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Role Of The Tribunal In Rambouillet

By Mirko Klarin
By IWPR

The Tribunal's President Gabrielle Kirk McDonald last Monday wrote to foreign ministers of France and Great Britain, Hubert Vedrine and Robin Cook, urging them to intervene in the final moments of the Kosovo peace talks at Rambouillet. She warned against "sacrificing the principles on which the Tribunal is founded for short-term political interest."

"In recent days" - wrote McDonald - "I have received worrying reports... that the text currently under consideration by the parties does not contain provisions that would require them to recognise the competence of the International Tribunal or to take specific measures to co-operate with the Tribunal.

"Rather, I understand that under the current draft of the agreement, the parties would sign only a general provision on co-operation. Considering the attitude of the Government of the FRY to the Tribunal, as demonstrated by its record of non-co-operation with and obstructionism of Tribunal requests and orders, in my judgement, such a generic provision is not sufficient to ensure that the Tribunal will be able to discharge its mandate.

"As you are aware, since March 1998 both the Security Council and Contact Group have repeatedly reaffirmed that mandate with respect to Kosovo. The repeated refusal of the Government of the FRY to obey the will of the international community by recognising the competence of the Tribunal and facilitating its activities therefore renders it imperative that the agreement's provisions concerning the Tribunal make explicit reference to its legal right to access to Kosovo and to conduct investigative activities there.

"We cannot allow the authority of the Tribunal to be ignored or to be dismissed by omitting recognition of mandatory Chapter VII obligations in the agreement. I fear, therefore, that if there is not express reference to the matters I have mentioned, it could be well construed that, by omission, there is a tacit agreement that the Tribunal may be ignored. I urge you to use your influence as co-chair of the peace talks not to allow this to occur.

"It is axiomatic that there can be no peace without justice. Thus, any agreement that fails to bind explicitly the Government of the FRY and the Kosovar Albanians to specific forms of co-operation, risks being perceived as sacrificing the principles on which the Tribunal is founded for short-term political interest."

The day after President McDonald's letter, the talks at Rambouillet were adjourned until 15 March. The following two days were rife with speculation and conflicting information about the place of the Tribunal in final version of the Interim Agreement for Peace and Self-Government in Kosovo. Spokesperson of the French Ministry of Foreign Affairs, Anne Gazeau-Secret, on Thursday was adamant that the Interim Agreement expressly confirms Tribunal's mandate in Kosovo and underscores the duty of both sides to co-operate in the investigation of atrocities committed in Kosovo. Gazeau-Secret, however, refused to quote those parts of the Interim Agreement that are relevant to the Tribunal, saying that this was not part of her brief.

Meantime, Tribunal Update has obtained a copy of the final version of the Interim Agreement for Peace and Self-Government in Kosovo. Here are the relevant passages:

"Article II: Confidence-Building Measures 13. All Parties shall comply with their obligation to co-operate in the investigation and prosecution of serious violations of international humanitarian law. a) As required by United Nations Security Council resolution 827 (1993) and subsequent resolutions, the Parties shall fully co-operate with the International Criminal Tribunal for the Former Yugoslavia in its investigations and prosecutions, including complying with its request for assistance and its orders. b) The Parties shall also allow complete, unimpeded and unfettered access to international experts - including forensics experts and investigators - to investigate allegations of serious violations of international humanitarian law."

(Two formulations that existed in the Draft Agreement of 27 January 1999 as it was tabled at the opening of talks in Rambouillet - and which was reportedly greeted with approval in the Hague - were dropped in the final version. The first paragraph of the Draft Agreement defines as the subject of investigation and prosecution not only "serious violations..." but also "war crimes and crimes against humanity". In the sentence inserted into the third paragraph: "including forensics experts and investigators," draft had specified from where: "from the International Criminal Tribunal for the Former Yugoslavia." In this way, Belgrade may claim to be following the Interim Agreement even if instead of forensics experts and investigators from the Hague they deploy experts from Minsk, for example, which is exactly what happened in case of the Racak massacre.)

Apart from the provision quoted above from Article II-13, the Tribunal is also mentioned in several other places of the Rambouillet Interim Agreement. The chapter on Principles of Democratric Self-Government in Kosovo proclaims that "no person who is serving a sentence imposed by the ICTY, and no person who is under indictment by the Tribunal, and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any office." The chapter on military implementation of the Interim Agreement specifies that the Joint Military Commission "shall not include any person publicly indicted by the International Tribunal."

Finally, the Tribunal is also explicitly mentioned in one of the concluding provisions, in Article XIII: Cooperation. "The Parties shall co-operate fully with all entities involved in implementation of this settlement, as described in the Framework Agreement, or which are otherwise authorised by the United Nations Security Council, including the International Criminal Tribunal for the former Yugoslavia."

Potentially the most important detail for the Office of the Prosecutor is in one of the introductory provisions, where Tribunal is in fact not even mentioned. It says that the FRY "shall not require visas, customs or licensing for persons or things for the Implementation Mission (IM), the UNHCR and other international organisations (...) working in Kosovo as determined by the Chief of the Implementation Mission (CIM)."

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