Please find below the full text of the letter from Judge Gabrielle Kirk McDonald, the President of the International Criminal Tribunal for the former Yugoslavia (ICTY), to the President of the United Nations Security Council, dated 2 November 1999. 

2 November 1999

Excellency,

As you are aware, my term of office as President of the International Tribunal will come to an end on 16 November 1999.  I would, therefore, like to draw your attention to several outstanding matters of State non-compliance with Article 29 of the International Tribunal’s Statute.  During the past four years, my predecessor, Judge Antonio Cassese and I have reported, on numerous occasions, State non-compliance and many of these matters remain unresolved.  In fact, notwithstanding action by the Security Council, including Resolutions 940 and 1207 and several Presidential Statements, the States concerned have continued to flaunt the will of the international community, refusing to co-operate with the Tribunal and failing to carry out their legal obligations.  This is simply unacceptable, and I respectfully request that the Security Council take steps to address this troubling situation. 

These reports may be categorised as follows: 1) failure to arrest and transfer individuals indicted by the Tribunal; 2) failure to recognise the Tribunal’s jurisdiction over certain operations; and 3) failure to permit investigators of the Tribunal access to sites in Kosovo where criminal activity allegedly occurred.  Attached hereto is a list setting forth previous reports of non-compliance.  With the recent events and the Prosecutor herself in Kosovo, this latter category has largely been resolved.  The first two categories, however, remain unresolved and constitute continuing acts of non-compliance by the States and entity involved.

Permit me, Excellency, to reiterate these unresolved reports and to stress, once again, why it is important that States comply with the orders and requests for assistance from the Tribunal.  We have made a number of requests for the arrest and transfer of eight individuals.  The most frequently requested failure to arrest and transfer indicted individuals concerns what have become known as the “Vukovar Three”.  These individuals, Mile Mrkšic, Miroslav Radić and Veselin Šljivančanin,, were indicted for the murder of 260 civilians and other unarmed men, following the fall of Vukovar in November 1991.  On 3 April 1996, Trial Chamber I of the Tribunal certified that “the failure to effect service of the indictment was due to the refusal of the Federal Republic of Yugoslavia”.  Consequently, this failure to comply was reported to the Security Council on no less than four occasions, yet these individuals remain at large.  Other reports citing the failure to arrest and transfer indicted individuals have been addressed to the Bosnian Serb entity (concerning Dragan Nikolić), the Federal Republic of Yugoslavia (concerning Radovan Karadžić and Ratko Mladić), the Republic of Croatia (concerning Ivica Rajić and Mladen Naletilić) and Bosnia Herzegovina (concerning Ivica Rajić).

With respect to the failure to recognise the Tribunal’s jurisdiction over certain operations, on 25 August 1999, I reported non-compliance of the Republic of Croatia concerning that State’s failure to recognise the Tribunal’s jurisdiction over events relating to “Operation Storm” and “Operation Flash”.  The Security Council has not responded to this report, which was made pursuant to Rule 7bis of the Tribunal’s Rules of Procedure and Evidence.  Moreover, I reported the failure of the Federal Republic of Yugoslavia to recognise the Tribunal’s jurisdiction over alleged offences committed in Kosovo.    

As I have stressed repeatedly in reporting such non-compliance to the Security Council, the Tribunal is at the mercy of the international community for enforcement of its orders.  The Tribunal lacks coercive mechanisms and must rely on the international community to give effect to its arrest warrants and other orders.  All too often, this assistance is lacking.  To make matters worse, the Tribunal is often at odds with the authorities of certain States of the former Yugoslavia who have attempted to systematically undermine the work of the Tribunal.   When faced with what has amounted to blatant obstructionism, the Tribunal’s only recourse is to the body that created it—the Security Council. 

In this, my final report to the Security Council as President of the Tribunal, I implore you to take the effective measures necessary to bring these recalcitrant States and entity back into the fold of the community of law-abiding nations.  No State has the right to disregard its clear obligations under international law.  The Tribunal is a creation of the Security Council, acting pursuant to Chapter VII of the United Nations Charter.  Consequently, and in accordance with Article 29 of the Tribunal’s Statute, States are obligated to comply with the orders and requests for assistance of the Tribunal. 

On the verge of the twenty-first century, it is simply unacceptable that territories have become safe-havens for individuals indicted for the most serious offences against humanity.  It must be made absolutely clear to such States that this behaviour is legally—as well as morally—wrong.  The Security Council has the authority and wherewithal to rectify this situation.  For the benefit of all the peoples of the former Yugoslavia, I urge you to act.

In the event the Security Council would like additional information regarding any of these specific instances of non-compliance, I will be in New York from 4—8 November, and at United Nations headquarters on 8 November 1999, when I will present the Tribunal’s Sixth Annual Report to the General Assembly.

Accept, Excellency, the assurances of my highest consideration.

Gabrielle Kirk McDonaldPresident