Doc. 10528

26 April 2005

Prosecution of offences falling within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia

Motion for a recommendation

presented by Mr McNamara and others

This motion has not been discussed in the Assembly and commits only the members who have signed it

1.       The prosecution of war crimes remains a live issue for the countries of the former Yugoslavia. Cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) by the Republika Srpska of Bosnia and Herzegovina and by Serbia and Montenegro has not always been satisfactory, as described in Assembly Resolutions 1383 (2004) and 1397 (2004) respectively, and the EU recently delayed the start of membership negotiations with Croatia, citing insufficient cooperation.

2.       In a letter dated 17 June 2002 to the President of the Security Council, the Secretary General of the United Nations outlined a “completion strategy” for the work of the ICTY. The ICTY would in future concentrate on the prosecution and trial of the highest ranking political, military and paramilitary leaders, whilst transferring mid-level accused (who would previously have been tried in the Hague) to national courts. This strategy was endorsed by the Security Council in July 2002.

3.       Two conditions are necessary to fulfilment of the completion strategy: first, that all indicted suspects are transferred or surrender to the ICTY; and second, that national judicial mechanisms are competent to ensure the fair and effective administration of justice against accused persons.

4.       As to the first condition, there have been several developments in recent months, such as the resignation and voluntary self-surrender of the Prime Minister in Kosovo, following his indictment by the ICTY, as well as the transfer of a series of individuals from both Serbia and Montenegro and the Republika Srpska of Bosnia and Herzegovina. Other indicted persons, notably including Radovan Karadzic, Ratko Mladic and Ante Gotovina, however, remain at large: the President of the ICTY has stated that “the Tribunal will not close” before these three are tried.

5.       As to the second, Bosnia and Herzegovina recently established a specialist War Crimes Chamber, and in June 2004, the OSCE Mission to Croatia reported “improving conditions for the conduct of domestic war crime trials” in that country. A related issue concerns co-operation between the authorities of different countries; in this respect, there is the recent agreement between the prosecutors of Serbia and Croatia.

6.       Given these mixed developments, the Assembly resolves to study the question of prosecution of offences falling within the jurisdiction of the ICTY, both from the perspective of the continuing work of the ICTY itself and from that of domestic judicial mechanisms, and to make appropriate recommendations, including to the Committee of Ministers.

Signed (see overleaf)

Signed 1:

McNAMARA, Kevin, United Kingdom, SOC

BEMELMANS-VIDEC, Marie-Louise, Netherlands, EPP/CD

BINDIG, Rudolf, Germany, SOC

CILEVIČS, Boriss, Latvia, SOC

de ZULUETA, Tana, Italy, SOC

GROSS, Andreas, Switzerland, SOC

HOLOVATY, Serhiy, Ukraine, LDR

JUDD, Frank, United Kingdom, SOC

JURGENS, Erik, Netherlands, SOC

LINTNER, Eduard, Germany, EPP/CD

SHYBKO, Vitaliy, Ukraine, SOC

WOHLWEND, Renate, Liechtenstein, EPP/CD

1        SOC: Socialist Group

      EPP/CD: Group of the European People’s Party

      LDR : Liberal, Democratic and Reformers’ Group

      EDG: European Democratic Group

      UEL: Group of the Unified European Left

      NR: not registered in a group