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the "Dayton" Peace Implementation Council:
"The law is not subject to expediency...there must be no impunity...
If the tribunal is not allowed to function effectively,
it will not have failed. It will have been failed"
The President of the International Criminal Tribunal for the former Yugoslavia, Judge Gabrielle Kirk McDonald, addressed earlier today the Plenary Meeting of the Peace Implementation Council in Bonn (Germany). The Council oversees the implementation of the 1995 Dayton/Paris peace agreement for Bosnia and Herzegovina.
President McDonald delivered the following "abridged" Statement which we publish in full. President McDonald’s longer Statement, which was distributed to the delegates, is available upon request at the Press and Information Office; it is also released on the ICTY Internet Homepage (http://www.un.org/icty).
"I am honoured to have been invited to participate in and to address this Plenary meeting. The Tribunal, when established, existed only in the conscience of the international community. Today, it is fully operational: it has physical form, a code of international criminal procedure and a body of case law. At The Hague, we have created from uncut cloth a functioning criminal institution.
Yet, many of the difficulties that were present four and a half years ago persist. The Council and its members have in the past repeatedly acknowledged their existence and the threat that they pose, both to the Tribunal and to the progress of peace. It is clearly an outrage that those charged with responsibility for unimaginable atrocities continue to flout the rule of law. However, if we continue focusing only on problems, rather than on the need to develop solutions, the Tribunal cannot fulfil its mission. Therefore, I would respectfully suggest that, rather than concentrating on the non-compliance of certain States and Entities, it is more productive to direct efforts towards those existing means which are designed to bring about compliance.
Tribunal is the golden thread that runs through the cloth of the peace process. It is an attempt to ensure respect for the principles of equality of all human life, the universality of justice and consistency in the application of the law. The Tribunal facilitates accountability, a defining characteristic of a mature and functioning society. Founded on a moral imperative to redress wrongs, this is the method by which the wounds of cleaved communities are healed and the infliction of further wounds is deterred.
The basis for these principles, the law, is not subject to expediency. There must be no impunity for genocide, crimes against humanity or war crimes. The Tribunal’s success depends on the prominence which States, acting individually and collectively through fora such as this one, attach to this moral principle.
The Tribunal does not exist in a vacuum: this Council has a particular mandate and responsibility, on behalf of the international community, with respect to the realisation of peace in the former Yugoslavia. We thus look to you for the support necessary to make our mandated contribution to that process.
Under the terms of Security Council Resolution 827 and our Statute, States are under an obligation to co-operate with the Tribunal, and may offer to accept for imprisonment persons convicted by the Tribunal. Our nascent witness protection program affords a further opportunity for States to make a practical contribution to the effective functioning of the Tribunal. However, many States have been slow to fulfill this obligation or to recognise this opportunity to offer assistance. I therefore call on you today, as the representative of the international community, to assist us, individually as States by expediting the passage of implementing legislation and the conclusion of agreements for the enforcement of sentences and the protection of witnesses, and collectively by urging other members of the international community to render such assistance.
Beyond the practical, it would be a grave mistake to view the arrest of those already indicted and the judicial reckoning of their alleged crimes as representing the totality of what is necessary to remove the dark shadow of impunity. Nevertheless, it is axiomatic that all indictees should be arrested and transferred for trial. Yet, it is also the principle of law that all accuseds are innocent until the allegations against them have been found to have been proved beyond reasonable doubt. As judges, we must not demonise particular indictees.
This also detracts from our ability to achieve our goal. If the Tribunal is not allowed to function effectively, it will not have failed. It will have been failed. The international community, and in the process, this Council, will have forsaken its commitment to the rule of law. Moreover, this will affect not only the Tribunal. If, as has been said, our Tribunal is a laboratory for the permanent criminal court, that institution will be rendered ineffective before its very creation.
It is therefore encouraging to note that since the last Plenary meeting of the Council, efforts have been directed towards solutions rather than problems. Focusing on those solutions has yielded results. However, I urge you to take more than the rather tentative steps that we have witnessed to date on this path, lest this enterprise be lost. If those who are able do not take effective action to remove the cancer of criminality that stains every strand of the cloth of peace, in the years ahead the cloth itself will unravel. The colossal efforts which have been invested in rebuilding the region will have been wasted and the process of reconciliation will falter.
If those who perpetrated the most unspeakable affront to the dignity of humankind are not to be held accountable before the bar of humanity, the law will have been abused and debased. In ensuring that this does not occur, certainly, the Parties to the General Framework Agreement have the primary responsibility for discharging their legal obligation of full co-operation with the Tribunal. However, the international community cannot remain hostage to the effects of non-compliance. As a group of States and organisations committed to the peace process, it is time for you to consider which course to take: to overcome the obstacles that remain, or to sacrifice what is the very essence of civilisation. If you choose the latter, humanity will forever bear the stain of inaction."
International Criminal Tribunal for the former Yugoslavia
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