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The Tribunal for the Former Yugoslavia seeks the assistance of the Security Council.
"It is imperative that the reprehensible conduct of the F.R.Y. in violating the United Nations Charter, resolutions of the Security Council and the Dayton Agreement, should no longer be tolerated"
"Any further tolerance of the FRY’s default is inconsistent with the desire to see the Tribunal play its full role in Kosovo"
In the wake of recent initiatives by the Security Council to uphold international criminal law and in the light of its resolution (1160) urging the Office of the Prosecutor to investigate violations of humanitarian law being committed in the province of Kosovo, the International Criminal Tribunal for the former Yugoslavia (ICTY) has decided to bring to the attention of the Security Council "the continuing refusal of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) (F.R.Y.) to co-operate with the International Tribunal".
On Tuesday 8 September 1998, the President of the ICTY, Judge Gabrielle Kirk McDonald, sent to the Security Council a three-page long letter, following a request by the Prosecutor, Justice Louise Arbour, on 1 September, "to seize the Security Council of the urgent need to impress upon the FRY the need to honour its pledges under the Dayton Agreement and its obligations under Security Council resolutions and under international law".
The "illegal conduct" of the FRY
The failure by the Government of the FRY to arrest and transfer to the custody of the International Tribunal, Mile Mrksic, Miroslav Radic and Veselin Slijvancanin, indicted since November 1995 for their alleged involvement in the killing of unarmed men forcibly removed from the Vukovar Hospital, is at the basis of the seizure of the Security Council.
In her request to the President, the Prosecutor wrote that "for many months, but particularly since the unfortunate death of Slavko Dokmanovic, I have been concerned about the need to bring the three remaining accused in the Vukovar Hospital case to justice. The three are believed to be residing in Serbia (…)". In spite of the issuance of international arrest warrants and of the report to the Security Council by the former President of the default of the FRY, "no action was taken by the Security Council beyond, I believe, the issuance of a presidential statement".
President McDonald, in her letter, explicitly refers to this presidential statement of 8 May 1996: "the President of the Security Council (…) stated that the Security Council would remain seized of the matter". After outlining the various steps taken since then by the Tribunal itself, the President then states: The persistent and continuing rejection of orders to arrest Mile Mrksic, Miroslav Radic and Veselin Slijvancanin is but the most blatant example of the refusal of the F.R.Y. to co-operate with the International Tribunal. Such intransigence has formed a consistent pattern since the International Tribunal was established by the Security Council in resolution 827 of 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 International Tribunal, as required by paragraph 4 of the resolution. Indeed, the F.R.Y. remains the only signatory to the Dayton Agreement that has neither adopted legislation to facilitate co-operation with the International Tribunal, nor taken steps to transfer to the International Tribunal’s custody those indictees on its territory. Put simply, such conduct is illegal (…)"
"The FRY has become a haven for fugitives from international law"
The ICTY is a subsidiary organ of the Security Council and, as recalled by the Prosecutor in her letter to the President, "it is entitled by law to turn to the Council for support in enforcement of its order". Upon receiving this letter, the President turned to Judge Claude Jorda, the Presiding Judge of the Trial Chamber which dealt in 1996 with the Vukovar Hospital case, who in his turn, requested her to report to the Security Council.
President McDonald writes that the continuing refusal of the FRY to co-operate with the ICTY displays "a contempt for the authority of the Security Council [which] should not be countenanced (…): not only does the F.R.Y. consider itself to be outside international law, it has become a haven for fugitives from international law".
International law must be upheld
The ICTY also urges that the Security Council, on which it is dependant to ensure the F.R.Y.’s compliance, takes action to remedy the illegal conduct of the F.R.Y. in the wake of "recent measures by the Security Council [which] have demonstrated its commitment to upholding international law".
The Prosecutor noted that recently "the Security Council unanimously approved a resolution that called Libya to honour its pledges with respect to the transfer for trial of the two suspects in the Lockerbie bombing case. (…) This resolution stands in stark contrast with the lack of action by the Council regarding the [Vukovar] case which offers much similarity to the Lockerbie case".
In her letter to the Security Council, the President refers to "the adoption in July of a treaty establishing a permanent International criminal Court" which she describes as "a further indication that the international community is committed to the principle of accountability for those who violate the law of nations".
Investigations regarding Kosovo threatened to become meaningless
Another major concern which inspired both the Prosecutor’s and the President’s letters is the impact of further tolerance of the F.R.Y’s default on the investigations being conducted by the Office of the Prosecutor into the events in Kosovo.
As President McDonald points out: "The three individuals from the F.R.Y. who have been charged with serious violations of international humanitarian law have not been arrested almost three years after the issuance of arrest warrants. They have enjoyed impunity and immunity. The lesson of this is not that individuals will be held accountable, but that, through the illegal actions of their Governments, they may be shielded from the international legal process to which all States are bound".
It is at the extreme opposite of the only right message, namely that persons indicted by the ICTY will be brought to justice. As Justice Arbour says: "The present tolerance of the default by the FRY to arrest indictees on its territory is inconsistent with the expressed desire to see the Tribunal play its full role as an instrument of international peace and security, in particular in Kosovo".
International Criminal Tribunal for the former Yugoslavia
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