BiH can sanction the release of individual frozen funds or economic resources if it is shown that they are intended for the payment of legal fees, for regular maintenance of frozen funds or economic resources, or for unexpected costs. In deciding on these matters, the Court of BiH can determine the conditions under which it sanctions the release or availability of frozen funds or economic resources.
It informs the Ministry of Security of its decision, which then informs the authorised bodies of international
organisations and states that apply the same restrictive measures against the same persons. Also, the Law in Article 9 foresees exceptions for certain obligations in accordance with the exceptions foreseen in the EU Decision.
The measures at stake are temporary in character, and the decision about their termination as per the indictee is made by the Council of Ministers of BiH, while the decision on the termination of measures against abettors is made in accordance with the CPC BiH.
It can, therefore, be said that there is a legal basis in both international law and the legal regulations of BiH
for prescribing restrictive measures against indictees at large and their abettors. There is also a legally
determined procedure for the imposition and termination of these restrictive measures both against the indictee at large and against the abettors, where both laws provide adequate judicial protection for the person against whom the restrictive measures are implemented.

Protection of Human Rights

The controversial issue is whether international regulations and domestic laws violate the human rights of those aiding at-large indictees. Although it has already been demonstrated that there is a legal basis for undertaking these measures, this does not mean that such a legal framework excludes the possibility of human rights violations when it comes to the abettors of at-large indictees. Namely, there have been cases when it was possible to determine that inadequate laws enabled violations of fundamental human rights and freedoms (see for example the text by V. Galić).
In discussing these issues, general statements are made to the effect that the application of restrictive measures against the families of war crimes indictees at large “will be in violation of their human rights”, without specifying which rights this may concern. Since the issue at stake is the possibility of freezing funds and economic resources, we could assume that these claims pertain to the right to own property.

The right to own property is a basic right for which the European Convention, nevertheless, foresees a possibility of legitimate state interference, or forms of restriction. According to Article 1. of Protocol No. 1 to the European Convention, the state can interfere with this right in two ways: first, it can deprive a person of property “in the public interest and subject to the conditions provided for by law and by the general principles of international law,” and second, the state can “enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
According to this Article, the State enjoys a higher degree of freedom to judge than is foreseen in the other articles of the European Convention that allow for restriction of certain human rights and freedoms, but only if
such restrictions are “necessary in a democratic society” (e.g. the right to respect for private and family life, freedom of expression, etc.)

The previously discussed Law on the Application of Restrictive Measures does not provide for the impounding of properties belonging either to the indictees at large or their abettors. On the contrary, interim measures of
prevention of access to funds and economic resources are prescribed against such persons until legally defined conditions are met for those interim measures to be terminated. So, in this concrete case, the Law on the
Application of Restrictive Measures does not pertain to depriving these persons of their funds and economic
resources, but imposes a temporary control over the use of such assets. In order to assess whether the right to owning property has been infringed, we muse determine whether this interference is justified, i.e. a) whether it is foreseen by law, (b) whether it has a legitimate aim in the public or general interest, and (c) whether it is in line with the principle of proportionality. Also, these requirements must be fulfilled cumulatively.
The first requirement has been fulfilled because a law was passed to regulate the possibility of temporary control of assets. The aim of this Law, as stated previously, is the fulfilment of international obligations of BiH as per the UN Resolution 1503(2003), the EU Council Decision, and all in the interest of the efficient implementation of ICTY’s mandate. Fulfilling international obligations and surrendering war crimes indictees to the ICTY can certainly be considered a legitimate aim of any state, which brings us to the conclusion that the second requirement of a legitimate aim for the introduction of such measures has been met.

There is still the question of whether the means – the imposition of interim measures prohibiting the use of funds and economic resources – is proportional to the stated aim. A number of things are crucial in this respect. First, the Law on the Application of Restrictive Measures foresees temporary prohibition of disposal of funds and economic resources until the legally defined conditions for the termination of such measures are met, as well as a clear procedure for imposing temporary restrictive measures against both the indictee and his/her abettors. Apart from that, court protection is foreseen in both cases: for the indictee at large an administrative dispute before the Court of BiH, and for an abettor the appropriate legal remedies as per the CPC BiH. It can therefore be concluded that sufficient guarantees for protection against arbitrary application of these measures, in other words state autocracy, have been secured.

In terms of the proportionality requirement, it is also very important that the Law on the Application of Restrictive Measures foresees exceptions when it comes to living expenses and some other obligations exhaustively listed in the Law. This implies that the legislator took care to make sure that the measures are only imposed to the degree necessary for the achievement of the legitimate aim, i.e. bringing those indicted for the most serious war crimes who are at large to justice, and disabling their abettors from continuing to aid and conceal them.

The obligation to efficiently investigate and bring to justice those who commit a criminal act is a positive obligation of each Council of Europe member state directly derived from Articles 2 through 4 of the European
Convention. This obligation is not applied only in matters when situations can be ascribed to state authorities, but also in cases when breaches of these provisions originate from individuals. Such investigations must lead not only to identification, but also to the sanctioning of those responsible, that is, they must be effective.

When it comes to the war crimes under the jurisdiction of the ICTY, this positive obligation is still valid, because there is a general obligation of states to cooperate with the ICTY for the purpose of bringing war crimes indictees before the Tribunal, which, among other things, facilitates the upholding of human rights for the victims of war crimes.

Practice

Evidently, there is a clear legal framework in which concurrent positive and negative obligations of the state as per the protection of human rights are not in collusion. This resolves the artificial dilemma from the beginning of this analysis about whether such measures violate the human rights of those against whom they are applied. However, the story does not end there. Namely, even though SIPA claims that it regularly informs the Prosecutor’s Office of BiH about possible abettors to war crimes indictees at large (SAN, 5 November 2007), and even though a special team has been formed headed by one of the state prosecutors, there have been no results so far. Despite its distinctively named agencies (SIPA, OSA, etc.) and despite regulations and expert teams, BiH still cannot boast of full cooperation with the ICTY, that is, it cannot boast of undertaking all the effective measures in its power for the purpose of bringing war crimes indictees before justice. This is precisely why claims that some of the active abettors work at government institutions crop up, and that it is unrealistic to expect them to implement these measures (Nezavisne novine, 1 February 2007).

On the other hand, Croatia has frozen the assets of Ante Gotovina, apprehended him and surrendered him to the ICTY, which significantly lessened the pressure of the EU and negotiations on accession were continued. Before passing a law on the freezing of assets, Serbia passed a decision on the freezing of financial transactions for the bank accounts of thirteen war crimes indictees sought by the ICTY, which brought about a continuation of accession processes resulting in the signing of the agreement with the EU. Unless BiH undertakes effective steps towards the implementation of its international obligations, this will be the last drop in the glass of failure to fulfil EU accession criteria, as well as being unacceptable because it ignores the right of victims to moral satisfaction by bringing before justice those responsible for war crimes. In that respect, we should not forget that what is at stake in BiH is more than international legal obligations and pragmatic political requirements. The efficient implementation of the foreseen measures will not only fulfil international obligations, but it will go a long way to fulfil the obligation of BiH towards the victims of war crimes.