Remarks by Judge Gabrielle Kirk McDonald, President of the International Criminal Tribunal for the Former Yugoslavia, to the Peace Implementation Council Plenary Meeting in Madrid.
Excellencies, Ladies and Gentlemen. It is my honour to report to the Peace Implementation Council on behalf of the International Tribunal.
In the last 12 months, the Tribunal has grown exponentially. There are 26 accused in custody and one on provisional release in the Republika Srpska. We have three courtrooms, as opposed to one at the end of 1997. Those facilities are in use every day, hearing four trials, two appeals and six pre-trial proceedings. This expansion led the Security Council in May to increase the number of judges to 14. The three new judges took up office in November and are already busy working on cases.
Two of our Trial Chambers recently rendered the Tribunal’s fourth and fifth judgements, convicting one accused of committing war crimes in the Lašva River Valley and three of crimes in the Čelebići camp in central Bosnia. In the latter case, one individual was acquitted. The Tribunal has thus proved itself. It is a fully-functioning international criminal jurisdiction, capable of providing fair trials and applying the highest standards of impartiality and objectivity.
Recent statements by officials of Bosnia and Herzegovina, however, indicate how much work remains to be done within the former Yugoslavia to establish that the Tribunal is an integral part of the solution to the devastation wreaked by the conflict. It has been asserted that the Tribunal seeks to impose collective accountability, while following the arrest of General Krstić, it was stated that "every Serb is a potential war criminal". The Tribunal welcomes the responses of the Office of the High Representative (OHR) to these incorrect statements which denigrate and politicise our work. No-one, either at this table or in the States of the former Yugoslavia, should have any doubt: the Tribunal prosecutes individuals, not ethnicities. Only those who have committed crimes within its jurisdiction are subject to investigation, indictment and prosecution. That is what justice and the Tribunal’s mandate demand. And only with justice will come real, lasting peace.
We are moving closer to this goal, but only slowly. Misrepresentations about the Tribunal create mistrust. Mistrust within communities ensures distrust of the Tribunal. If our work is not relevant to those affected by the conflict, the Tribunal’s important substantive jurisprudence will have little practical effect on the peace process. Our decisions and findings must be known and understood by the peoples of the region, not just by international legal academia. Thus, in 1999, the Tribunal will begin a comprehensive outreach program. We aim to engage people and their communities struggling to come to terms with the legacy of the past decade. We will work with them, establishing direct channels between The Hague and the region. This will enable us to provide detailed and accurate information on our activities and findings and explain how both relate to what has happened to those societies. This effort, however, will require resources and political and logistical assistance from States and organisations present today. Building on the close relationships already forged with OHR, UNMIBH and other agencies will, therefore, be crucial and we are grateful to all for their assistance to date, in this and in other matters.
Mr. Chairman, so many speakers have acknowledged the need for all indictees to be transferred to the Tribunal. For that I am grateful, however, I wish to refer to a continuing obstacle to that requirement.
As we close the third year of peace implementation, the problem of non-co-operation looms larger than ever. In particular, the authorities of the Republika Srpska and the Government of the Federal Republic of Yugoslavia persist in refusing to arrest and transfer indictees on their territory to the Tribunal, while the latter also refuses to allow the Prosecutor to enter Kosovo to conduct investigations. Although SFOR continues to assist the Tribunal with respect to the Republika Srpska, the Prosecutor believes that more than 25 indicted individuals remain at liberty there. I urge the PIC, member States and organisations to continue in your efforts to ensure that they are unable to enjoy impunity, and the Republika Srpska is unable to flout your will, any longer.
There is, however, no analogous enforcement mechanism in the Federal Republic of Yugoslavia. Thus, the obstructionism by its Government has far reaching consequences for our ability to discharge our mandate. Security Council resolutions 1160, 1199 and 1203 reaffirmed the Prosecutor’s right to investigate in Kosovo and reconfirmed that the Federal Republic of Yugoslavia is legally required to co-operate with the Tribunal. Resolution 1207 reiterated this and, moreover, required the Government to surrender immediately and unconditionally the three individuals indicted for the murder of 260 unarmed men during the attack on the city of Vukovar in 1991. I have written to the Security Council and briefed its members some five times in the past 12 weeks on these matters. I have also written to the heads of government of the Steering Board States here today, requesting that you take effective action to bring about the Federal Republic of Yugoslavia’s immediate compliance.
The response of the Government of the Federal Republic of Yugoslavia has been to cite provisions of its domestic law prohibiting the "extradition" of its nationals. It now refuses to answer our enquiries at its embassy in The Hague. Rather a military court proceeding has been scheduled in Belgrade, where the three indictees will testify, on Thursday. This clearly contravenes resolution 1207, which expressly "affirms that a State may not invoke provisions of its domestic law as justification for its failure to perform binding obligations under international law". As part of this clear disregard of the primacy of the Tribunal, the Government has further requested the Prosecutor’s case-file for its use at the hearing. Last week, a Trial Chamber issued a formal request for the deferral of the case to the Tribunal, as provided for in our Statute and Rules. While the Federal Republic of Yugoslavia has yet to respond, it is able to defy the will of the international community without sanction.
I wish to be very clear. The Government of the Federal Republic of Yugoslavia is blatantly violating international law. It is violating its obligations under numerous Security Council resolutions and the Dayton Agreement. Its conduct and statements are an affront to the Security Council that established the Tribunal, and to this Council that is charged with overseeing the implementation of the Dayton Agreement. I urge you: end this obstruction now. Failure to do so will imperil all of the Tribunal’s work to date. One State must not be allowed to dictate the agenda of the international community. One State must not be allowed to impede the work of the Tribunal, the first practical measure in the last half century to create a world in which human rights, to equality and to justice, are more than words on paper.