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Press Release
(Exclusively for the use of the media. Not an official document)
JL/PIU/386-E
The Hague, 18 March 1999
PRESIDENT McDONALD REPORTS THE CONTINUED NON-COOPERATION BY THE FEDERAL REPUBLIC OF YUGOSLAVIA TO THE SECURITY COUNCIL
Please find below the text of the letter sent from the President of the Tribunal, Judge Gabrielle Kirk McDonald, to the President of the Security Council on 16 March 1999 in which she reports the continuing refusal of the Federal Republic of Yugoslavia to cooperate with the ICTY. In addition, please find attached the letter from President McDonald to the Prosecutor, Justice Louise
Arbour, explaining her response to the Request Pursuant to Rule 7bis(B) which the Prosecutor submitted to her on 2 February 1999.
His Excellency
Ambassador Qin Huasun
President of the Security Council
United Nations
New York, NY 10017
USA …/…
16 March 1999
Excellency,
Once again, I have the duty to report to the Security Council the continuing refusal of the Federal Republic of Yugoslavia (Serbia and Montenegro) to co-operate with the International Tribunal, as required by numerous Resolutions of the Security Council and the Tribunal’s Statute. The reason for making this report is the additional instances in which the Federal Republic has
refused to permit the Prosecutor and her investigators to enter Kosovo, in order to initiate investigations into alleged crimes committed in that territory.
On 2 February 1999, I received a "Request by the Prosecutor, Pursuant to Rule 7bis(B), that the President Notify the Security Council that the Federal Republic of Yugoslavia has Failed to Comply with its Obligations Under Article 29" (hereinafter, "the Prosecutor’s Request") and supporting documents. On 12 February 1999, I invited the Federal Republic of Yugoslavia to respond, no
later than 26 February 1999, to the Prosecutor’s assertions. I have received no such response.
The Prosecutor’s Request relates, inter alia, to the failure of the Federal Republic of Yugoslavia to allow the Prosecutor and a team of her investigators to enter Kosovo on 18 January 1999, in order to initiate an investigation into alleged criminal activity occurring in Racak, Kosovo. The Prosecutor relied, in part, on Security Council resolution 1160 (1998), which urged the
Prosecutor to "begin gathering information related to the violence in Kosovo that may fall within its jurisdiction." This refusal is in direct contravention of the Federal Republic of Yugoslavia’s obligations under resolution 1160, which notes "that the authorities of the Federal Republic of Yugoslavia have an obligation to cooperate with the Tribunal…," and international law
generally.
The International Tribunal’s Rules of Procedure and Evidence provide, under to Rule 7bis(B), that when the Prosecutor satisfies the President of the International Tribunal that a State has failed to comply with its obligations under the International Tribunal’s Statute, "the President shall notify the Security Council thereof". I have made a finding, pursuant to Rule 7bis(B),that
the Federal Republic of Yugoslavia has failed to meet its obligations under Article 29 of the Statute of the Tribunal.
I would also note that in Security Council resolution 1207 of 17 November1998 the Council reiterated its call for the Federal Republic of Yugoslavia to cooperate fully with the Prosecutor fully with the Prosecutor in the investigation of all possible violations within the jurisdiction of the Tribunal. In resolution 1207, the Council requested that I keep it informed "about the
implementation of the resolution for the Council’s further consideration."
The Security Council created the Tribunal to investigate and prosecute persons responsible for some of the most horrific violations of international humanitarian law. As a subsidiary organ of the Security Council, and because the Tribunal lacks mechanisms to enforce State compliance, we rely on the Security Council to bring non-co-operating States into compliance. Once again, I
urge you to provide the support necessary to enable the Tribunal to discharge its mandate and to take measures that are sufficiently compelling to bring the Federal Republic of Yugoslavia into compliance with its obligations under international law.
Excellency, please be assured of my highest consideration.
Sincerely,
Gabrielle Kirk McDonald
President
cc: Justice Louise Arbour
Prosecutor
H.E. Mr. Zoran Knezevic
Federal Minister of Justice
Belgrade
FEDERAL REPUBLIC OF YUGOSLAVIA
Justice Louise Arbour
Prosecutor
International Criminal Tribunal for the Former Yugoslavia
16 March 1999
Dear Justice Arbour,
On 2 February 1999, your office submitted a Request Pursuant to Rule 7bis(B) (hereinafter, "the Request") formally requesting that I notify the Security Council that the Federal Republic of Yugoslavia has failed to meet its obligations under Article 29 of the Statute of the Tribunal. On 12 February 1999, I invited the Federal Republic of Yugoslavia to make a written
submission on this matter no later than 26 February 1999. No response has been received. Having considered the Request, the Statute, and the Rules of Procedure and Evidence, I herewith set forth my conclusions.
In the Request, you state that "in order to satisfy the President of the non-compliance in question", the Prosecutor shows: 1) the basis for initiating the investigation in Kosovo; 2) the "nature of the State non-compliance"; 3) the threshold determination necessary to commence an investigation; 4) the Federal Republic of Yugoslavia’s jurisdictional objections; and 5) "why those
objections have no merit" (Request, p. 2). The Request then goes on to state that you will demonstrate that the Prosecutor "has properly exercised her Statutory authority and mandate by assessing information and that there is a sufficient basis to initiate an investigation into the events in Kosovo" (Request, p. 3). To show that these requisites have been met, you state that the
Prosecutor has: 1) conducted a reasoned evaluation of the information received; 2) decided that the information is credible; and 3) decided that the information "tends to show that crimes within the Tribunal’s jurisdiction have been committed in Kosovo".
In support of these contentions, you then outline, in detail, the legal and factual basis for the Request. The Request discusses, inter alia, Security Council Resolution 1160 of 31 March 1998, which urges the Prosecutor to gather evidence related to the violence in Kosovo, and the Federal Republic of Yugoslavia’s refusal to cooperate with the Office of the Prosecutor by
failing to grant it access to investigate in Kosovo.
You point out that this is part of a pattern of non-compliance contrary to the Statute, e.g., failure to defer to the competence of the Tribunal, failure to transfer nationals for trial, failure to execute warrants, failure to provide evidence and information.
The Request also notes the purported grounds on which the Federal Republic of Yugoslavia has based its refusal not to cooperate with the Prosecutor and then reviews the basis on which you decided to initiate an investigation. In this regard, you extensively discuss the alleged offences committed which come within the Tribunal’s jurisdiction, the existence of an armed conflict and
the information you have assessed.
The Request appears to assume "that the Prosecutor’s investigation is reviewable" by the President under Rule 7bis(B) and submits that the standard of review is an arbitrary and capricious standard (Request, p. 9). You state that for "a reviewer" to conclude that the decision was arbitrary and capricious, he/she would have to "find no reasonable person could have decided to
initiate an investigation" (id).
Based on the Request, it appears that you are asking that I review your decision to initiate an investigation, including reviewing your determinations that the alleged offences are within the Tribunal’s jurisdiction and that an armed conflict exists in Kosovo.
The President’s authority to notify the Security Council that a State has failed to comply with an obligation under Article 29 of the Statute is set forth in Rule 7bis(B), which provides:
If the Prosecutor satisfies the President that a State has failed to comply with an obligation under Article 29 of the Statute in respect of a request by the Prosecutor under Rule 8, Rule 39 or Rule 40, the President shall notify the Security Council thereof.
For the reasons set forth below, I have concluded that in order to make a determination under Rule 7bis(B) of non-compliance, it is not necessary or appropriate for the President to review the Prosecutor’s decision that there is a sufficient basis to initiate an investigation under Article 18 of the Statute.
Article 16(2) of the Statute provides that the Prosecutor shall act independently as a separate organ of the Tribunal; moreover, Article 18 provides that the Prosecutor "shall initiate investigations". Therefore, it is clear that only the Prosecutor may initiate an investigation and that the President does not exercise any control in this regard. However, the approach proposed in
the Request would result in the President making a quasi-judicial finding regarding the initiation of an investigation, a responsibility vested clearly with the Prosecutor. Rule 7bis(B) cannot be interpreted or applied in a manner that is contrary to the Statute; therefore, I do not have the authority to conduct the review proposed in the Request.
Moreover, the quasi-judicial finding your request would, in my view, be contrary to the balance which the Statute and Rules have struck in establishing an independent Prosecutor. For example, if the President were to make a negative finding, would the Prosecutor be precluded from going forward with an investigation into the alleged criminal acts in Kosovo? Such a result would
violate the independence of the Office of the Prosecutor. There simply is no provision in our Statute or Rules for judicial review of the Prosecutor’s decision to initiate an investigation. By way of comparison, under Article 15(3) of the Statute of the International Criminal Court, judicial review of the Prosecutor’s decision to launch an investigation is required. However, such an
arrangement is conspicuously absent from both the Tribunal’s Statute and its Rules of Procedure and Evidence.
On 5 November 1998, you made a similar request for a finding of non-compliance by the Federal Republic of Yugoslavia pursuant to Rule 7bis(B). That request, however, did not assume that a judicial or quasi-judicial review was necessary to determine whether a sufficient basis for initiating an investigation by the Prosecutor was appropriate. In that case, I reported
non-compliance to the Security Council.
The Request also calls for a finding that an armed conflict exists is Kosovo. This is quintessentially a judicial determination that should be made in the context of an ongoing case; it is not necessary for the President to make such a determination to find non-compliance under Rule 7bis(B). This in no way affects your ability to initiate an investigation in Kosovo pursuant
to Articles 16 and 18 of the Statute.
While I am not able to conduct the type of review envisaged in the Request, I do find the Request shows additional instances of non-compliance by the Federal Republic. These include the Federal Republic of Yugoslavia’s refusal to allow you and your investigators into its territory to conduct investigations in Kosovo on 18 January 1999 (Request, p.4). This failure by the Federal
Republic of Yugoslavia to comply with its international obligations under Article 29 of the Statute clearly comes within the ambit of Rule 7bis(B).
In view of the above, I find that the Federal Republic of Yugoslavia is in non-compliance with its obligations under Article 29 of the Statute, and I shall report this non-compliance to the Security Council pursuant to Rule 7bis(B).
Sincerely,
Gabrielle Kirk McDonald
President
Copy furnished:
H.E. Mr Zoran Knezvic
Federal Minister of Justice
Belgrade
Federal Republic of Yugoslavia
Enclosure: as stated
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