|(Exclusively for the use of the media. Not an official document)||
The Hague, 25 August 1999
The President Of The International Tribunal Reports To The Security Council
And Requests That "Sufficiently Compelling Measures" Be Taken
However the President declined to find Croatia in non-compliance on one of the three grounds submitted by the Prosecutor
Today, Wednesday 25 August 1999, Judge Gabrielle Kirk McDonald, the President of the International Criminal Tribunal for the former Yugoslavia (ICTY), reported to the Security Council "the refusal of the Republic of Croatia to cooperate with the International Tribunal". She requested "the Security Council to take measures that are sufficiently compelling to bring the Republic of Croatia into compliance with its obligation under international law".
The letter from President McDonald follows a Request by the Prosecutor that Croatia be found in breach of its obligation to cooperate with the International Tribunal and that it be reported to the Security Council (see Press Releases 420 and 423, of 20 and 28 July 1999 respectively). President McDonald also wrote separately to Justice Louise Arbour, the Prosecutor of the ICTY, to explain her findings.
OPERATIONS ‘STORM’ AND ‘FLASH’
The Prosecutor’s Request related to the refusal of the Republic of Croatia to accept the Tribunal’s jurisdiction over crimes allegedly committed during and in the aftermath of "Operation Storm" and "Operation Flash", and its subsequent refusal to provide the Prosecutor with information in relation to these operations.
In her letter to Justice Arbour, President McDonald noted that, while it was not for the President, but for a Trial Chamber to arbiter a dispute on the Tribunal’s jurisdiction, she considered that "the Statute [of the Tribunal] and Rules of Procedure and Evidence clearly do not permit a State to thwart the conduct of an investigation by simply asserting that the Tribunal has no jurisdiction".
The President accordingly found the Republic of Croatia in breach of its obligation to cooperate with the Tribunal in its investigations and prosecutions, under Article 18(2) and 29(1) of the Statute.
THE "TUTA" CASE
The Prosecutor’s Request also related to the failure of the Republic of Croatia to surrender and transfer two individuals indicted by the ICTY who were being held in the custody of the Croatian authorities, namely Vinko Martinovic (also known as "Stela") and Mladen Naletelic (also known as "Tuta") …/...
Vinko Martinovic was surrendered to the Tribunal on 9 August 1999 (see Press Release 427) and so in her letter to the Prosecutor the President states that, "with respect to this accused, the Republic of Croatia is now in compliance with its obligations under Article 29 (2)(e)" which "requires States to comply without undue delay with any request for assistance for the surrender or the transfer of an accused to the Tribunal".
However, the Croatian authorities have not yet transferred Mladen Naletelic, "notwithstanding the fact that he is in their custody". The President accordingly found that the Republic of Croatia "is in non-compliance with its obligation pursuant to Article 29".
THE OUTSTANDING REQUESTS FOR ASSISTANCE
The Prosecutor’s Request raised a third matter, namely the fact that Croatia had failed to respond to 13 outstanding requests for assistance of various kinds.
However, the President declined at this stage "to make a finding that the Republic of Croatia is non-compliance with its obligation to provide evidence and information to the Tribunal". The President instead invited the Prosecutor to first seek a "binding order" from a Judge. This procedure would permit Croatia to assert its "national security" claims, and would allow a Judge to compare the many requests made by the Prosecutor before other Chambers and the action taken regarding such requests.
The President recalled that reporting a State to the Security Council is an action of last-resort that should only be used when the cooperative process has been fully exhausted.
International Criminal Tribunal for the former Yugoslavia
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