The Office Of The Prosecutor Versus Croatia

On Wednesday 28 July, the Tribunal appeared to add insult to injury after Chief Prosecutor Louise Arbour filed a request to the President of the Tribunal to find that the Republic of Croatia has failed to comply with its obligations under Article 29 of the Statute of the Tribunal, and to notify the UN Security Council of such a failure.

Speaking of her decision to apply her "tool of last resort", Arbour last week recalled the history of the relations between the Tribunal and Croatia and included the most recent discussions she had 10 days ago with Mate Granic and Zvonimir Separovic, the Foreign Affairs and Justice ministers respectively (See Tribunal Update 135).

While in Zagreb on her latest visit, Arbour told both minsters that she would indeed be submitting SUCH a request to the ICTY President, Gabrielle Kirk MacDonald, unless Croatia handed over the much requested documents relating to investigations of possible violations of international humanitarian law in Operations "Flash" and "Storm" when up to 180,000 Serbs were themselves ethnically cleansed from the Krajina region around Knin.

The tribunal has also been after documents relating to events in Gospic and the Medak Pocket and a number of other investigations.

Croatia has so far failed to fulfil 13 requests by the Tribunal - some of which have reportedly been repeated 16 times either orally or in written form. Among the requests, to which Croatia failed to respond, is the one related to the documentation of the Zadar trial, conducted in their absence, concerning General Momcilo Perisic and another 18 officers of the former Yugoslav Army.

Arbour refuses to say why is "interested" in General Perisic, and says too that she has no obligation even to the Croatian authorities to explain why her office has requested certain material.

Croatia rejects the Tribunal's jurisdiction over operations like "Storm" by claiming they were limited police actions and not armed conflicts. To back her arguments, the Chief Prosecutor last week pointed to the fact that Yugoslavia in turn disputed her jurisdiction over Kosovo with the same arguments.

After delivering an oral warning to Granic and Separovic, Arbour said she received a letter back from Separovic which reiterated Croatia's position on Operation Storm, but added that as a gesture of good faith it was producing "a number of the materials requested in the Consolidated Request."

On top of that, the Justice Minister wrote that Croatia was prepared "to explore immediately the possibility" of transferring the accused "Tuta" Naletelic and "Stela" Martinovic to the Tribunal. But this partial fulfilment of her requests has not satisfied Arbour.

In writing to McDonald, the tribunal President, Arbour maintains that "such a reply, unspecific in every respect, is no different from the kind of negative answers that have been given week in week out to the Prosecutor's representatives in Zagreb."

Concluding that "Croatia is delinquent in respect of its co-operation with the OTP," the Prosecutor invites the President to find that reported circumstances "amount to nothing less than a blatant failure by the Republic of Croatia to comply with its international obligations."

Zagreb's behaviour warns Arbour, "may seriously damage the Prosecutor's ability to conduct investigations and bring to justice persons who should be prosecuted in the international forum. Such a failure by the Republic of Croatia has already delayed the Prosecutor's investigations and should the failure continue, the progress and ultimate success of certain investigations and prosecutions may be placed at serious risk, with the end result that international justice may be defeated."

It is now down to McDonald who might ask the Croatian authorities to present their counter-arguments to Arbour's before she makes her own decision on the Prosecutor's request.