Judge Gabrielle Kirk Mcdonald, President of the International Criminal Tribunal for the Former Yugoslavia addresses the United Nations Security Council.
Please find below the full text of Judge Gabrielle Kirk McDonald’ s comments to the United Nations Security Council on 8 December 1998.
Mr. President, Members of the Security Council
Thank you for inviting me to inform the Security Council about the implementation of Security Council resolution 1207 (17 November 1998) for the Council’s further consideration.
That resolution stated, inter alia, that the Security Council demands the "immediate and unconditional execution of those arrest warrants … [against the three individuals referred to in my letter of 8 September 1998 to the Security Council reporting the non-compliance of the Federal Republic of Yugoslavia to the Security Council], including the transfer to the custody of the Tribunal of those individuals."
That resolution also called upon the authorities of the Federal Republic of Yugoslavia and the leaders of the Kosovo Albanian community to cooperate fully with the Prosecutor in the investigation of all possible violations within the jurisdiction of the Tribunal.
I am here to inform you that the Federal Republic of Yugoslavia has not complied with Security Council resolution 1207.
With respect to the matter relating to access by the Office of the Prosecutor to Kosovo in order to conduct investigations, as urged by the Security Council in resolution 1160 (1998), the Federal Republic of Yugoslavia has continued to deny visas to the Prosecutor’s investigators in contravention to that and other Security Council resolutions (1199 and 1203). I reported that non-compliance in my letter of 6 November 1998, to the President of the Security Council. On 24 November 1998, the Registrar of the Tribunal dispatched a letter to the Ambassador of the Federal Republic of Yugoslavia in The Hague requesting his "most urgent attention" to this matter. This letter specifically referred to 14 members of the Office of the Prosecutor who requested visas four or more weeks ago and which have not been acted upon. The usual time for response is two or perhaps three weeks. She also noted that two Tribunal officials who had requested visas valid for a six-month period were given seven-day visas instead. The Ambassador has failed to respond to her requests for a meeting with him. No visas have been issued. The Prosecutor sent a letter to the President of the Security Council dated 25 November 1998 detailing the facts relating to that denial to respond to a statement by the Federal Ministry of Justice of the Federal Republic of Yugoslavia dated 10 November 1998, distributed during the current session of the General Assembly.
The Federal Republic of Yugoslavia is also in non-compliance with its obligations under international law, the UN Charter, Security Council resolution 827 establishing the Tribunal, and most recently, Security Council resolution 1207, by failing to execute arrest warrants on the three individuals referred to in my letter of 8 September 1998 to the President of the Security Council. Now, however, the Federal Republic of Yugoslavia has not only failed to execute the arrest warrants, it has boldly refused to do so.
In a letter of 18 November 1998 to the Tribunal, the President of the Military Court in Belgrade advised that it intended to conduct certain "investigative proceedings … in connection with the criminal offence of war crimes against prisoners of war … committed in the Vukovar hospital in November 1991 after a large number of members of the paramilitary formations of the Republic of Croatia were taken prisoner." Further, it was stated in the letter that "since in the course of the investigation this Court is also going to hear the testimonies of " [the three individuals named in the arrest warrants of the Tribunal], it wished a copy of the criminal case file and evidence which formed the basis of the indictment issued against these individuals by the Prosecutor of the Tribunal. It was requested that all available evidence be forwarded by 17 December 1998, because these individuals are scheduled to testify on that day.
Thus, not only is the Federal Republic of Yugoslavia failing to abide by the explicit requirements of Security Council resolution 1207, it is taking action in direct contravention to that resolution.
On 3 December 1998, the Prosecutor filed a Proposal for a Formal Request To the Federal Republic of Yugoslavia for Deferral of its Investigations and Court Proceedings. This was submitted to the Trial Chamber pursuant to Article 9(2) of the Statute of the Tribunal and Rule 9 of the Rules of Procedure and Evidence of the Tribunal.
Article 9(2) provides that:
"The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal."
Rule 9 provides that:
"Where it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in the courts of any State:
(i)the act being investigated or which is the subject of those proceedings is characterized as a ordinary crime;
(ii)there is a lack of impartiality or independence, or investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; or
(iii)what is in issue is closely related to, or otherwise involves, significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal,
the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made that such court defer to the competence of the Tribunal."
Together these provisions set forth the primacy of the Tribunal over national courts which is founded on the establishment of the Tribunal by the Security Council acting pursuant to its Chapter VII authority. That primacy cannot be circumvented. A Trial Chamber is conducting a hearing on this matter on Wednesday, 9 December 1998. A decision is expected shortly.
As I did in my address of 2 October 1998, I ask the Security Council to adopt effective measures to ensure there is immediate compliance by the Federal Republic of Yugoslavia with its obligations under international law and those imposed by this body, acting pursuant to its Chapter VII authority.
The Federal Republic of Yugoslavia is unabashedly obstructing the explicit directives of the Security Council. The UN Charter entrusts the Security Council with the primary authority for determining when a matter constitutes a threat to international peace and security and determining the appropriate measure to respond to that threat. You established the Tribunal expecting it would help to bring about and maintain international peace and security in the former Yugoslavia. We at the Tribunal strive earnestly to meet your expectations. Although the Tribunal is independent it is absolutely dependent upon you for the enforcement of the matters I bring to you today. I now turn to you, once again, for without your support it cannot discharge that mandate.
Not only does the Tribunal depend upon you, all member States look to you for the exercise of your Chapter VII authority which they ceded to you with adoption of the UN Charter. We are in your hands. Once again I implore you not to let one State stand in the way of peace. We have come a long way since 1993, but we are at a critical juncture. It is your authority and your will which is being tested by Federal Republic of Yugoslavia.
I urge you not to allow the Federal Republic of Yugoslavia’s obstructionism to go unchecked for it sets a dangerous precedent, one which even transcends its non-compliance. Please show the international community that you meant what you stated when you created the Tribunal.
Thank you for allowing me the opportunity to once again speak with you about this matter.