Letter from President McDonald to the Peace Implementation Council.
Please find below the full text of a letter sent by President Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the former Yugoslavia, to the heads of government of the member States of the Steering Board of the Peace Implementation Council and to the High Representative on the eve of the Peace Implementation Council meeting in Madrid.
4 December 1998
As the 1998 plenary meeting of the Peace Implementation Council ("P.I.C.") approaches, I have the honour of appraising you of the continuing default by the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) ("F.R.Y.") of its obligations towards the International Tribunal under the General Framework Agreement for Peace in Bosnia and Herzegovina ("G.F.A.P."). I am writing to all of the heads of government of the member States of the Steering Board of the P.I.C. and to the High Representative to request that appropriate action be taken by the P.I.C. to ensure that the FRY meets those obligations.
The F.R.Y., as a signatory to the G.F.A.P., is bound to co-operate with the Tribunal pursuant to, inter alia, Article 9 of the Framework Agreement and Article 10 of Annex 1-A. These provisions reflect the legal character of the Tribunal. In resolution 827 the Security Council, establishing the Tribunal under Chapter Seven of the United Nations Charter, decided "that all States shall cooperate fully with the Tribunal and its organs." Moreover, in his report to the Security Council prior to the adoption of that resolution, the Secretary-General noted that Orders of the Tribunal have the status of actions under Chapter Seven.
The Tribunal indicted Mile Mrksic, Miroslav Radic and Veselin Sljivancanin on 7 November 1995, for the murder of 260 unarmed men following the fall of the city of Vukovar in November 1991. A warrant for their arrest was issued and transmitted to, inter alia, the F.R.Y., as the accused were believed to be residing on its territory. That warrant was not executed. On 3 April 1996, Trial Chamber I concluded that there were sufficient grounds for believing that the three accused committed the offences with which they were charged and certified that "the failure to effect service of the indictment was due to the refusal of the F.R.Y. to co-operate with the Tribunal." The Trial Chamber issued international arrest warrants against the three accused which were subsequently transmitted to all States and to the Implementation Force established under Annex 1-A of the G.F.A.P.
Mr. D’Alema, Prime Minister
My predecessor, President Cassese, on 24 April 1996 reported to the Security Council the refusal of the F.R.Y. to arrest the three men. On 8 May 1996, the President of the Security Council reminded the F.R.Y. of those obligations, "deplor[ed the] failure…to execute the arrest warrants" and called for the immediate execution of the warrants. He further stated that the Security Council would remain seized of the matter.
Since that date, the three individuals have remained at liberty, alleged to be residing in Serbia. Indeed, the authorities of the F.R.Y. have not refuted such allegations. The Office of the Prosecutor of the Tribunal has repeatedly demanded the arrest of the accused. On 19 December 1997, following a request from the Prosecutor, Trial Chamber II ordered the authorities to serve the accused with the Indictment and various other documents and to notify the Registrar of the Tribunal of the whereabouts of the accused. On the same day, Trial Chamber II requested the authorities to ensure the publication in the F.R.Y. of a notice to the accused to surrender immediately to the Tribunal.
The persistent and continuing rejection of orders to arrest Mile Mrksic, Miroslav Radic and Veselin Sljivancanin is but the most blatant example of the refusal of the F.R.Y. to co-operate with the Tribunal. Such intransigence has formed a consistent pattern since the Tribunal was established on 27 May 1993. Notable in this regard is failure to take measures necessary under domestic law to implement the provisions of resolution 827 and the Statute of the Tribunal, as required by paragraph 4 of the resolution. Indeed, the F.R.Y. remains the only signatory to the G.F.A.P. that has neither adopted legislation to facilitate co-operation with the Tribunal, nor taken steps to transfer to the Tribunal’s custody those indictees on its territory.
Thus, on 9 September this year, I wrote to the Security Council and subsequently briefed its members on the continuing refusal of the F.R.Y. to arrest the three indicted individuals. Since then, the F.R.Y.’s non-co-operation has become obstructionism. On 5 November of this year, it informed the Prosecutor that "the Federal Republic of Yugoslavia does not accept any investigation of ICTY [sic] in Kosovo and Metohija generally", a position that is in blatant violation of Security Council resolutions 1160, 1199 and 1203 on the situation in Kosovo. Therefore, by letters of 22 October and 6 November, I requested the Security Council to take such action as is necessary to ensure that the F.R.Y.’s illegal conduct is brought to an end.
On 17 November, the Security Council adopted resolution 1207, demanding the immediate and unconditional arrest and transfer to the custody of the Tribunal of Mile Mrksic, Miroslav Radic and Veselin Sljivancanin. It also called again upon the F.R.Y. to cooperate fully with the Prosecutor in the investigation of events in Kosovo.
The obligation to co-operate with the Tribunal is absolutely clear. It is unambiguous and incontrovertible, expressed in numerous Security Council resolutions and in the text of the G.F.A.P. The F.R.Y., in defying the law and the will of the international community, has demonstrated contempt for the international rule of law. It has been allowed to do so with near-total impunity for three years. Thus, not only does the F.R.Y. consider itself to be outside international law, it has become a haven for fugitives from international law.
Such conduct prevents the Tribunal from effectively discharging its mandate. This persistent illegal action is, therefore, a direct affront to the authority of the Security Council, as the body that created and empowered the Tribunal, and to the P.I.C., as the body charged with overseeing the implementation of the G.F.A.P.
The F.R.Y. has singularly failed to honour its commitments under the G.F.A.P. While five indictees have surrendered to the Tribunal from the territory of the Republika Srpska, the F.R.Y. has failed to take action to effect compliance from the Republika Srpska with respect to the other indictees on its territory, as it is required to do in its capacity of guarantor of the Republika Srpska’s obligations under the G.F.A.P. Moreover, its reprehensible conduct is affecting the peace process within Bosnia and Herzegovina. Recently, forces within the Republika Srpska have again challenged the legitimacy of the Tribunal and the obligation to transfer indictees, while the High Representative’s September report to the P.I.C., notes that the FRY has created conditions that have strained the weak infrastructure and limited resources of Bosnia and Herzegovina. Finally, the population of the F.R.Y. is being stigmatised by the policies of its Government and is suffering acute hardship as a direct result of those policies.
I, therefore, appeal to you to ensure that the P.I.C. uses the opportunity of the Madrid summit to compel the F.R.Y. to obey international law and to meet its commitments, both to the Tribunal and to the Council. All States must respect and ensure respect for their international obligations. In an era characterised by an increased emphasis on the human rights of individuals, the F.R.Y.’s continued obduracy jeopardises all efforts to bring peace to the peoples of the former Yugoslavia.
Accept, Excellency, the assurances of my highest consideration.
Gabrielle Kirk McDonald
cc: Heads of Government of the Member States of the Steering Board
His Excellency King Juan Carlos of Spain
His Excellency Jose Maria Aznar-Lopez, Prime Minister of Spain
His Excellency Juan Abel Matutes, Minster of Foreign Affairs of Spain
The High Representative