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President's 'Farewell Reminder' To The Security Council
the Tribunal, Judge Gabrielle Kirk McDonald once again called on the UN Security Council to act effectively against "recalcitrant states" - states that dispute the Tribunal's jurisdiction, ignore its binding orders and become "safe havens for individuals indicted for the most serious offences against humanity".
Her appeal was more than just a reiteration of the known failures of the states - the FRY, Republika Srpska and Croatia - to comply with Article 29 of the Tribunal's Statute. McDonald's "farewell letter" is a polite, but unequivocal reminder of the Security Council's unfulfilled obligations, specifically its failure to use its "authority and wherewithal to rectify this situation". During the past four years, McDonald reminds, she and her predecessor, Judge Antonio Cassese, "have reported (to the Security Council) on numerous occasions State non-compliance and many of these matters remained unresolved."
This is quite an understatement. Not one of the eleven cases, reported over the past four years were resolved by the Security Council, and the last three reports of non-compliance, involving the FRY on December 8 1998 and March 16 1999, and Croatia on August 25 1999, have not yet even been considered.
The only matter resolved so far regarded the right of access of Hague investigators to Kosovo's crime scenes. But this was not due to the Security Council forcing the FRY to issue its teams visas - a specific request made in three reports. In that case it was NATO, in the shape of KFOR, that made that access possible.
Of a total of 11 Tribunal reports to the Security Council, the majority, eight, referred to the FRY, and four of these specifically to Belgrade's refusal to arrest and extradite to the Tribunal the 'Vukovar troika' of former Yugoslav army officers. Another three covered Belgrade's denial of the Tribunal's jurisdiction in the Kosovo investigations and its refusal of visas to the Hague prosecutors and investigators, and one for its failure to enforce international warrants for the arrest of Radovan Karadzic and Ratko Mladic.
Two reports were submitted against Croatia. One in September 1996, for failing to carry out the warrant for the arrest of Ivica Rajic (the same report referred to the authorities of Bosnia-Herzegovina). The second was last August, for Croatia's refusal to accept the jurisdiction of the Tribunal in the investigation of crimes committed during Operations Flash and Storm, and for Zagreb's failure to extradite Mladen 'Tuta' Naletilic.
Finally, the "Bosnian-Serb administration in Pale" was reported to the Security Council in October 1995, for failing to carry out the warrant for the arrest of Dragan Nikolic, the former commander of the Susica camp. These matters were "considered" in two Security Council Resolutions (940 and 1207) and in three presidential statements "deploring" the conduct of the "recalcitrant states".
Despite these contributions - or perhaps because of them, for they did not threaten more severe action should their non-compliance continue - McDonald said they continue "to flaunt the will of the international community, refusing to co-operate with the Tribunal and failing to carry out their legal obligations."
McDonald deems this "simply unacceptable" and "respectfully request(s) that the Security Council take steps to address this troubling situation". Though there was no need to remind the Security Council, founder of the Tribunal, of the instruments with which it has been equipped, McDonald reiterated the Tribunal's lack of "a coercive mechanism". Thus it remained "at the mercy of the international community for enforcement of its orders," she reminded them, "and to give effect to its arrest warrants." Unfortunately, said McDonald, stating the all-too-obvious, "all-too-often the assistance is lacking".
McDonald refrained from blaming this non-compliance directly on the attitude of the international community or Security Council. But she did note that the Tribunal was being left to face "the authorities of certain States of the former Yugoslavia who have attempted to systematically undermine the work of the Tribunal".
In her final report to the Security Council, President McDonald implores its members to take the "effective measures" needed to bring these recalcitrant states "back into the fold of the community of law-abiding nations".
She added: "No State has the right to disregard its clear obligations under international law... On the verge of the twenty-first century it is simply unacceptable that territories have become safe-havens for individuals indicted for the most serious offences against humanity.
"It must be made absolutely clear to such States that this behaviour is legally - as well as morally - wrong. The Security Council has the authority and wherewithal to rectify this situation." And she concluded: "For the benefit of all the peoples of the former Yugoslavia, I urge you to act."
On Monday, November 8, Judge McDonald was to submit her final report to the UN General Assembly. Two days later, on Wednesday, November 10, the new Chief Prosecutor Carla Del Ponte, who has just returned from her two-week-long mission to the states of former Yugoslavia that are under the Tribunal's jurisdiction, was scheduled to address the Security Council.
Besides informing the Security Council about the results of the Kosovo investigation thus far, Carla Del Ponte will - as we were told by her spokesman Paul Risley upon her return to The Hague - "take the opportunity to remind the Security Council of outstanding non-compliance of Croatia".
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