Letter from President McDonald to the President of the Security Council.

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

The Hague, 22 October 1998

JL/PIU/356-E

Letter from President McDonald to the President of the Security Council.

Today, the President of the International Criminal Tribunal for the former Yugoslavia, Judge Gabrielle Kirk McDonald, sent a letter to His Excellency Mr. Jeremy Greenstock, President of the United Nations Security Council. Please find the full text of this letter below:

Excellency,

I have the honour to bring the following matter to the attention of the Security Council.

Recent efforts to find a peaceful solution to events in Kosovo have resulted in agreements between the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) (F.R.Y.) and the Organisation for Security and Cooperation in Europe and the North Atlantic Treaty Organisation. The President of Serbia has also issued a "Statement on the Principles of a Political Solution and on a Timetable Framework" [sic] (Statement of the President of Serbia). While the agreements commit the government of the F.R.Y. to accept an international verification system in Kosovo, they contain no provisions regarding the F.R.Y.’s obligation to cooperate with the International Criminal Tribunal for the former Yugoslavia (International Tribunal). Moreover, it would appear that the Statement of the President of Serbia reserves to the domestic judicial system of the F.R.Y. the right to investigate, prosecute and try offences committed in Kosovo that may fall within the jurisdiction of the International Tribunal.

This is of particular concern to the International Tribunal considering the history of its relationship with the F.R.Y., characterised by near-total non-compliance. Thus, I respectfully submit that it is imperative that the competence of the International Tribunal is unambiguously reaffirmed and that the obligation of the Government of the F.R.Y. to cooperate with it is made an explicit part of any resolution of the situation in Kosovo.

As you are aware, in September of this year, I wrote to the Security Council and subsequently briefed its members on the continuing refusal of the Government of the F.R.Y. to cooperate with the International Tribunal by failing to arrest and transfer to the custody of the International Tribunal three persons indicted by the International Tribunal. Mile Mrk{ic, Miroslav Radi} and Veselin [ljivan}anin were indicted on 7 November 1995 for the murder of 260 unarmed men following the fall of the city of Vukovar in November 1991. I recalled that

in March 1996, international warrants of arrest were sent to all States, and that in April 1996, my predecessor reported the F.R.Y.’s failure to arrest the three men to the Security Council. Today, these men remain at liberty, believed to be residing in Serbia. Moreover, that Government has ignored the Security Council’s decision that all States should adopt legislation necessary to implement the provisions of resolution 827 and the Statute of the International Tribunal. It stands alone among the signatories to the General Framework Agreement for Peace in Bosnia and Herzegovina in neither having adopted such legislation, nor having transferred to the International Tribunal’s custody those indictees on its territory. The F.R.Y. has, thus, failed to comply with resolution 827 and the Statute of the International Tribunal, in particular Article 29.

With respect to events in Kosovo, the Security Council has confirmed on two occasions that the F.R.Y. is bound under international law to comply with the International Tribunal. Resolution 1160, passed in March of this year, inter alia, noted that the authorities of the F.R.Y. are so bound. In resolution 1199, the Security Council reiterated that obligation and called upon the F.R.Y. and other concerned parties to cooperate fully with the International Tribunal.

I am, therefore, gravely concerned that the agreements concluded on the situation in Kosovo lack an explicit recognition of the F.R.Y.’s obligation towards the International Tribunal. While they do require, inter alia, the F.R.Y. to comply with the provisions of resolution 1199, there is no express commitment from the Government of the F.R.Y. to cooperate with the International Tribunal. In this regard, I note with alarm that the Statement of the President of Serbia declares that "no person will be prosecuted in state courts for crimes related to the conflict in Kosovo except for crimes against humanity and international law…". This expression of the view of the Government of Serbia does not include a reference to the International Tribunal. I fear, therefore, that it represents an implicit attempt to deny the primacy of the International Tribunal and to disregard the legal requirement that Serbia, as a part of the F.R.Y., should facilitate the work of the International Tribunal.

While I hope that the Government of the F.R.Y. will now cease its pattern of non-cooperation, I fear that in the absence of a specific commitment to obey the will of the Security Council, the International Tribunal will continue to experience further difficulties with the Government of the F.R.Y. In this regard, I note that, since my address to the Security Council last month, the F.R.Y. has taken no action to arrest the three indicted individuals referred to above.

The obligation to cooperate and comply is incontrovertible. It is not subject to alteration, negotiation or abrogation by any individual or government. The Security Council, as the body with the authority to create the International Tribunal, is the only body that may revise or rescind this obligation. The Security Council has not done so and, thus, the obligation remains. Considering resolution 1199, it is clear that the F.R.Y. may not impede the work of the Prosecutor as she carries out investigations within Kosovo. It is also clear that the F.R.Y. must take all other action that is necessary to facilitate the work of the International Tribunal, including the arrest of indicted persons.

All States are subject to international law. All States must respect and ensure respect for their international obligations. In an era characterised by an increased emphasis on the human rights of individuals, the F.R.Y.’s continued flouting of the will and the law of the international community jeopardises all efforts to bring peace to the peoples of the former Yugoslavia. For these reasons, I respectfully urge the Security Council to take such action as is necessary to vindicate the status and primacy of the International Tribunal and to ensure that compliance from the F.R.Y. is now forthcoming.

Accept, Excellency, the assurances of my highest consideration.

Gabrielle Kirk McDonald

President