Tribunal, Kosovo and Milosevic-Holbrooke Deal

Sunday, 18 October, 1998

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IWPR ICTY

Finally, the Chief Prosecutor sought an assurance from President Milosevic that "visas will be forthcoming to enable my investigations in Kosovo to continue forthwith."

Justice Arbour's decision to personally head the proposed mission is more a reaction to conflicting media reports as to whether the Milosevic-Holbrooke agreement concluded last week, contained explicit provisions and mechanisms to ensure the Federal Republic of Yugoslavia's compliance with the International Criminal Tribunal, than it was a response to problems her office has had in the past with securing visas.

Reports have emerged suggesting that US envoy Holbrooke may have 'traded' the Tribunal's jurisdiction and the FRY's obligation to fulfil its requests in his talks with Milosevic. According to "diplomatic speculation" published by "The Times" of London on October 13, Mr. Holbrooke was offering Mr. Milosevic personal immunity from prosecution for war crimes, in return for allowing a more heavily armed international force into Kosovo.?

The fact that all details of this agreement have still not been published has only boosted rumours about a trade-off. These have not so far been dispelled by official diplomatic explanations (e.g. British Foreign Secretary Robin Cook's statement that Milosevic - by taking on the obligation to fully comply with the UN Security Council Resolution 1199 - also "implicitly" bound himself to fulfil the obligations towards the Tribunal, stipulated in paragraph 13 of that Resolution.

While the letter and the Prosecutor's public statement was formally addressed to the Yugoslav President, they were both obviously intended for a much larger audience. The Chief Prosecutor emphasised that:

The jurisdiction of this Tribunal is not conditional upon President Milosevic's consent, nor is it dependent on the outcome of any negotiations between him and anyone else. It is for the judges of this Tribunal to interpret such jurisdiction and for the Security Council to modify or expand.

The Tribunal's President, Judge Gabrielle Kirk McDonald also issued a statement on the same occasion, but with a somewhat different aim. As she assumes that the Security Council will shortly review the Milosevic-Holbrooke agreement, Judge McDonald used the opportunity to remind of the Tribunal's other "unfinished business" with the Yugoslav President.

In her public statement, the Judge McDonald recalled that she wrote to the Security Council last month and subsequently briefed its members on the persistent failure of the FRY to surrender three persons indicted by the International Tribunal in November 1995 -Mile Mrksic, Miroslav Radic and Veselin Sljivancanic - charged with the murder of 260 unarmed men following the fall of Vukovar in late 1991. Today they remain at large. The FRY - McDonald noted - "continues to flout the law and the will of the international community by refusing to transfer them to the International Tribunal. Accordingly, the President would like to take this opportunity to reiterate that the Federal Republic of Yugoslavia is legally required to co-operate with the International Tribunal. She reminds all involved parties of the need to ensure the FRY's full compliance with all of its obligations towards the International Tribunal."

Given the persistence with which the FRY authorities continue "to flout the law and the will of the international community", it is utterly irrelevant what - in terms of the obligations towards the Tribunal - Milosevic signed in the agreement with Holbrooke. In December 1995, the Yugoslav President signed the Dayton Peace Agreements. In legal terms this is a far more relevant document, a binding inter-state agreement - in which he not only "implicitly", but also very explicitly, bound himself to full co-operation with the Tribunal and full-compliance with its orders. This, however, did not stop him continuing "to flout the law and will of the international community." No doubt this flagrant violation of orders will continue so long as the likes of the UN Security Council continue to tolerate such behaviour.