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War crimes prosecutor's report to the UN Security Council [ICTY]
War crimes prosecutor's report to the UN Security Council [ICTY]

Report of Carla del Ponte, Prosecutor of the ICTY, to the UN Security Council, November 23, 2004 [declaring that Serbia has continued to avoid its legal obligations, allowing up to 12 people wanted by the tribunal to live free in the country]. Excerpt:

…it has to be stressed that a number of obstacles which are outside of the Tribunal's control may still derail the completion strategy.

The first such obstacle is the lack of co-operation of States, mainly in the arrest and transfer of persons indicted by the ICTY. There are still 20 fugitives at large, and most of them should be tried in The Hague. There are however a few of them who could be tried by domestic jurisdictions, and the relevant motions for their transfer have already been filed or will soon be filed. Among the fugitives are three individuals mentioned repeatedly in Security Council resolutions, unfortunately to no avail so far: Radovan Karadzic, Ratko Mladic and Ante Gotovina. In addition to these three key indictees, the other most senior fugitives are Borovcanin, Pandurevic, Popovic and Nikolic, who have been indicted for the Srebrenica genocide, but also the four generals Lukic, Lazarevic, Pavkovic and Djordjevic, indicted for their direct individual responsibility, as well as for their command responsibility in the crimes committed in Kosovo in 1998 and 1999. The objectives of the Tribunal, as established by the Security Council, will not be fulfilled before these accused are tried in The Hague. The Ministers of the European Union made the same assessment when they stated, on 12 July 2004, that "the work of the ICTY would not be completed without the arrest and transfer to The Hague of key indictees such as Radovan Karadzic, Ratko Mladic and Ante Gotovina."

Furthermore, the delays in the arrests and transfers of these fugitives make the planning of the trials more complicated and undermine judicial efficiency, as it is not possible to join similar cases in one trial. For instance, Karadzic could have been tried together with Momcilo Krajisnik, another former senior leader of Republika Srpska within Bosnia and Herzegovina, whose trial is on-going. Lukic, Lazarevic, Pavkovic and Djordjevic can still be tried together with Milutinovic, Ojdanic and Sainovic, who are waiting their trial in the Tribunal's detention unit. The situation is similar for Gotovina. His two co-accused, Cermak and Markac, are also waiting their trial. Borovcanin, Pandurevic, Popovic and Nikolic should be tried with Beara, who was arrested and transferred recently. It is therefore of crucial importance for the completion strategy timeline that these arrests be carried out as soon as possible so as to avoid duplication of efforts and waste of resources.

The governments of Croatia, Serbia and Montenegro and Bosnia and Herzegovina have the main responsibility in bringing these fugitives to The Hague. A vast majority of them, probably more than a dozen, live freely in Serbia. Prime Minister Kostunica has made it clear that he is not willing to arrest fugitives, but only to try to convince them to surrender voluntarily. On 13 July, the sealed indictment against Goran Hadzic, the former President of the so-called Republika Srpska Krajina, in Croatia, was given to the relevant authorities in Belgrade. They were also provided with the precise whereabouts of Hadzic. Only hours later, my investigators observed that he was informed and left immediately. He has since disappeared. On 8 October, detailed information about the location of Ljubisa Beara, a close aide to Ratko Mladic indicted in 2002, was forwarded to the Serbian Prime Minister. Beara did not oppose resistance to his arrest, and he was transferred to The Hague in the night of 9 October. Obviously, this arrest happened only because my office provided all information on the fugitive's location, and because Belgrade knew that we were monitoring Beara's residence. Furthermore, I was due to address the Ministers of the European Union two days later. Only such immediate pressure seems to produce results. However, my office can not be expected to do the same for each and every fugitive! Furthermore, for their own domestic political reasons, the Serbian authorities presented this arrest as a voluntary surrender. They underlined thereby their official policy, which is that all fugitives should voluntarily surrender. But this policy has not produced any result so far, and it is in blatant contradiction with the international obligation of the country, namely Article 29 of the ICTY Statute and numerous Security Council resolutions. The Serbian Government has deliberately chosen to ignore its legal obligations. The consistent failure of Serbia to cooperate was again brought to the attention of the Council on 4 May 2004 in a report forwarded by the President. In the meantime, the Serbian Government's attitude of defiance towards the Tribunal, which challenges also the Council, has not changed.

Read the full text of the report here. Reported in JURIST's Paper Chase here.