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Action urged regarding non-cooperation with ICTR and ICTY

Letter to Security Council Members

Members of the UN Security Council

Your Excellency:

Next week, reports are due to the Security Council on the work of the International Criminal Tribunal for Rwanda (the ICTR)and the International Criminal Tribunal for the former Yugoslavia (ICTY). Both Tribunals are experiencing serious problems because governments are refusing to honor their legally binding obligation to cooperate as established by the Security Council resolutions and the Statutes of the Tribunals. It is imperative that the Security Council support the Tribunals and reiterate the obligation of all United Nations Member States to cooperate fully with them. These instances of non-cooperation put the burden on the Security Council to act decisively to ensure compliance with its own resolutions in support of international justice.

Non-cooperation with the ICTY

Regarding the ICTY, we are concerned about the lack of cooperation by the Federal Republic of Yugoslavia (FRY) on several fronts. Key among the obligations to cooperate is the obligation to arrest and transfer an accused found on a state's territory. A disturbing number of people indicted by the ICTY are still at large in the FRY, including, most notably, Ratko Mladic. Mladic, former military commander of the Bosnian Serbs, has been charged with genocide in connection with the Srebrenica massacre where more than 7,000 persons are believed to have been killed or executed. Other indictees still at large in the FRY include a sitting President of Serbia and three former Yugoslav army officers. Also believed to be in the FRY are several Bosnian Serbs accused of war crimes, crimes against humanity, and, in the case of one accused, genocide against Bosnian Muslims in Srebrenica, Sarajevo, Foca, and Visegrad, during the 1992-95 war.

We also share the concern expressed by the Tribunal about provisions of the FRY's law on cooperation that purport to limit the government's obligations to cooperate with the ICTY to cases in which indictments were issued prior to passage of the law. We appreciate the important role that domestic war crimes trials may play as a complement to ICTY proceedings. And the Office of the Prosecutor has clearly indicated its intention to refer appropriate cases to domestic courts. At the same time, it must be made clear to the FRY authorities that their U.N. commitments oblige them to cooperate with the ICTY in cases in which the Tribunal determines to exercise its jurisdiction, regardless of the date the indictment is issued. We are also concerned by the FRY's persistent unwillingness to provide to the Tribunal documents in its military archives.

Although the Security Council has not been seized with Croatia's lack of cooperation, we also want to highlight Zabreb's failure to arrest and transfer retired general Janko Bobetko, indicted by the tribunal on August 23 for war crimes committed against Croatian Serbs in 1993. The Croatian government has tried to justify its refusal to surrender Bobetko by citing the Croatian constitution, but national constitutions cannot supersede legal obligations imposed by the Security Council. We are also troubled by Croatia's failure to facilitate the apprehension of former Croatian general Ante Gotovina, indicted in July 2001 for crimes during and after Operation Storm, the 1995 military operation that left several hundred thousand Croatian Serbs as refugees. Gotovina is believed to have been in Croatia over the course of the past year since his indictment. The President of Croatia, Stipe Mesic, has been the only Croatian official publicly supporting full cooperation with The Hague in this matter, but he lacks executive authority to ensure cooperation.

Non-cooperation with the ICTR

On July 23, 2002, the ICTR prosecutor reported to the Security Council that the government of Rwanda was not cooperating with the Tribunal in several areas, including facilitating the travel of witnesses and providing access to documentary materials. According to the prosecutor, these problems began shortly after she announced that several of the Rwanda Patriotic Army (RPA) soldiers would soon be indicted for atrocities committed in 1994. By refusing cooperation, the Rwandan government intended to pressure the prosecutor to end or at least suspend investigations into RPA atrocities. Under Resolution 955 (1994), the Security Council empowered the Tribunal to investigate such crimes, including "systematic, widespread and flagrant violations of international humanitarian law."

In 1994, the RPA killed thousands of civilians, in the process committing war crimes and crimes against humanity. These crimes have been well-documented, including by a U.N. Commission of Experts, which concluded that the RPA had "perpetrated serious breaches of international humanitarian law" and "crimes against humanity."

The Rwandan government has agreed that crimes were committed but has said that it has conducted or will conduct its own prosecutions of them. In the six years since it was established, this government has brought to justice only a few dozen RPA soldiers accused of war crimes. Most of those found guilty have received minimal sentences. Rwandan authorities recently instituted gacaca jurisdictions for popular justice. Although the law establishing these courts provides for them to try war crimes and crimes against humanity as well as genocide, Rwandan authorities have directed them to consider only cases of genocide- that is, crimes by forces other than the RPA.

In recent weeks, the Rwandan government has increased its cooperation to the extent of permitting some witnesses to travel to Arusha to testify. In an apparently related development, the prosecutor has in fact suspended investigation of RPA crimes. If the partial reduction in obstacles to the travel of witnesses results from an explicit or implicit quid pro quo, these developments represent a serious infringement of the independence of the prosecutor.

The Rwandan government has also submitted to the Council its own complaints about the operations of the ICTR. Certainly there are aspects of ICTR operations that could and should be improved, but a government cannot be permitted to take failings in the operation of a U.N. institution as an excuse for not fulfilling Chapter VII obligations to cooperate with that institution.

If the Security Council chooses to address operational problems of the ICTR, it should treat this issue apart from the far weightier problem of governmental non-cooperation, a problem now hampering both institutions created by the Council.

Human Rights Watch urges the Security Council to take consistent action supporting both Tribunals. The Security Council should adopt language reminding all states of their obligations to cooperate fully with the Tribunals.

I thank you for your attention. HRW remains at your service should you desire further background on this important matter.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch

Joanna Weschler
United Nations Representative
Human Rights Watch

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