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"The International Criminal Tribunal for the former Yugoslavia: Making a Difference or Making Excuses?"

Press Release · Communiqué de presse
(Exclusively for the use of the media. Not an official document)

The Hague, 13 May 1999


Please find below the speech given by Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the former Yugoslavia, at the Council on Foreign Relations in New York on 12 May 1999.


Distinguished Fellows, members of the Council, ladies and gentlemen, it is an honour to have been invited to discuss the International Criminal Tribunal for the former Yugoslavia with you. Too many Americans do not know about the work of the Tribunal or do not understand its relevance or, to put it bluntly, do not seem to care. Your mission at the Council is to promote American
understanding of international affairs. Thus, I feel that we are partners in this effort and I am delighted to be here.

Tonight, I want to try and give you a frank and honest assessment of the institution I represent, its history and its prospects. Against the backdrop of Kosovo, such a discussion may appear based on somewhat naive presumptions about the efficacy of the Tribunal. The deeply distressing reports coming out of there in the last weeks have led some observers to raise fundamental
questions about our record and role. But I wish to tell you that, although the war –both hot and cold- continues in much of the region, the Tribunal is essential for peace, real peace, both in the former Yugoslavia and beyond.

This century has been the bloodiest in human history. And, increasingly, civilians have become targets, rather than suffering the consequences of this warfare. In this century we have also witnessed a proliferation of international treaties designed to protect basic human rights even during the conduct of war, yet these rights have for the most part been ignored. Thus, a cycle of
impunity with devastating results has evolved which, I submit, can only be ended by the application of the rule of law, by holding individuals accountable for their illegal acts. This is what the Tribunal is doing. The precedent that it is now establishing has significantly altered the way the international community responds to such conflicts. The Tribunal’s experience indicates that
it is beginning to meet its potential.

To demonstrate this point, I will assess our record on three distinct levels: its operations; its impact on international relations; and its effect in the former Yugoslavia.

First, operationally. In the six years since it was established by the Security Council, the court has grown at a pace unimaginable to those who participated in its birth. In 1993, we had neither a physical nor a legal infrastructure. We had no means of investigating alleged crimes, no place to conduct trials or rules to guide the proceedings, no way to reach and protect witnesses
and no means of jailing those who were found guilty by the Tribunal. In our formative years we faced many obstacles. They ranged from inadequate funding to the lack of political will for the Tribunal to succeed. Some said that prosecutions were incompatible with the peace process. Some simply doubted that a court of law would help the process. Others could not envision conducting
criminal trials on an international level because of the difference between common law and civil law. Nevertheless, we persevered and have now emerged from the shadow of the naysayers.

The Tribunal is now fully functioning, holding trials and appellate proceedings on a regular basis. Our decisions make substantive findings on myriad legal issues, most of which have never before been considered by a court, or which have not been subject to legal review for decades. Examples are the applicability and scope of the Geneva and Genocide Conventions and the laws and
customs of war, the responsibility of military and civilian authorities in time of conflict and definitions of armed conflict, war crimes and the crime of rape.

This leads me to the second element of the analysis of the Tribunal’s performance – its impact on international relations. In interpreting dormant treaties and actually applying international humanitarian law, the Tribunal is developing that law. And that law, previously a skeleton of inter-related treaties, now has some flesh on it. This has increased the focus on the enforcement
of human rights. This development has taken place within States but has also affected the relationships between States.

Second, while it is axiomatic that the codification and implementation of an international legal system is subject to the vagaries of political expediency, the relationships forged between the ICTY and States and international entities such as NATO have made possible what was once impossible. An international court located hundreds of miles from the scene of the crimes can issue
arrest warrants against individuals residing in a foreign State’s jurisdiction. Those warrants are being executed by the States, or SFOR, and the accused sent to The Hague. I am not suggesting that this is a perfect system - you are aware that the majority of the ICTY’s arrest warrants have been completely ignored. Nevertheless, for the first time in history, individuals
suspected of violating international humanitarian law are facing the real possibility of trial and conviction. This development represents the foundation of a practical system of international criminal justice. It is obviously a very long road, on which the journey is measured in incremental steps. But the Tribunal constitutes the most significant progress to date in that

The third criterion by which the Tribunal’s record should be assessed is its effect on the former Yugoslavia. The court may be viable from an institutional point of view but is it achieving its mandated objective of helping to maintain international peace and security? Is it providing redress to those who suffered in the conflict and deterring others from committing further crimes?
In sum, is it facilitating peace through justice? Events in Kosovo provide a quick answer. But to interpret that tragedy as a failure of the Tribunal as an institution is to misunderstand our very nature and purpose.

No court can stop a war. The role of the Tribunal is to help to create the conditions that lead to lasting peace. By example, our trials demonstrate that respect for the rule of law is imperative for a peaceful society. By fostering trust among the population and faith in the institutions of the State’s government, the Tribunal can contribute to the emergence of a civil society as
the anchor of real peace.

Looking at our experience in Bosnia and Herzegovina, I believe that we have made substantial progress. Nevertheless, the continuing presence and influence of many of the individuals who are charged with the responsibility for the conflict have slowed the pace of post-war recovery. Those who first created conditions for war by using propaganda and terror to poison society, now block
efforts to rebuild that society. Although Bosnia and Herzegovina is being rebuilt by the international community, the presence of the "criminal element" makes

that effort all the more difficult. How is the woman gang-raped in a camp or the man tortured in a "detention centre" expected to have faith in the peace process when the perpetrators not only retain their freedom and authority but actually profit materially from their crimes? In mid-1997 SFOR began detaining indictees in Bosnia and Herzegovina, a process that continues to this
day. This has had an effect. Slowly, the Tribunal is being viewed as a reality. Widespread acceptance of its existence and recognition of the necessity of its role is beginning to take hold among victims and even alleged perpetrators. The goals of peace and international criminal justice are no longer seen as mutually exclusive. Rather, they are interdependent and complimentary. Many
say that the Tribunal will not make its mark until the indicted "leaders" are brought to justice. But this is an acknowledgement of the role of the Tribunal in the peace process, not a condemnation of it. It is the international community which has the enforcement power to exact compliance which is necessary to end the cycle of impunity. It must do so.

Despite the Tribunal’s operational development, its impact on international relations and its effect on the former Yugoslavia, impunity remains the norm. And what is happening right now in Kosovo is a direct consequence of such impunity. Without arrests, the Tribunal has been unable to prosecute many of those who are responsible for the conflicts in the former Yugoslavia.
Thirty-two publicly indicted persons remain at liberty, most in the Republika Srpska and the FRY. Would massacres in Drenica, Racak, or any of the other places whose names we now know for the wrong reasons, have happened if those in command and control did not believe that they would benefit from impunity? Would Arkan have laughed off the announcement of his indictment if there was a
certainty that being indicted would lead to arrest?

That there is no such certainty, notwithstanding the significantly increased publicity and political attention that the Tribunal has received in recent weeks, is, of course, beyond our control. The Tribunal relies totally on States and inter-State organizations. If in 1993 the Tribunal had received the assistance that it required to discharge its mandate efficiently and
effectively, it is possible that those responsible for the carnage that accompanied the collapse of the former Yugoslavia would have been prosecuted by now. It is possible that scenes that we witnessed earlier this decade in Croatia and in Bosnia and Herzegovina would not now be repeated in Kosovo.

Instead, the Government of Federal Republic of Yugoslavia has been allowed to ignore the Tribunal’s orders and requests. For months it has denied the Prosecutor access to Kosovo and repeatedly failed to co-operate with our requests and orders. In recent months, I have written to the Security Council four times and appeared before it twice urging action to address this
non-compliance. I have also addressed the General Assembly on this point. Both the Prosecutor and I have written to NATO and Contact Group members. We have both addressed the Peace Implementation Council overseeing the Dayton agreement. Yet, our efforts to forewarn the international community to use the law to deter what we are now witnessing were not supported. Justice, it seems, was
not a high priority.

This more than anything, indicates the Tribunal’s limitations. These must be borne in mind in light of the calls for the Tribunal to respond to Kosovo. As the crisis deepened, the Tribunal sought to maximize its deterrent role, on the one hand conducting trials, on the other highlighting the Federal Republic of Yugoslavia’s violations of international law. The Prosecutor has said
that she is investigating in Kosovo and if the evidence is there, she will issue indictments. But the best deterrent is certainty of punishment. This cannot be achieved unless arrest is the expected consequence of being indicted.

It has been said that great "powers don’t act in the Balkans. They react to atrocities." Indeed, the establishment of the Tribunal was just such a reaction. In the Kosovo crisis, the international community has again reacted, this time by promoting the Tribunal as the "be all and end all" solution. However, indictments now will not stop what is happening in Kosovo. It is already
too late. Thus, just as in the past it was wrong to de-emphasize the role of the Tribunal, it is just as erroneous to raise false expectations about the immediate efficacy of international criminal justice.

The Tribunal does have an important role to play in the resolution of the crisis but only if it is allowed to play its role properly and it is accepted that punishment is no substitute for prevention. It is encouraging to note, therefore, that criminal justice has moved up on the agenda in recent weeks. To ensure that this focus is sustained, it is imperative that any peace
agreement includes specific reference to the Tribunal. It must explicitly empower any implementation force to assist the Prosecutor in her investigations and to detain persons indicted by the Tribunal. Insufficient emphasis on this aspect of the Dayton agreement has seriously impeded Bosnia and Herzegovina’s recovery and the international community’s ability to disengage there. If
there is to be peace in the region, it is essential that those mistakes are not repeated in Kosovo. Indeed, correcting one mistake could still produce some deterrent effect in Kosovo. All indictees still at liberty in Bosnia and Herzegovina must be arrested and arrested immediately. Justice is not negotiable.

The Tribunal is founded on fine principles but in practice how can it actually render the justice that victims want and deserve? We are in The Hague, the affected communities are in the former Yugoslavia. The process must remain relevant to the people affected by the conflict. It is critical that they are informed about the Tribunal and its activities and have the opportunity to
apply its work to their own communities.

Even before NATO’s action began, the Tribunal was viewed negatively by a large segment of the population of the region. Virulent anti-Tribunal propaganda paints us as biased, slow and inefficient. In Croatia, we are employed as a political football in the presidential election campaign. In the Federal Republic of Yugoslavia, we are seen as yet another example of how the world is
bent on subjugating the Serbs.

The Tribunal lacks institutions such as a legislative forum, or a media which are part of the overall framework within which national criminal courts typically exist and which provide means of interpreting and implementing the results of criminal proceedings. We are, therefore, initiating an Outreach Program to boost the Tribunal’s public relations capacity in The Hague and to open
field offices in the former Yugoslavia. This is a critical enterprise, made more critical by recent events. After six years, our judicial infrastructure is complete and is functioning. We are now able to disseminate our work to its principal beneficiaries, to explain what we are doing and why.

You will note, however, that I am using the future tense to describe this project: the program must be supported from donations outside our regular budget. We, therefore, seek funding at a cost of 1.3 million US dollars to establish and run the program. The US Government has very generously agreed to provide 500,000 dollars and to help to encourage other States to contribute.
However, the moral imperative to end the violence in the region is shared by all, including the corporate sector. I am pleased, therefore that a major corporation has recently donated computer equipment worth three million dollars, which will substantially enhance our operating capacity.

The Tribunal has come a long way in a short time. In just six years we have built the foundations to discharge our mandate. The fact that this is still a long way off should not surprise anyone, much less be used to question our success or viability. When speaking here three months ago, Secretary-General Kofi Annan observed that justice and equal rights for all are the challenges
of humanity. These are the ideals that underpin the Tribunal. He stated they are "challenges with distant prospects and uneven results, fought against imponderable odds and rewarded only rarely." To meet this challenge, the Tribunal needs and deserves your continuing support and encouragement as it carries out its vital work. We will be rewarded but we must work together.

Thank you.