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ICTY Weekly Press Briefing - 28th Jul 1999

ICTY Press Conference - 28 July 1999

note that this is not a verbatim transcript of the Press Conference. It is merely
a summary.

ICTY Press

Date: 28 July 1999

Time: 13:00 p.m.

Justice Louise
Arbour, the Chief Prosecutor of the International Criminal Tribunal for the
former Yugoslavia (ICTY), made the following statement:

On 19 July 1999,
she had meetings in Zagreb with Croatian Minister of Justice Separovic and Foreign
Minister Granic. The main object of the discussions was her concern over the
level of cooperation her office had been receiving from the Croatian Authorities.
The Prosecutor drew attention to a long list of requests for assistance that
had remained unanswered. She went on to say that for some considerable time
the Croatian authorities had not been discharging their obligations to assist
the Tribunal in a satisfactory manner and she explained that she had now no
choice other than to request the President of the Tribunal to report the situation
to the Security Council.

The Prosecutor
said that on 22 June 1999, she had presented Croatia with a consolidated request
representing many outstanding inquiries going back to 1996, some of which had
been renewed on many occasions. She had requested an answer within three weeks
of 22 June 1999, she said, and had been informed when she was in Zagreb 10 days
ago that it might be a few months until the Tribunal was provided with some
answers. She was informed that other answers would not be provided because they
related to ‘Operation Storm’ or because they involved matters of national
security, or that they would be offensive to the dignity of the Croatian people,
or that they would require turning over all of Croatia’s military archives.

The Prosecutor
continued by saying that she had today (28 July 1999) filed a request with the
President of the Tribunal, Judge Gabrielle Kirk McDonald, asking her to report
Croatia’s non-cooperation to the Security Council. Two weeks ago she had
met with Croatian Government Ministers and had informed them that she would
be prepared to withdraw from today’s initiative if they urgently responded
to all the outstanding requests. She considered it fair to give the Government
notice of her intention, and she said that she had a meeting yesterday with
the Croatian Ambassador who was again informed that she would be prepared to
withdraw from the initiative if compliance with the requests made were forthcoming.

For the time being,
she continued, she had filed with the Registry her request to the President
under Rule 7bis of the Rules of Procedure and Evidence. This had one
precedent, which was the request to the President to report the Federal Republic
of Yugoslavia (FRY) on its failure to permit the Prosecutor access to Kosovo.
That first request related to the non-compliance of a state with the Prosecutor’s
Investigations. The FRY had refused to allow on-site investigations; Croatia
is not cooperating with investigations in other ways, but both requests by the
Prosecutor to the President are of the same procedural nature. Her request to
the President was non-compliance with respect to her entitlement to investigate,
including her right to carry out on-site investigation and to receive cooperation
from the member state in that respect. Today’s request was of the same
procedural nature and would now be for the President to handle.

The Prosecutor
then read out the concluding paragraph of her request:

Croatia is delinquent
in respect of its cooperation with the Office of the Prosecutor (OTP), and
the Prosecutor invites the President to find that the circumstances reported
above amount to nothing less that a blatant failure by the Republic of Croatia
to comply with its international obligations, the effect of which may seriously
damage the Prosecutor’s ability to conduct investigations and bring to
justice persons who should be prosecuted in the international forum. Such
a failure by the Republic of Croatia has already delayed the Prosecutor’s
investigations. Should the failure continue, the progress and ultimate success
of certain investigations and prosecutions may be placed at serious risk,
with the result that the ends of international justice may be defeated.

The request dealt
in large part with Croatia’s denial of the Prosecutor’s entitlement
to investigate issues relating to ‘Operation Storm’ and its aftermath,
she said. Croatia had to this day taken the position that this did not amount
to an armed conflict and therefore the Prosecutor did not have jurisdiction
to investigate. This was, as a matter of law, the same position taken by the
FRY with respect to Kosovo, she noted. The FRY took the position that the situation
in Kosovo, before the airstrikes, did not amount to an armed conflict and therefore
the Prosecutor had no jurisdiction to investigate.

The Prosecutor
stressed that she did not wish to suggest that it was the same factual situation.
She was not attempting to make any comparisons between ‘Operation Storm’
and the events in Kosovo, only to point out that it was the same legal situation,
where a state was unilaterally characterizing an event in legal terms so as
to defeat the Prosecutor’s entitlement to investigate. She rejected both
the position of the FRY and that of Croatia, she stated. It was for the Prosecutor
to decide that there was a matter within the jurisdiction of the Tribunal to
investigate and to satisfy the President that the matter should be reported
to the Security Council. The proper time for any party to challenge the characterization
was in court.

Asked whether,
in the case of a Danish mercenary that had been convicted by a Danish court,
the Tribunal or the jurisdiction of the state should prevail, the Prosecutor
replied that she had always made clear that, as a matter of law, the Tribunal
did not have exclusive jurisdiction. However, she added that the Tribunal worked
on the principle that both the Tribunal and domestic courts had roles to play
in the investigation of war crimes. The important point was that the Tribunal
had primacy over national courts and could therefore request that national courts
defer to the competence of the Tribunal. They would be obliged to transfer the
case to the Tribunal if the Prosecutor initiated such a request, she added.

Continuing, the
Prosecutor said that primacy was one of the matters raised in the report to
the President, specifically on the issue of the continued delinquency of Croatia
in transferring Tuta and Stela to The Hague. She said that in the document to
the President, she had reflected her surprise during her visit to Zagreb at
being informed by Minister Separovic of Croatia’s new position on the issue.
The Minister had informed her that there would be no transfer of the accused
until all proceedings against them had been exhausted, including terminating
the sentences that had been imposed on them. She understood this to mean a delay
of eight years in the case of Stela. However, in a letter from Minister Separovic,
it had been suggested that the position, which in her view had no foundation
in law, might be revised.

Asked how long
the procedure of going to the Security Council would take and when the next
deadline would be, the Prosecutor replied that this was now in the hands of
the President of the Tribunal who would proceed as she saw appropriate. In the
one precedent to this case, the request that the FRY be reported, she recalled
that the FRY was notified by the President and invited to make submissions within
a timeframe she had set. The Prosecutor concluded that the current request had
only been filed with the President’s office today (28 July 1999). The Prosecutor
presumed that the President would be setting the procedure and the timeframe
in which she would deal with this matter.

Asked where the
question of whether or not a conflict was international in nature should be
addressed, the Prosecutor noted that the President had issued a decision in
which she said that, if the Prosecutor asserted that a crime within the jurisdiction
of the Tribunal had been perpetrated, a State would be compelled to comply with
any requests for cooperation. Any legal debate about it should be raised before
the court in an appropriate fashion, she added.

Asked what would
happen if the FRY did not recognize any of the findings on Kosovo because there
had been no Yugoslav forensic experts on the teams, the Prosecutor responded
by saying that there was no requirement for recognition to validate any of the
proceedings conducted within the Statute and Rules of the Tribunal and they
would be validated if necessary by the court here in The Hague. There was no
requirement that they comply with any requirement imposed by the FRY as to their
participation into these investigations. She continued that she would reject
completely the suggestion that the procedures required the supervision or even
the participation of any national authority, unless the Tribunal called on the
assistance of these states. It was not for the FRY to dictate the terms and
procedures under which the investigations conducted by the Tribunal would be
performed even on the territory of the FRY. The Tribunal was authorized to carry
out on-site investigations without the supervision of any national authority,
she said.

Asked about Gracko,
the Prosecutor said that she had nothing to report on the events that transpired
last weekend. She noted, however, that this could again raise complex factual
and legal questions relating to the jurisdiction of the Tribunal, including
whether there was a sufficient link to the continued existence of an armed conflict,
and if so, which one and of what nature. The incident had taken place so close
to the secession of hostilities that the Tribunal would have to look at all
the evidence as to whether or not there was a latent continuation of the conflict.
If not, no charges would be brought, she said, adding that she had felt that
it was inappropriate not to look at all the elements of what had happened. It
was premature to make a pronouncement about whether the events are to be classed
as a war crime, she added.

Asked whether
a request from the President to report a state to the Security Council was the
Prosecutor’s strongest weapon, the Prosecutor responded that it was and
that that it was very much a tool of last resort. She added that the Prosecution
had tried to resolve issues by other means. In the case of Croatia, repeated
requests had been made.

To illustrate
this point, the Prosecutor said that one of the requests to Croatia made at
least a year ago was to obtain all police file reports of investigative magistrates
trial proceedings held in absentia in Croatia against General Perisic and 18
other JNA officers. The Prosecution had received no response to that request,
although it had been renewed 16 times both in writing and through verbal discussions.
A report to the Security Council about the FRY had been filed with respect to
the obstruction of the Kosovo investigations and in the past with the failure
to detain the three co-accused on the ‘Dokmanovic and Others’ indictment
relating to Vukovar.

Asked whether
the request to the President related to the Blaskic case documents, the Prosecutor
responded that there was nothing in the current request to the President that
dealt with the Blaskic case. The materials being sought here were in relation
to other investigations, including ‘Storm’.

Asked what she
thought of Croatia’s position on the transfer of accused, the Prosecutor
said that she had expressed her immense surprise and disappointment to the Minister
of Justice, as she saw it as a step backwards and reminiscent of the situation
with the FRY. She found it ironic that Croatia would now put itself in the same
situation. She told the Minister that she hoped it was not the final position
because in her view it was untenable. The refusal to assist in the investigation
of alleged crimes relating to ‘Operation Storm’ and its aftermath
was the core of the current delinquency of Croatia and any compromise on other
issues, although welcome, would not compensate for that deficiency.

On the question
of the matters raised by the Prosecution in the closing arguments of the Blaskic
case and the reaction to them in Croatia, the Prosecutor said that she did not
wish to engage in a public characterization of anything said in court. The court
was a public forum where legal positions could be expressed clearly. It was
incumbent also on others to refrain from characterizing legal positions that
were advanced in good faith. This was not a political discourse. What was said
before the court in the form of submissions was simply a characterization of
the summary of the evidence that had been tendered, she said. The submissions
made by the parties in the end were not a method of introducing new evidence,
but simply an invitation extended to the court to draw conclusions based on
the evidence that had been tendered. They were made because each one of the
submissions made in court was essential to the legal conclusion that the court
was being invited to draw. Whether there was an international armed conflict
in relation to the crimes alleged against the accused was very much a legal
issue, she added.

Asked why she
was surprised at Croatia’s position, the Prosecutor replied that she was
surprised for two reasons. Firstly, on the issue of arrest, transfer and voluntary
surrenders for which Croatia had a commendable record until now, she was taken
aback by the change of attitude. Croatia had taken credit for being instrumental
in the voluntary surrender of persons to the Tribunal, including Aleksovski,
although that was not in the most expeditious manner. She had not been led to
believe that the transfer of Tuta and Stela was going to cause particular difficulties.
She was surprised at what appeared to be a hardening of position generally towards
the Tribunal and specifically the Office of the Prosecutor. She said that she
believed it to be an outrageous position to expect that the Tribunal would wait
eight years in order to bring one of its proceedings.

Asked whether
the reason the Croatian Government was unwilling to assist was because Tudjman
was terrified that he might also be the subject of a indictment, the Prosecutor
replied that she was not prepared to speculate why this non-cooperative attitude
had manifested itself.

Asked whether
the Prosecutor was receiving total cooperation with regard to ‘Operation
from other countries, the Prosecutor replied that it was not particularly useful
for her to give out periodic report cards on various countries’ cooperation.

Asked whether
there would be any more indictments issued while she worked at the Tribunal,
the Prosecutor responded that she would be in The Hague until the beginning
to middle of September. As far as she was concerned, while she was still here
it would be business as usual. The OTP was very active in Kosovo, she said.
The extraordinary effort it had had to put into the events in Kosovo while they
were unfolding had forced the OTP to deplete other investigations. Now that
they had access to Kosovo and had issued an indictment relating to Kosovo, they
were attempting to establish some balance and to send people back to the tasks
they had previously been working on.

Asked for her
opinion on the fact that for the first time part of the closing arguments in
a case had been held in private session, the Prosecutor replied that it was
understandable if arguments required reference to materials given in closed
session. She said that closing arguments were in a sense an overview of the

Asked what she
expected the Security Council to do, the Prosecutor replied that she would not
prejudge President McDonald’s decision as to whether this matter would
be reported. She said that she believed that the relationship with the Security
Council ended at the reporting threshold. After that, the remedies were political
and it was for the Council to be responsive not anymore to the judicial consideration,
but to other considerations. The usual range of reactions from the Security
Council was available and it would be highly presumptuous of her to give them
the benefit of her views, she said.