7 EU support for the International Criminal
Tribunal for the former Yugoslavia (ICTY)
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| Council Decision renewing measures in support of the effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY)
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| Legal base | Article 29 TFEU; unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 19 February 2010
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| Previous Committee Report | None; but see (29497) HC 16-xiv (2007-08), chapter 8 (5 March 2008); and (29213) 15616/07, (29214) 15690/07 and (29427) —: HC 5-vii (2009-10), chapter 8 (20 January 2010)
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| To be discussed in Council | 1 March 2010 Competitiveness Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared; further information requested
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Background
7.1 The International Criminal Tribunal for the former Yugoslavia
(ICTY) was established by UN Security Council resolution 827(1993).
This resolution was decided on 25 May 1993 in the face of serious
violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1991, and as a response
to the threat to international peace and security posed by those
serious violations.
7.2 The ICTY's mission is to bring to justice those
responsible for serious violations of international humanitarian
law, render justice to the victims and deter further crimes, whilst
contributing to the restoration of peace by holding those responsible
personally accountable. Although judicially independent, the ICTY
relies on co-operation by States and international organisations
in order to carry out its mandate successfully, particularly with
regard to the collection of evidence and the detention and transfer
of accused persons.
7.3 The Stabilisation and Association Process is
the process devised by the EU to bring the countries of the Western
Balkans closer to the EU and to help prepare them for eventual
membership. The Stabilisation and Association Agreement (SAA)
is a key step on the path to EU membership — not only a
major practical and legal but, above all, a symbolic next step.
Previous consideration
7.4 Two years ago, the Committee cleared a further
12 month extension of Council Common Position 2004/293/CFSP, which
imposed an EU travel ban on persons who help those indicted by
the ICTY evade capture or otherwise obstruct the ICTY's effective
implementation of its mandate. No amendments were made to the
list of targeted individuals. These measures work in conjunction
with the EU asset freeze on all funds and economic resources belonging
to persons indicted by the ICTY imposed by Common Position 2004/693/CFSP.
7.5 In his Explanatory Memorandum of 28 February
2008, the then Minister for Europe at the Foreign and Commonwealth
Office (Mr Jim Murphy) stated that "supporting the mandate
of the ICTY is a central pillar of UK policy in the Western Balkans
region". He noted that the Chief Prosecutor of the ICTY makes
regular reports on the level of co-operation of relevant countries
with the tribunal, and said that "full co-operation with
the ICTY is a key condition for signature of Bosnia and Herzegovina's,
and Serbia's Stabilisation and Association Agreements (SAA) with
the EU." He also said that the UK and EU continued to exert
pressure on regional governments to improve their co-operation
with the ICTY, and that it was therefore important that the UK
play its part in supporting the ICTY's efforts to bring justice
to the countries of the former Yugoslavia by keeping up pressure
on those individuals wanted for trial, including on their support
networks.
7.6 At that time, the "Accused at Large"
on the ICTY website[14]
included Radovan Karadžiæ
and Ratko Mladiæ, who were generally
recognised as the most egregious of those involved in the horrors
that were perpetrated in the Balkans during the dissolution of
the former Yugoslavia. We noted that, hitherto, "full cooperation"
with the ICTY by Serbia had been seen as certification by the
ICTY of whole-hearted support by the Serbian authorities in seeking
their apprehension and surrender — it being the lack thereof
that had held up signature and implementation of Serbia's SAA.
We had no wish to hold up the EU's support for the ICTY —
on the contrary — and cleared the extension. Our concern,
however, was that the EU's vital support of the ICTY was being
undermined by a desire to compensate Serbia for her opposition
to the EU's then recent action in recognising Kosovo's declaration
of independence. We therefore considered it relevant to the then
upcoming debate in European Committee on Serbia and the accession
process in the Western Balkans, which we hoped would provide an
opportunity to explore what the Minister meant about full co-operation
with the ICTY being a key condition for signature of Serbia's
— and Bosnia and Herzegovina's — SAA.
7.7 That debate was centred on two separate Council
Decisions: the purpose of the first was to obtain Council approval
to the text of the SAA and "to engage the procedures for
the signature and final conclusion" of the Agreement; the
purpose of the second was to authorise signature of an Interim
Agreement, comprising the Community competence elements (trade,
agriculture, industrial and competition provisions of the SAA)
at the same time as the SAA, to come into force as soon as possible
after signature, to take account of the fact that ratification
of the SAA may take up to a year following signature.
7.8 In the event, they were resolved among Member
States in such a way that the 29 April 2008 GAERC approved the
Council Decisions, whereupon the two agreements were signed. On
the same day, European Committee B debated the documents and a
collection of annual progress reports on the Western Balkan EU
aspirants.[15]
7.9 Since then, the Committee had been engaged in
prolonged discussion with successive Ministers for Europe about
signature of these Council Decisions and, given differences among
Member States, on the signing of the Interim Agreement and its
ratification. As we have noted in the relevant Committee Reports,
we have had no concerns over the nature of the SAA or of its conclusion
with Serbia per se: however, what has bedevilled this process
all along has been the behaviour of the Serbian authorities with
respect to the ICTY. Although the ICTY had been prepared to indicate
to the Commission and Council that cooperation had improved sufficiently
to warrant continued negotiation and, subsequently, initialling
of a text, it was plainly not able to certify that "full
cooperation" had been obtained. The Committee's concern has
thus revolved, then and subsequently, around this associated ICTY
Conditionality. The most recent exchange with the Minister for
Europe is set out the relevant chapter of our Report on 20 January
2010.
7.10 In essence, on the basis of a 3 December 2009
report to the UN Security Council by the ICTY Chief Prosecutor
— described in his letter to the Committee by the Minister
for Europe as "Brammertz's most positive report on Serbia
to date" — the Government indicated its preparedness
both to sign and to begin the ratification process of the Interim
Agreement. This was because Mr Brammertz had assessed that:
— Serbia's
co-operation had continued to improve and develop;
— the Serbian authorities were providing
timely responses to requests arising during trials at The Hague
for access to documents and archives, with no requests outstanding;
— they had responded quickly to facilitate
the appearance of witnesses before the tribunal and made the necessary
arrangements to safeguard them;
— they were actively conducting search
operations for the two remaining indictees.
7.11 Mr Brammertz regarded this as "satisfactory".
The Government, however, judged that this met its own "full
cooperation" benchmark, and thus favoured signature and starting
the ratification process (which it confirmed in a Written Ministerial
Statement on 7 December 2009). The Conclusions subsequently adopted
by the Council were, however, significantly different —
signing the agreement, but not yet authorising the beginning of
the ratification process, with a further review in six month's
time, which we presumed would be after the next Brammertz report.
[16]
The draft Council Decision
7.12 This Council Decision will extend for a further
year the EU travel ban on persons helping those indicted by the
ICTY to evade justice or who otherwise obstruct the ICTY's effective
implementation of its mandate. Current measures expire on 16 March.
Again, no amendments will be made to the list of targeted individuals.
7.13 In his 19 February 2009 Explanatory Memorandum,
the Minister for Europe at the Foreign and Commonwealth Office
(Chris Bryant) notes that two persons indicted by the ICTY are
still at large, namely Ratko Mladiæ
and Goran Hadžiæ.
7.14 He also recalls that these measures work in
conjunction with the EU asset freeze on all funds and economic
resources belonging to persons indicted by the ICTY imposed by
Common Position 2004/694/CFSP, which is due to expire on 10 October
2010.
7.15 The Minister also reiterates that
— procedures
for designating individuals under the EU visa ban are fully compliant
with fundamental rights, viz:
- individuals may only be listed
where evidence exists that they are engaged in the activities
listed under Article 1 of Council Decision;
- individuals subject to a visa ban would be entitled
to challenge such a measure in the Member States' courts;
- in addition, Council Common Position 2004/293/CFSP
provides that Member States may grant exemptions from the travel
ban for specified reasons including, inter alia, where travel
is justified on the grounds of urgent humanitarian need;
— the
travel ban is enforced in the UK using secondary legislation under
Section 8B of the Immigration Act 1971 (as inserted by Section
8 of the Immigration and Asylum Act 1999) currently the Immigration
(Designation of Travel Bans)(Amendment) Order 2007, which will
require amendment to reflect the renewal.
The Government's view
7.16 The Minister supports the renewal in familiar
terms:
"Supporting the mandate of the ICTY is a
central pillar of UK policy in the Western Balkans region. The
Chief Prosecutor of the ICTY makes regular reports on the level
of co-operation of relevant countries with the tribunal. Full
cooperation with the ICTY constitutes an essential element of
the Stabilisation and Association Agreement between both Bosnia
and Herzegovina and Serbia and the EU.
"The UK and EU continue to exert pressure
on regional governments to improve their co-operation with the
ICTY. It is therefore important that we play our part in supporting
the ICTY's efforts to bring justice to the countries of the Former
Yugoslavia by keeping up pressure on those individuals wanted
for trial, including on their support networks. Extending these
restrictive measures through a Council Decision will support the
work of the ICTY and increase the likelihood of the successful
detention and trial of indicted individuals."
Conclusion
7.17 As before, we have no wish to hold up this
matter, and clear the document. But, in reporting it, we think
it important to remind the House of our enduring concerns about
the application of "conditionality" to the integration
and accession process.
7.18 We also note that we can find no trace of
the Common Position having been submitted for scrutiny a year
ago, when authorisation by the Council of the further 12 month
extension that is now coming to an end would have been required.
We ask the Minister to investigate this and explain what happened.
14 See http://www.icty.org/ for full details of the
ICTY's rationale and operations. Back
15
See http://www.publications.parliament.uk/pa/cm200708/cmgeneral/euro/080429/80429s01.htm.
for the record of that debate. Back
16
See headnote: (29213) (29214) and (29427): HC 5-vii (2009-10),
chapter 8 (20 January 2010). Back
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