ICTY President McDonald addresses the Security Council.

Press Release

PRESIDENT

(Exclusively for the use of the media. Not an official document)

ICTY President McDonald addresses the Security Council.

On Friday 2 October 1998, President Gabrielle Kirk McDonald addressed the Security Council.

Please find below the full text of the President’s remarks.
 

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ADDRESS TO THE SECURITY COUNCIL OF THE UNITED NATIONS

Gabrielle Kirk McDonald
President
International Criminal Tribunal for the former Yugoslavia
 

Friday 2 October 1998

Mr. President, Members of the Security Council,

I appreciate your invitation to speak with you today and your willingness to take the time to consider this very urgent matter.

In my letter to the Security Council of September 9, 1998, I reported the continuing refusal of the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) (F.R.Y.) to cooperate with the International Tribunal. Specifically, I noted its failure to arrest and transfer to the custody of the International Tribunal three indicted persons. My letter sets out in greater detail the history of this non-compliance.

I am here today to request the Security Council to adopt effective measures to ensure there is immediate compliance by the F.R.Y. with its obligations under international law and those imposed by this body, acting pursuant to its Chapter VII authority.

In resolution 827, creating this Tribunal, the Security Council directed all States to take any measures necessary under their domestic law to implement the provisions of the resolution and the Statute of the Tribunal. Further, the Dayton Agreement requires all signatories to cooperate with the Tribunal. However, the F.R.Y. stands alone as the only signatory to the Dayton Agreement which has failed to adopt legislation to facilitate cooperation. Article 29 of the Statute of the Tribunal provides that States shall comply without undue delay with an order of a Trial Chamber for the arrest or detention of persons. The Secretary-General’s Report to the Security Council transmitting the Statute of the Tribunal states that orders of the Tribunal have the status of enforcement actions under Chapter VII. Nevertheless, the F.R.Y. has refused to transfer to the custody of the Tribunal indicted persons who are nationals of that State. It contends that its Constitution prohibits the "extradition" of its citizens.

Clearly, the duty of all States to comply with orders of the Tribunal is manifest and is not subject to compromise or exception. Moreover, it is a recognized principle of international law that States may not rely on their domestic law to thwart their international obligations. Thus, there is no basis for the F.R.Y.’s failure to comply.

In Resolution 827, the Security Council noted widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia. It determined that this situation constituted a threat to international peace and security and resolved to put an end to such crimes and to have brought to justice persons who are responsible for such crimes. The Security Council concluded that the prosecution of persons responsible for these serious violations of international humanitarian law would contribute to the restoration and maintenance of peace. Thus, in your wisdom, you made the historic decision that the International Tribunal was an appropriate measure to achieve that result.

As a court of law, the Tribunal exists to dispense justice. Yet, it cannot act effectively if its orders are disregarded. As a subsidiary organ of the Security Council, and its creation, it looks to the Security Council for the support necessary to discharge its mandate. I implore you, indeed I beseech you to assist in ensuring that the Tribunal’s orders are given effect.

The request I make is straightforward. The disregard of the F.R.Y. is clear and its obligation to co-operate is not subject to dispute.

The International Tribunal indicted the three individuals in question on November 7, 1995, for the alleged 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 the Government of the F.R.Y. for execution because it was believed that they were residing on its territory. We still believe this today, a fact which has not been disputed by the F.R.Y. On April 3, 1996, a Trial Chamber concluded that "the failure to effect service of the Indictment was due to the refusal of the F.R.Y. to cooperate with the Tribunal". Thereafter, the President of the Tribunal, on April 24, 1996, reported this non-compliance to the Security Council. On May 8, 1996, the President of the Security Council reminded the F.R.Y. of those obligations, deploring "the failure to execute the arrest warrants" and calling for the immediate execution of those warrants. The Security Council remained seized of the matter.

On December 19, 1997, a Trial Chamber ordered the authorities of the F.R.Y. to serve the three accused with the Indictment and, once again, the F.R.Y. failed to respond. I should note that the President of the Tribunal has reported non-compliance by the F.R.Y. on another occasion for its failure to execute arrest warrants of the Tribunal. On July 11, 1996, the President reported to the Security Council the failure of the F.R.Y. to execute arrest warrants against Radovan Karadzic and Ratko Mladic. In response, a Presidential Statement was issued on August 8th.

Thus, almost three years after their indictment and the issuance of arrest warrants, and nearly seven years after the families of the victims lost their loved ones, the three accused I speak of today remain at liberty. And, there is no indication that the F.R.Y. is currently taking any action on this matter.

This intentional non-compliance has far-reaching consequences for international peace and security.

No State should be permitted to act as if it is "above the law". Such transgression is not only unlawful, but importantly sends a message to other States that the measures adopted by the Security Council can be ignored. Therefore, it is imperative that the F.R.Y. be brought into the fold of nations who believe in world peace and respect the authority of the Security Council.

Under Article 29 of the Tribunal’s Statute, States are to comply with orders of the Tribunal "without undue delay". The F.R.Y. has been in non-compliance for almost three years. It is unconscionable for a State to be allowed to flaunt their obligations under international law. This behaviour undermines the vision of the Security Council that the Tribunal was indeed the appropriate measure to redress the commission of serious violations of international humanitarian law in the former Yugoslavia.

There comes a time when such defiance cannot be ignored. That time is now. The world community, embodied by the United Nations, must not allow this territory to revert to the catastrophy we watched begin and escalate in the early 1990s. We must learn from the lessons of the past, lest they be repeated.

The International Tribunal has made great strides in dispensing international criminal justice in the five years of its existence. We now have five ongoing trials where we apply the highest international standards of justice. The Tribunal has finally overcome many obstacles it faced in the early years. It is now effective and fully functioning. It will continue to execute the mandate given to it by the Security Council. However, the threat posed by the non-compliance of the F.R.Y. must be dealt with once and for all. The obstructionist actions of the F.R.Y. that taint the institution which you created with the expectation that peace, security and reconciliation would be achieved in the former Yugoslavia from the ashes of death and destruction must no longer be tolerated.

I know that the Security Council is fully committed to our work. I request that you not allow any State to stand in the way of the fulfilment of the mandate you charged us with when you established the International Tribunal.

Thank you for allowing me to speak with you today.

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International Criminal Tribunal for the former Yugoslavia
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