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McDonald, the Security Council and the Prosecutor

By Mirko Klarin

In a letter to the ICTY staff members, distributed on 15 March, Judge Gabrielle Kirk McDonald announced her resignation effective as from 17 November 1999 - when her two-year term as President expires.

During her remaining eight months, McDonald told her colleagues she intends To "expend considerable time and energy to...challenge those who try to undermine..."the Tribunal.

The following day, she wrote a new letter to the UN Security Council, urging it "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."

This marks her fourth formal report to the UN on the FRY's non-compliance in the last six months and was written in response to "the additional instances in which the FRY has refused to permit the Prosecutor and her investigators to enter Kosovo, in order to initiate investigations into alleged crimes committed in that territory."

Aside from pointing to Article 29 of the ICTY Statute, that binds all states to cooperate with the International Tribunal, McDonald recalled last year's Security Council resolutions (1160 and 1207), which explicitly urge the Prosecutor to "begin gathering information related to the violence in Kosovo that may fall within the jurisdiction", and binds the FRY "to cooperate fully with the Prosecutor" in her Kosovo investigation.

McDonald concluded by recalling that the Tribunal was created by the Security Council, as its "subsidiary organ", and that lacking its own mechanisms for enforcing state compliance, the Tribunal relies on the Security Council to bring non-co-operating states into compliance.

Pointing out persistent ignorance of the Tribunal's orders and requests by the Yugoslav authorities to the Security Council is nothing new. Apart from the above mentioned four written reports, McDonald discussed the issue in person in the Security Council and in the UN General Assembly. It will be news when the Security Council responds with measures it has at its disposal.

Last week's announcement by McDonald also contained some interesting legal news. Following Arbour's failed attempt to enter Kosovo with her investigating team in January to investigate the Racak killings (see Update 109), she submitted two requests to McDonald seeking both that the Security Council be formally informed about Belgrade's latest violation of the UN resolutions and also seeking a legal review of the decision to proceed with investigating war crimes in Kosovo. While agreeing to the first, McDonald announced she had refused the second request.

Arbour had been seeking President McDonald - either alone or together with other judges - to examine whether there was "an armed conflict" underway in Kosovo. If so, alleged crimes would then fall under the Tribunal's jurisdiction. Belgrade in turn disputes this and argues that "a legitimate fight against terrorism" is underway in Kosovo. This is the reason why Arbour made a proposal in December last year to Yugoslav Justice Minister Zoran Knezevic that the legal dispute over the character of the conflict in Kosovo should be taken before the judges, and that they should rule who is right. Until such times as a judgement is made, it is argued the Prosecutor should be allowed to proceed with her investigations.

President McDonald however deems that the issue of the character of the conflict is quintessentially a judicial determination...that should be made in the context of an ongoing case." Additionally, McDonald says in her letter back to Arbour which was released last week, the ICTY Statute, "provides that the Prosecutor shall act independently as a separate organ of the Tribunal", and that it "shall initiate investigations." Therefore, McDonald says, "it is clear that only the Prosecutor may initiate an investigation and that the President does not exercise any control in this regard."

Moreover, McDonald continues, "the quasi-judicial finding you 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 launch 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."

Rejecting the request for a preliminary examination of the character of the conflict in Kosovo, the Tribunal's President did not want in any way to bring into question the right of the Prosecution to start and conduct the Kosovo investigation. On the contrary, by informing the Security Council about Belgrade's rejection to allow access to Kosovo to the Prosecutor and her investigators, she unambiguously confirmed that right, and, simultaneously, preserved the right of the judges - in the future trials of the accused for the Kosovo crimes - to definitely give their opinion whether those crimes were committed in the context of an "armed conflict".

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