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I. Co-operation with the International Criminal Tribunal for Yugoslavia

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Colin Warbrick
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Extract

The Security Council established the International Criminal Tribunal for the Former Yugoslavia (the Tribunal) by Resolution 827.1 It “determined” that the widespread and flagrant violations of international humanitarian law in the territory of the former Yugoslavia constituted a threat to international peace and security. Resolution 827 is a Chapter VII resolution. The Council “decided” that all States shall co-operate fully with the Tribunal and its organs and that they shall “take any measures necessary under their domestic law” to give effect to the resolution and obligations which arose under the Statute of the Tribunal.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 45 , Issue 4 , October 1996 , pp. 947 - 954
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. S/RES/827(1993), 25 May 1993. The Statute of the Tribunal is scheduled to the Resolution.

2. An Application for the Deferral by the Federal Republic of Germany in the Matter of Dusko Tadic also known by the names Dusan “Dule” Tadic, in International Tribunal … Yearbook 1994, p.39.Google Scholar

3. See Annual Report of the International Tribunal… (1994), paras.162–172, in An Application for the Deferral by the Federal Republic of Germany in the Matter of Dusko Tadic also known by the names Dusan “Dule” Tadic, pp. 122–124.Google Scholar

4. Tentative Guidelines for National Implementing Legislation of United Nations Security Council Resolution 827 of 25 May 1993.

5. See International Tribunal … Yearbook 1994, pp.155–189 for the texts of national legislation and pp.190–193 for the Agreement between the Tribunal and the US (not yet in force); also International War Crimes Tribunals Act, No.18 of 1995 (Australia); International War Crimes Tribunal Act, No.27 of 1995 (New Zealand); Loi No.95–1, 2 Jan. 1995, (1995) Rec. Dalloz Sirey (Legislation), pp.56–57 (France). I am most grateful to Chanaka Wickremasinghe for obtaining the texts of the legislation.Google Scholar

6. See Press Release, International Criminal Tribunal for the Former Yugoslavia, CC/ PIO/030–E, 6 02 1996: “President Cassese takes stock of current co-operation between Croatia, the F.R.Y. and the Tribunal.” The President has since written to the Security Council drawing its attention to the violation of Yugoslavia of this obligation of co-operation, CC/PIO/075–E.Google Scholar

7. Blaskic, Decision on the Motion of the Defence filed pursuant to Rule 64 …, Case No.IT–95–14–T, para.8.

8. One defendant, Aleksovski (who has been indicted in the Lasva Valley case), has been arrested under the legislation, CC/PIO/086–E.

9. The Federal Republic of Yugoslavia did transfer to the Tribunal two defendants, Drazen Erdemovic (who has pleaded guilty) and Radoslav Kremenovic (who was returned to Belgrade); see International Tribunal Press Release, PR053 (30 Mar. 1996) and CC/PIO/073 (15 May 1996). However, President Cassese has written to the Security Council about the lack of co-operation with respect to accused who have been indicted in the “Vukovar Hospital” incident. Case No.IT–95–13–R61.

10. According to a newspaper report, the acting President of Republika Srpska. Mrs Plavsic, said that it was contrary to its laws to hand over suspects to the Tribunal: Guardian, 3 07 1996, p.11.Google Scholar

11. The text of the Dayton Accords is in S/999(1995). The General Framework Agreement, Art.IX requires the parties (Bosnia–Herzegovina, Croatia and the Federal Republic of Yugoslavia—which was authorised to sign on behalf of Republika Srpska) to co-operate in the investigation and prosecution of war crimes.

12. S.I. 1996 No.716. The FCO provided a Memorandum on the Order for the Joint Committee on Statutory Instruments, which is now available. I appreciate the assistance of officials of the FCO in providing a copy.

13. Prosecutor v. Dusko Tadic: Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Case No.IT–94–1–AR72, paras.33–36.

14. See Guidelines, supra n.4, Art.6: “The [national court], after verifying that the requisite formal conditions are fulfilled, shall approve the transfer of an arrested accused to the custody of the … Tribunal without resort to extradition proceedings.”

15. But cf. Draft Agreement between the US and the Tribunal, supra n.5, Art.2(3): “A request for surrender of a person who is sought for prosecution shall also be supported by … information sufficient to establish there is a reasonable basis to believe that the person sought has committed the violation or violations for which surrender is requested.”

16. General Tihomir Blaskic, a Croatian, surrendered voluntarily to the Tribunal on 1 Apr. 1996. In the absence of Croatian legislation authorising co-operation with the Tribunal, it seems that the Croatian authorities had no power to transfer a Croatian national out of their jurisdiction. See, submission of Defence Counsel in Blaskic, Decision on the Motion of the Defence filed pursuant to Rule 64 …, supra n.7, para.3.

17. Arrest warrants are in two forms. Under r.55(B), they are transmitted by the Registrar “to the national authorities of the State in whose territory or under whose jurisdiction and control the accused resides, or was last known to be”. If such a warrant has not been executed, a Trial Chamber may issue an international arrest warrant under r.61(D) which “shall be transmitted to all States”.

18. Several provisions of the Order have to be extended or modified to apply to Scotland. This note is restricted to the provisions which apply in England and Wales. Cases from Northern Ireland will be dealt with at Bow Street, as they are in extradition: Memorandum, supra n.10, at para.5.

19. Order, Art.4(1). Provision is made for the execution of provisional warrants by Art.5.

20. idem, Art.23.

21. Idem, Art.6. The delivery order will be modified if the person has been convicted and sentenced by the Tribunal, when he will be returned to the State where the Tribunal has ordered that he be imprisoned.

22. An “International Tribunal Crime” is a crime in respect of which the Tribunal has jurisdiction under Arts.2–5 of its Statute: Order, Art.2.

23. Order, Art.6(4).

24. idem, Art.14.

25. idem, Art.6(S).

26. idem, Art.6(7).

27. See Decision, Order for the Withdrawal of the Charges against the Person named Goran Lajic and for his Release, Case No.IT–95–8–T.

28. See Rule 90 bis.

29. Krsmanovic, Order of Transfer to the Requested State, Case No.IT–96–19 Misc.1.

30. Order, Art.7(1).

31. idem, Art.7(3).

32. idem, Art.11.

33. Extradition Act 1989, s.12.

34. Order, Art. 13.

35. See Art.9 of the Statute and r.10.

36. S.I. 1974 No.1261, amended by S.I. 1975 No.1209.

37. Order, Art.22(2).

38. United Nations (International Tribunal) (Rwanda) Order, S.I. 1996 No.1296.

39. See Justice Goldstone's address, attached to CC/PIO/080–E.