Mcdonald Reports To The Security Council Over Croatia's Refusal To Cooperate With The Tribunal

In a letter to the Security Council dated August 25 1999, she requested that it "take measures that are sufficiently compelling to bring the Republic of Croatia into compliance with its obligation under international law".

The letter followed a Request by Prosecutor Louise Arbour that Croatia be found in breach of its obligation to cooperate with the Tribunal and that it be reported to the Security Council (see Tribunal Update No. 136).

The Prosecutor's request related to the refusal of the Republic of Croatia to accept the Tribunal's jurisdiction over crimes allegedly committed during and in the aftermath of "Operation Storm" and "Operation Flash", and its subsequent refusal to provide her with information in relation to these operations.

"The Prosecutor has sought this evidence and information so that an investigation may be conducted into alleged criminal activity occurring in conjunction with and immediately after those campaigns", McDonald wrote in her letter to the security council.

President McDonald had previously noted that, while it was not for the President, but for a Trial Chamber to arbiter a dispute on the Tribunal's jurisdiction, she considered that "the Statute [of the Tribunal] and Rules of Procedure and Evidence clearly do not permit a State to thwart the conduct of an investigation by simply asserting that the Tribunal has no jurisdiction".

The President accordingly found the Republic of Croatia in breach of its obligation to cooperate with the Tribunal in its investigations and prosecutions, under Article 18(2) and 29(1) of the Statute.

Louise Arbour's request to have Criatia be found in breach of its obligations, also related to the failure of the Zagreb government to surrender and transfer two individuals indicted by the ICTY who were being held in the custody of the Croatian authorities (Vinko Martinovic-also known as "Stela"- and Mladen Naletilic - also known as "Tuta".)

In the meantime, Vinko Martinovic was surrendered to the Tribunal on 9 August 1999 and so in her letter to the Prosecutor the President states that, "with respect to this accused, the Republic of Croatia is now in compliance with its obligations..." However, The Republic of Croatia has refused requests by the Prosecutor to similarly transfer Naletilic.

McDonald accordingly found that the Republic of Croatia "is in non-compliance with its obligation pursuant to Article 29".

The Prosecutor's Request raised a third matter, namely the fact that Croatia had failed to respond to 13 outstanding requests for assistance of various kinds. However, McDonald declined "to make a finding that the Republic of Croatia is non-compliance with its obligation to provide evidence and information to the Tribunal".

Instead, the Tribunal's President invited the Prosecutor to first seek a "binding order" which would allow Croatia to assert its "national security" claims, and enable a judge to compare the many requests made by the Prosecutor before other Chambers and the action taken in response to these requests.

In her letter to the UN Security Council, McDonald noted: "I have made a finding, pursuant to Rule 7bis(B), that the Republic of Croatia has failed to meet its obligations under Article 29 of the Statute of the International Tribunal." The President recalled that reporting a State to the Security Council is an action of last-resort that should only be used when the cooperative process has been fully exhausted.

The Tribunal relies on the Security Council to bring non-cooperating states into compliance, and so McDonald concluded: "I respectfully request the Security Council to take measures that are sufficiently compelling to bring the Republic of Croatia into compliance with its obligations under international law."

It is now "completely for the Security Council to decide which measures are appropriate to be taken", according to Tribunal spokesperson Jim Landale. The Security Council may resort to a range of measures from a warning through to sanctions.

For its part, Croatia has rejected the conclusions of the Tribunal. It is claiming that its cooperation with the Tribunal has been correct, and announced it would be presenting its arguments to the Security Council.

Croatian justice minister Zvonimir Separovic has expressed his "surprise" at the decision to report his country and claimed Croatia will prove the opposite. He asserts that judicial proceedings were conducted in Croatia in relation to crimes committed during "Storm" and "Flash" operations and that "Tuta" cannot be handed over before the proceedings against him before a Croatian court are over.

"Upon the completion of this proceeding, "Tuta" will be handed over if the court concludes he is (physically) capable for that", Separovic added.

This is the first time the President of the Tribunal has formally reported the non-cooperation of Croatia.Such treatment has thus far been "reserved" for the FRY.

The FRY has been reported to the Security Council several times over the past several years for the refusal to surrender the officers of the former JNA charged with the massacre in Vukovar, and for disputing the jurisdiction of the Tribunal to investigate Kosovo crimes. Judging by the reactions of the Security Council thus far to such reports by the Tribunal, Croatia should not have a reason to be overly concerned.

The Security Council has previously satisfied itself with rebuking the state-violator (the FRY) with mild "presidential statements", refraining from resorting to harsher sanctions it has at its disposal.

Meanwhile, with Kosovo, the Western powers have made their attitude towards the obligation to cooperate with the Tribunal that much stricter. Croatia then nevertheless, has a reason to be concerned. Zagreb was openly warned about this last week by the

United States, that threatened it with "the gravest possible consequences" if it fails to cooperate with the Tribunal.

"We have made it clear to the government of Croatia at the highest levels that we expected it to fully cooperate with the ICTY and that failure to turn over 'Tuta' will have the gravest possible consequences," said the US State Department Spokesman James Foley.

The Tribunal Update has learned that even before President McDonald sent a formal report to the Security Council, the American administration had informed the EU and its member-states in writing that should Zagreb continue to treat the Tribunal in this manner, the US will be forced to treat Croatia as a "sanction state", and that it expects the same from the European allies

.