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New Security Council Resolution

Tribunal Update 102: Last Week in The Hague (16-20 November)
By IWPR ICTY

This was the Security Council's response to Tribunal President Judge Gabrielle Kirk McDonald's request in a letter of 6 November, whereby she pleaded the Security Council to take "measures which are sufficiently compelling to bring the Federal Republic of Yugoslavia into the fold of law-abiding nations." (see Tribunal Update 101).

The operative part of the Resolution 1207 is as follows:

Acting under Chapter VII of the Charter of the United Nations, the Security Council

1. Reiterates its decision that all States shall cooperate fully with the Tribunal and its organs in accordance with resolution 827 (1993) and the Statute of the Tribunal, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute, to execute arrest warrants transmitted to them by the Tribunal, and to comply with its requests for information and investigations; 2. Calls again upon the Federal Republic of Yugoslavia, and all other States which have not already done so, to take any measures necessary under their domestic law to implement the provisions of resolution 827 (1993) and the Statute of the Tribunal, and affirms that a State may not invoke provisions of its domestic law as justification for its failure to perform binding obligations under international law; 3. Condemns the failure to date, of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the Tribunal against the three individuals referred to in the letter of 8 September 1998, and demands the immediate and unconditional execution of those arrest warrants, including the transfer to the custody of the Tribunal of those individuals; 4. Reiterates its call upon the authorities of the Federal Republic of Yugoslavia, the leaders of the Kosovo Albanian community and all others concerned, to cooperate fully with the Prosecutor in the investigation of all possible violations within the jurisdiction of the Tribunal; 5. Requests the President of the Tribunal to keep the Council informed about the implementation of this resolution for the Council's further consideration; 6. Decides to remain seized of the matter.

The Resolution, which was adopted with 14 votes for and one abstention (China), was somewhat watered down in the process of drafting by Russia, in part, where it explicitly confirms the Tribunal's jurisdiction in Kosovo. The Resolution is nevertheless "sufficiently compelling" to all law-abiding nations as it is. It refers to Chapter VII of the United Nations Charter, and is not only legally binding, but also enforceable.

The problem, of course, is that FRY breached dozens of such binding and enforceable resolutions in the recent years, and that another one in a succession of such documents is unlikely to impress the addressees. The situation is likely to remain as it is until the Security Council decides to adopt other measures for enforcement of its binding resolutions that are at its disposal, such as those of political, economic and military character.

Although she rated the latest Resolution "important", President McDonald obviously does not consider it enough to bring FRY "into the fold of law-abiding nations," as she pleaded in her letter of 6 November.

While submitting her Annual Report on the activities of the Tribunal at the UN General Assembly last week, President McDonald called upon the General Assembly to mobilise its powers towards the same goal. She reminded that hers is the fifth Annual Report of the Tribunal, and that each of the four preceding reports pointed at the non-compliance of Belgrade as the "major obstacle to the ability of the Tribunal to discharge its mandate".

Despite these, "little has been done by the world community to address this problem. Not surprisingly, the apparent effect of this inaction has been to give the Federal Republic of Yugoslavia a license to disregard, with impunity, its international obligations. The failure to address this non-co-operation in a meaningful way has emboldened the FRY to unabashedly obstruct the Tribunal, and in the process, the will and explicit mandate given to it by the United Nations.

Thus, the Federal Republic of Yugoslavia's actions, flouting international law, are an affront to the United Nations and the very principles underlying the establishment of this institution... I submit that the Federal Republic of Yugoslavia is, therefore, making a direct challenge to the authority of the Security Council.

"I respectfully call upon this body to state unequivocally that such action will not be countenanced for it threatens to undermine everything the United Nations stands for. I urge this body to reaffirm those principles and ensure that no State will be permitted to violate with impunity its obligations under international law.

"We are truly at a watershed," concluded President McDonald in her address to the General Assembly. "The Tribunal lacks an independent enforcement power to bring about compliance. We cannot accomplish our mission... without your unequivocal support. Our accomplishments to date are subject to being overshadowed by the precedent that would be set if one State is permitted to ignore its internationally imposed obligations

. Ignoring the FRY's non-co-operation and non-compliance which has escalated into blatant obstructionism encourages other States to do likewise, inflicting a devastating blow to international law and this institution. The Tribunal has done everything within its power to achieve the purposes for which it was established.

If we do not succeed, it will not be because we have failed. If we do not succeed, it will be because the world community has failed the Tribunal. It will have been failed by the States that created it and on whom it relies for its effectiveness, and the international community will have forsaken its commitment to the rule of law."