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Vukovar Case: Belgrade Ignores Request To Defer

Tribunal Update 112: Last Week in The Hague (8-14 February, 1999)

The three, who were indicted on 7 November, 1995, are: Mile Mrksic, Veselin Sljivancanin and Miroslav Radic.

Late last year the Tribunal was told that a military court in Belgrade has opened an investigation into the Vukovar hospital massacre and the possible role of the three JNA officers already accussed in The Hague for the same crime. on December 14, 1998, the Tribunal issued a formal request with the Yugoslav government that it 'defer' to the tribunal its proceedings against the three men.

In support of its demand, the Tribunal cited Article 9 of the ICTY statute, which stipulates that the ICTY has primacy over all national courts. under the statute and rules of the Tribunal, the states must execute such order within 60 days and hand over to the Tribunal the results of their investrigation and all related cours records. The deadline came and went without a word from Belgrade.

Last Friday's deadline is the last of a long list of missed deadlines. The first arrest warrants were issued together with the indictment against the "Vukovar three" on 7 November 1995. When the Yugoslav authorities failed to hand the men over, the Tribunal issued international arrest warrants in accordance with Rule 61 of the Rules of Procedure and Evidence - after the indictment was reviewed and re-confirmed by Trial Chamber I on 3 April 1996.

Since those warrants were not executed either, the UN Security Council on 17 November 1998 adopted Resolution 1207, condemning 'the failure to date of the Federal Republic of Yugoslavia (...) and demands the immediate and unconditional execution of those arrest warrants, including the transfer to the custody of the Tribunal of those individuals."

A day after the adoption of that binding UN Security Council Resolution - adopted under Chapter VII of the UN Charter - Belgrade authorities announced that the Military Court had started "investigative proceedings (...) in connection with the criminal offence of war crimes against prisoners of war (...) committed in the Vukovar Hospital in November 1991".

In addition, the government said the three officers would be summoned to appear as witnesses before the Military Court in Belgrade on 17 December 1998. But Belgrade's snub last week of the tribunal raises the question: what will the Tribunal do now? : According to the rules, it is now up to the Trial Chamber I, which issued the request to defer, to decide whether this represents another case of non-compliance by the FRY authorities.

Should non-compliance be found, the Trial Chamber may request the Tribunal's President to report the matter to the Security Council. It is not dificult to figure out what will be the Trial Chamber's decision and the President's next move. But it is not so easy to predict The security council's reaction.

It may be of interest to note that late last December a draft resolution dedicated both to the "Vukovar Three" and the blatant refusal of FRY to co-operate with the Tribunal on other matters had been circulated at the Security Council. But discussions and the possible adoption of the proposed resolution were shelved pending the outcome of last week's deadline.

Judging by the draft, a copy of which is in possession of Tribunal Update, the Security Council could for the first time in history impose sanctions against a Member State for its failure to comply with its obligations towards the Tribunal. Apart from "strongly condemn[ing] the continued failure of the FRY (...) and reiterate[ing] its demand that those arrest warrants be immediately and unconditionally executed," the draft also contains two sanctions precisely aimed at certain "senior officials [of FRY] and adult members of their families."

In Paragraph 4, the Security Council "Decides that all States shall prevent the entry into or transit through their territories of all senior officials of the FRY who are responsible for the failure to cooperate with the Tribunal and adult members of their families."

Paragraph 5 of the draft Resolution says: "[SC] Decides that all states, except the FRY, in which there are funds and financial resources of those senior officials (...) or of adult members of their families, shall require all persons and entities within their own territories holding such funds and financial resources to freeze them."

The list of "senior officials and adult members of their families" would, according to draft Resolution, be compiled by the un Secretary-General in consultation with the Tribunal. The sanctions would come into force if by the expiry of deadline set by the Security Council the FRY does not align its internal legislation with its obligations towards the Tribunal; does not execute arrest and transfer to The Hague of the "Vukovar Three"; and if it does not enable the unhindered investigation of Kosovo massacres.

It remains to be seen whether the Security Council will return to discussions on the draft resolution quoted, or, perhaps, consider that during the Rambouillet negotiations and preparations for the deployment of Nato troops in Kosovo, they have some more important unfinished business at hand with "senior officials and adult members of their families" than the Tribunal - even if both Tribunal and the Security Council are in fact dealing with the same lot.