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The ICTY and the Truth and Reconciliation Commission in Bosnia and Herzegovina
Please find below the full text of President Claude Jorda’s speech made on 12 May 2001 in Sarajevo.
Mr. President, Ministers, Excellencies, Ladies and Gentlemen
It is a great honour for me to address you at this conference on the establishment of a truth and reconciliation commission for Bosnia and Herzegovina. I am extremely grateful to you for having invited me to participate and for having involved the International Tribunal in your work from the very outset. My presence here along with Mr. Gavin Ruxton, the representative of the Office of the Prosecutor, bears witness to the importance we attach to your initiative. The comments on your draft law which we recently sent to you are further proof of this.
I would first say that, as the President of the International Criminal Tribunal, it is not for me to comment on whether it is appropriate or politically legitimate to establish a commission of this sort. This is a national initiative and, as such, falls within your sovereign province. The initiative, however, cannot completely ignore the international context of which it forms a part, in particular, the Dayton Peace Accord signed in Paris on 14 December 1995 and United Nations Security Council resolution 827 establishing the International Tribunal which was passed in New York on 25 May 1993.
As President of the International Criminal Tribunal, I consider it my duty to ensure that this national initiative not run counter to the mission of the Tribunal and that it be consonant with the powers conferred on the Tribunal by the Security Council. I also believe it appropriate to reflect on a system for reconciliation which complements the work of the International Tribunal and which allows for a more effective contribution to the reconstruction of national unity without which democracy and deep-rooted lasting peace are impossible.
In this spirit, I will begin by recalling briefly the objectives of the International Tribunal and, in particular, the limitations on its scope of action. This will allow me to review the functions which, in theory, should fall to the truth and reconciliation commission in order to supplement and, if necessary, to reinforce the International Tribunal in its mission of reconciliation. In light of these general considerations, I will then tell you more specifically what I think about the draft law which, although significant in terms of the progress it represents, appears to give the Commission powers similar to those of the International Tribunal and which, to my mind, overlap certain aspects of its mandate.
1) The work of the truth and reconciliation commission must be complementary to the work of the International Tribunal
Security Council resolution 827 confers on the International Tribunal the power to punish serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 so that it may contribute to restoring and maintaining the peace. Stated otherwise, its mission is to promote reconciliation through the prosecution, trial and punishment of those who perpetrated war crimes, crimes against humanity and genocide. By ensuring that people are held individually responsible for the crimes they committed, the International Tribunal must prevent entire groups – be they national, ethnic or religious – from being stigmatised and must ensure that others do not resort to acts of revenge in their search for justice. It must neutralise the major war criminals and preclude them from sustaining a climate of hatred and virulent nationalism which will inevitably lead to future wars. By hearing the voices of the victims in a solemn but public forum, it must assuage their suffering and help them to reintegrate into a society which has been reconciled. Finally, by establishing the legal truth on whose basis society can take shape, the International Tribunal must prevent all historical revisionism.
The scope of the International Tribunal’s "peace-making" is nonetheless limited. It cannot try all the perpetrators of serious violations of humanitarian law committed during a conflict which lasted more than five years. As you can easily understand, doing so would be physically impossible and, more importantly, require far too much time. In the long term, this would risk undermining the reliability of the testimony and do damage to the credibility of the International Tribunal. Ideally, the Tribunal’s priority should be to try the highest ranking military and political leaders, that is, those who through the great responsibilities which were theirs and the seriousness of the crimes ascribed to them by the Prosecutor truly endangered international public order. Nor can the International Tribunal hear the tens of thousands of victims. Only those considered useful towards the establishment of the truth are invited to testify and even they cannot claim compensation for the harm they suffered. It is not the mission of the International Tribunal to analyse all of the historical, political, sociological and economic causes which converged to give rise to the war. Instead, it must review what happened only from the specific angle of the criminal responsibility of the perpetrators. Finally, the International Tribunal alone cannot accomplish all the work of memory required for the reconstruction of a national identity.
Its work must first be sustained by the national courts which, moreover, have already committed themselves to carrying out their mission. This may also include initiatives – such as the setting up of a truth and reconciliation commission - which derive from civilian society and whose primary purpose is to reweave thread by thread the fabric of that society and reconstitute what I would call the "desire to live together".
How then can the work of a commission supplement the "peace-making" activity of the International Tribunal? Allow me to take up one by one the four limitations on the scope of its action which I have just mentioned and, in relation to each of these, examine what role I believe the commission should play in order to achieve them.
- First limitation on the activity of the International Tribunal: the fate of the "lower ranking executioners". Since they are not a priority for the International Tribunal, those who physically carried out the crimes should, in my opinion, be encouraged to participate voluntarily in the work of the truth and reconciliation commission and, should it prove necessary, admit to their crimes before it. Confessions of this sort have an important symbolic value and promote national reconciliation. They constitute the unequivocal proof of the fact that mass crimes were committed and represent a form of recognition of the victims’ pain. Still, these confessions must in no way lead to an amnesty as was authorised, for instance, before the truth and reconciliation commission set up in South Africa at the end of the apartheid years. Amnesty in fact runs up against fundamental moral problems, infringes the very mission of the International Tribunal and calls into question a major accomplishment of these last years – the refusal to grant immunity for offences like war crimes, crimes against humanity and genocide. In addition, an amnesty would result in a two-tier justice system: one for the major criminals and one for those who carried out the orders. This would be difficult to justify vis-à-vis the universal principles of human rights. However, in order to encourage the "lower ranking executioners" to participate in the process of national reconciliation, it might prove necessary to allow the commission to make recommendations to local prosecutors and, in some cases, even to the Prosecutor of the International Tribunal as to what should be done about the prosecution of persons who have confessed all their crimes before it. While it appears unlikely that such recommendations would convince the Prosecutor to withdraw an indictment against a high level accused, nevertheless may be considered as mitigating circumstances for sentencing purposes.
- Second limitation on the activity of the International Tribunal: reparations for harm suffered by the victims. I feel that the truth and reconciliation commission has a fundamental role to play in respect of reparations for harm suffered by the victims which, as I have already said, is not a priority for the International Tribunal. Upon collecting the statements of many victims – who must represent different ethnic, political or religious origins – which would then be placed into a database, the commission should be in a position to propose to the political authorities forms of symbolic reparations which take into account thecollective nature of the harm caused by the war. Among various possibilities, I have in mind setting up educational programmes, creating memorial museums or film archives which could, for example, be used to prepare multimedia materials. A compensation fund should also be made available to the commission so that it may address the most urgent needs of the populations affected by the conflict.
- Third limitation on the activity of the International Tribunal: analysis of all the causes of the war. One way of completing the Tribunal’s work in this regard, after having heard witness testimony, is to allow the commission to perform detailed analyses of the historical, political, sociological, and economic causes of the splits in Bosnian society which gave rise to the conflict. This analytical work must be carried out first and foremost as a pedagogical exercise. It must educate the generations of today and tomorrow and teach them a lesson in history while also possibly implementing a programme of national mobilisation. Such work, however, must in no manner lead the commission to determine the criminal responsibility of the perpetrators of war crimes and then punish their action. That is the purview of the International Tribunal.
- Fourth limitation on the activity of the International Tribunal: performing the work of undiluted memory. The truth and reconciliation commission should also be a forum open to all. The forum should be covered by the media and be a place for collective discussion about the past. Its ultimate objective would be to fashion a collective memory of the war, that is, oneshared by all the citizens of Bosnia and Herzegovina whether Serb, Muslim or Croat. I am convinced that, step by step, such discussions could help to bring back to life the national unity without which there can be no democracy in the Balkans.
I will conclude my remarks by emphasising the simultaneously complementary and distinct roles which the truth and reconciliation commission must play in respect of the International Tribunal. Admittedly, both institutions will be called upon to examine the same facts with the common perspective of contributing to a deep-rooted lasting peace. Unlike the Tribunal, however, which because of its very essence must view the situation from the standpoint of criminal justice, the commission must take up its tasks from the pedagogical and historical perspective of reconstructing the national identity.
2) The mandate of the truth and reconciliation commission must not be similar to that of the International Tribunal
I will only touch upon the observations which the International Tribunal has made about the draft law. These were forwarded to you last week. Above all, they are meant to be constructive and include several concrete proposals.
I wish only to underscore the fact that, though I support your initiative, I am also concerned that the most recent draft law seems to grant to the commission functions and powers similar in many ways to those of the International Tribunal. For this reason, I do not believe that the commission is merely the complementary organ about which I was speaking a moment ago. I am also mindful of the fact that the draft law fails to define clearly the commission's obligations to the International Tribunal.
I point out, for instance, that the language of the draft - often very similar to that of the Statute of the International Tribunal - implies that the truth and reconciliation commission will have judicial powers which belong exclusively to the International Tribunal. Very important terms, important because they define the objectives (Article 2) and tasks (Article 6) of the commission such as "establishing the causes, nature and extent of human rights violations" and "establishing political and moral responsibility of individuals" are fraught with powerful legal connotations and, in my view, attribute to the commission powers very different from those whose purpose is to ascertain the general causes of the war of which I spoke at the start of my address.
I also note that the commission appears to be vested with real investigative powers. While investigating does not fall within the exclusive domain of the Prosecution, the Prosecutor nevertheless has primacy with respect to national jurisdiction in this area. Even though the commission is not bound by this principle, the draft law must take it in consideration.
It also appears that the Commission may have the authority to demand that it be provided with all information it considers useful for its mission, which you will agree, infringes on the activity of the Prosecutor.
All this confuses the role of the commission and, in addition, may run the risk of infringing the International Tribunal's independence and of proving extremely prejudicial to it in the long term. This is why I am suggesting a redefinition of the objectives, mandate and tasks of the commission so that they will be more in keeping with the conception I put forward in the first part of my address. The idea is to ensure that the commission is an organ truly complementary to the International Tribunal.
I would also point out that your draft law provides no provision forbidding amnesty for the perpetrators of war crimes and crimes against humanity even if they have actively co-operated with the commission.
To define the obligations of both the commission and the International Tribunal, I suggest that a provision expressly state that the commission will not interfere in any way in the judicial activity of the International Tribunal and that it will provide to the Tribunal all the public or confidential information and documents it requires, maintain close contacts with its investigators and authorise a liaison officer from the International Tribunal to attend its hearings.
Allow me to conclude by saying that I am convinced that the International Tribunal can make a contribution to the process of national reconciliation but that it is especially conscious of the limitations on its activity. This is why I am pleased by your plan to establish a truth and reconciliation commission in Bosnia and Herzegovina.
Bear in mind however that its mission of reconciliation would be seriously compromised if the highest political and military accused were not arrested and tried by the International Tribunal before the completion of its work. Therefore, it is imperative that the commission and the Tribunal accomplish their respective mission jointly, which renders necessary the prompt arrest and transfer of all accused to the Tribunal.
Above all, may the establishment of the truth and reconciliation commission in Bosnia and Herzegovina mirror the concerns of every facet of Bosnian society and allow all the victims to understand that they have a place in its activities so that they, once again, find the will to live together and see a reason to construct a common future.
Thank you for your attention.
International Criminal Tribunal for the former Yugoslavia
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