Memorandum submitted by the Foreign and
Commonwealth Office on the Obligations Towards the International
Criminal Tribunal for the former Yugoslavia
As a Member of the United Nations, the FRY is
under an international legal obligation to co-operate with the
ICTY, which was set up under UN Security Council resolution (UNSCR)
827, a legally binding resolution adopted under Chapter VII of
the UN Charter. UNSCR 827 requires that "...all States shall
co-operate fully with the International Tribunal and its organs
in accordance with the present resolution and the Statute of the
International Tribunal and that consequently all States shall
take any measures necessary under their domestic law to implement
the provisions of the present resolution and the Statute, including
the obligation of States to comply with requests for assistance
or orders issued by a Trial Chamber under Article 29 of the Statute."
Article 29 of the ICTY Statute requires States
to comply without undue delay with any request or order including
the arrest or detention of persons and the surrender or the transfer
of the accused to the International Tribunal.
The domestic courts of the FRY do not have "prior
jurisdiction" over an indictee if he or she is also accused
of crimes against domestic law. Indeed, Article 9 of the ICTY
Statute states that "[t]he International Tribunal shall have
primacy over national courts. At any stage of the procedure, the
International Tribunal may formally request national courts to
defer to the competence of the International Tribunal in accordance
with the present Statute and the Rules of Procedure and Evidence
of the International Tribunal." Conversely, under Rule 11
bis of the Rules of Procedure and Evidence the Tribunal
may, if it appears appropriate in the circumstances, suspend an
indictment pending proceedings before the national courts.
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