International Seminar organised by the Finnish EU Presidency
and Amnesty International in Helsinki, 29.9.2006

"Building a Culture of Accountability - Action against Impunity in the External Relations of the European Union"

The achievements and challenges of the ICTY

Allow me to begin with a quote from Sir Winston Churchill (1874 - 1965), who was kind enough to leave us with many thoughtful remarks. He said, "All great things are simple, and many can be expressed in single words: freedom, justice, honour, duty, mercy, hope." All of these words are directly or indirectly relevant to the purpose of this seminar. My aim here is to focus on justice, because it is what we are trying to achieve for the victims of serious violations of international humanitarian law.

Great things, like justice and peace, generally are easily stated and understood, but they are tremendously difficult to achieve in practice and to everyone's satisfaction. What is important is to make an honest effort and in doing so to be consistent, persistent, strong and uncompromising.

The highly regarded second UN Secretary General, Dag Hammarskjold (1905-1961), known for his pro-active role on the world scene, noted that "the United Nations was not created to take the mankind to heaven, but to save humanity from hell." Many would argue that the UN collectively failed, and in many local conflicts humanity felt the breath of hell, for instance, - to name just a few close to my work - genocides in Rwanda and Bosnia. It is however, fair to say that the UN has made and is making an honest effort, within the limit set to the organisation by its member States.

We hear the same type of criticism about the ICTY - people expected more, in a quicker way and less expensive. But justice is not a fast food chain, and the extent of achievements of the international institution as is the Tribunal is directly proportional to the extent of support given to it by the member States and full cooperation of the states concerned. Addressing on 19 September the UN General Assembly, present UN Secretary General Kofi Annan noted significant progress of the rule of law, more accountability of the leaders and the fact that "humanity has actually brought to justice some of those who committed the most heinous crimes against it". He was clear though that despite the solemn pledge of all UN members of last year to "protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity", reports are reaching us every day "of new bestial crimes to which individuals and minority groups are subjected".

Back in 1992, news about terrible crimes were already reaching the media. At that time, it was about the war in the former Yugoslavia. These media reports gave the impulse for the creation of the ICTY.

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The Yugoslav Tribunal has served the purpose of international justice for 13 years, while principal armed conflicts stopped 11 years ago in Croatia and Bosnia and Herzegovina and 7 years ago - for Kosovo. In terms of accumulated wealth of knowledge, practice and jurisprudence - indeed, both ad hoc Tribunals for the former Yugoslavia and Rwanda, linked through the same Appeals Chamber, contributed greatly to the cause of justice. Kofi Annan in his last report to the General Assembly on the work of the Organisation called the establishment of the two ad hoc Tribunals "the most striking development at the international level over the past decade" which "demonstrated the collective will not to allow grave violations of international law to go unpunished".

But it was far from an easy task, as intentions of the legislators, to put it mildly, varied. Michael Scharf, for instance, who participated on behalf of the US in the drafting of the ICTY Statute, and recalled later that some of participants of this effort did not believe or expect Tribunal to be a working judicial body. He wrote in The Washington Post in October 1999: "From the beginning, the UN Security Council's motives in creating the tribunal were questionable. . it became clear that several . permanent members considered the tribunal a potential impediment to a negotiated peace settlement. Russia . worked behind the scenes to try to ensure that the tribunal would be no more than a Potemkin court. The US' motives were also less than pure. America's chief Balkans negotiator at the time, R. Holbrooke, has acknowledged that the tribunal was widely perceived within the government as little more that a public relations device. The thinking in Washington was that even if only low-level perpetrators in the Balkans were tried, the tribunal's existence and its indictments would deflect criticism that major powers do not do enough to halt the bloodshed there".

Despite the hidden obstruction of major powers and the open one of most countries in the former Yugoslavia, the ICTY has achieved remarkable results - presidents, prime ministers, ministers, senior military and police commanders, paramilitary leaders, public figures were indicted and brought before the Judges. I am positive that the most serious and most emblematic crimes committed during the conflicts in the former Yugoslavia have been addressed, and are being addressed in the courtrooms in The Hague. It is also undeniable, that the human rights agenda and international justice have made tremendous progress since 1993, irreversibly impacting on policy makers. The Yugoslav Tribunal proved to be much more than just a fig leaf for diplomatic efforts. The ICTY acquired great authority in terms of developments in the Balkans. Everybody now understands that the countries of the former Yugoslavia must have the courage and the wisdom to confront and accept their past before they can integrate the institutions of the Euro-Atlantic community. The full cooperation with the ICTY is a test of these States' readiness to deal with their recent past.

The Tribunal has indicted a total of 161 individuals for war crimes, crimes against humanity and genocide. It has already completed proceedings with regard to 96 of them. Proceedings are on-going with regard to 65 accused: one is awaiting judgement, 23 are currently on trial, 15 are at the appeals stage, 20 are on pre-trial and six are still at large. Only six accused are still at large, among them two most wanted accused - Karadzic and Mladic.

In 2003, the Security Council endorsed the Completion Strategy of the Tribunal, whereby the ICTY should finish its work by the end of 2010. My Office has fulfilled the first bench mark of completion strategy - all investigations have been finalised in December 2004 and the last indictments were confirmed by the Judges in the first months of 2005. We are supposed to finalise remaining first instance trials by the end of 2008, though the present case load is quite heavy and, as indicated by the former and present Presidents of the Tribunal, we would most probably need the whole of year 2009 to be able to complete the first instance trials. The Security Council will have to decide, probably next year, whether it allows us to complete all our trials. In view of the opposition of Russia and others, this may not be the case. The risk therefore exists that some of the most important leaders accused of the worst possible crimes may be allowed to escape trial and enjoy impunity. Unless the international community affirms with clarity that all senior leaders indicted by the ICTY will be tried at the ICTY, I am afraid they will be given a passport for impunity.

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Allow me, in connection to the challenges, to say a few words about the Tribunal's system. It might be useful to recall some of the important differences between the Military Tribunals of Nuremberg and Tokyo after the Second World War and the two "ad hoc" Tribunals for former Yugoslavia and Rwanda. Using the words of the famous French politician Georges Clemenceau (1841 - 1929) it may be argued that "Military justice is to justice what military music is to music". Indeed differences are substantial while challenges are of other nature and the magnitude of crimes is incomparable.

Post World War II Tribunals were military; they were multi-national rather than truly international, and composed of the four victorious Allies. The ICTY and ICTR were created by authoritative decisions of the UN Security Council, approved by the General Assembly. In Nuremberg, most defendants were in custody and all German archives and infrastructure were at Tribunal's disposal, while the ICTY is still looking for some of the most important accused (now 6 at large) and still has no full access to the most important archives in Serbia. There were 24 accused in Nuremberg, while 161 were indicted before the ICTY.

The Military Tribunal of Nuremberg had only very basic Rules of Procedure and Evidence - only 11 rules - and trials "in absentia" were permitted. Martin Bormann was tried in his absence. In Nuremberg and Tokyo the death penalty was permitted and there was no right of Appeal. In the Yugoslav Tribunal the Rules of Procedure and Evidence counts now 159 rules, trials "in absentia" are not permitted, there is no death penalty and there is the Appeals Chamber. Progress in terms of legal standards, especially in relation with the rights of the defendants, is evident. Inevitably and logically - the challenges are now more sophisticated.

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The legal power of the ad hoc Tribunals, mandated by Chapter VII of the UN Charter, is colossal - it is mandatory and theoretically all-encompassing - all states must co-operate with the Tribunals and obey Tribunals' orders. But the challenge in reality is that Tribunals depend entirely on the level of cooperation of states and entities (and not only in the Balkans). Having no enforcement agencies of their own, these Tribunals are largely dependent on the willingness and obligations of States and the international community's support. Since none of the States or entity in the former Yugoslavia has broken with the nationalist rhetorics and regimes of the nineties, the ICTY remains painted in dark colour as an unjust institution. This gives unjustified reasons for the governments to explain their lack of cooperation by difficult political situations, national security concerns or sensitive political issues, like upcoming elections, the risk of boosting the popularity of radical nationalists, and even national holidays, believe it or not!. Needless to say that the principles of the rule of law cannot be applied with a delay-key, nor a kind of "not-now" nor "not-this", mechanism. And you would not believe how many times I was asked to press these "delay-keys" or "Escape" buttons in order to stop investigations, to wait with indictments.

The ICTY accumulated impressive evidence - judgements, rulings and motions, documents, exhibits, witness statements, videos, transcripts of the trials. Apart from the judicial record (found in the judgements, admitted evidence and transcripts), the Office of the Prosecutor alone is in possession of more than 5 million pages of documents, more than 12,000 hours of video/audio records, hundreds of maps and other items. However, the challenge always has been and remains to get full and unrestricted access to the documents and archives of the former warring parties, as nothing is given voluntarily.

Through the trials heard in The Hague, a clear judicial record is being established about the crimes committed and offenders, about numerous violations of international law and actions of the relevant responsible authorities, about the enormity of the human suffering and nationalistic policies which led to the crimes. Nevertheless, these established facts, admitted evidence and judicial record are constantly challenged by nationalist propaganda and denied by those who stick to their war time nationalist goals. They should at least recall what famous British philosopher and mathematician Bertrand Russell (1872-1970) said about it: "War does not determine who is right. Only who is left."

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In regard to cooperation it is true and fair to say, that at the initial stages of the Tribunal's existence the challenges and impediments encountered by the Office of the Prosecutor were more severe. Some states, like Croatia under F. Tudjman and Serbia under S. Milosevic, did not cooperate with the Tribunal and sought to actively obstruct the work of the prosecutors. There was no question about arrests and access to the archives and witnesses. Even the jurisdiction of the Tribunal to investigate events in Croatia and in Serbia (Kosovo) was disputed by the ruling regimes in Zagreb and Belgrade. Both governments were reported to the UN Security Council for non-compliance to no avail - Presidential statements issued by Security Council did not work. There was no real incentive to cooperate, as there was no basis for the EU and NATO conditionality at the time.

Due to the lack of arrests on the public indictments even trials in absentia were contemplated by the Tribunal's Judges. The then Prosecutor vehemently opposed such course of action. My predecessor, L. Arbour introduced the so-called sealed indictments - which were served on the authorities capable to conduct the arrest operations without disclosure to the public. The innovation, though not unknown in national jurisdictions, made a breakthrough for the ICTY - sealed indictments led to several dozens of arrests and even voluntary surrenders of those who anticipated to be indicted.

The situation has significantly improved in all aspects in the last 4-5 years. All authorities in the countries of the former Yugoslavia recognise now the jurisdiction of the ICTY and cooperate directly with my Office. There are obviously still some problems with the full access to archives and documents, and six accused remain at large - among them the most wanted ones, Karadzic and Mladic. And I am using all available means to obtain full cooperation of states, all in order to achieve successful completion of the overall Tribunal's mission. The EU and NATO policies of conditionality are indispensable in this effort.

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Despite improvements, the challenges do not disappear. Every step we take, every move we make are challenged by the nationalists, supporters of the war criminals. Nationalism itself is not a crime in purely legal terms, but in its extreme forms it is very close to pure evil. As it leads to violence, war and terrible crimes against people of other nationality or religion, it causes internal moral decay of a society and ends up with complete denial of the guilt and wrongdoings.

Anti-Hague propaganda is not subsiding in the region. We are under constant attacks and attempts to belittle the efforts of Tribunal. The facts from indictments and evidence admitted in the courtrooms is disputed, accusation of bias and politicisation mixed with scandalous lies and manipulations continue - all in order to blind people and protect what is perceived as national interest and "historical truth". It is a continuing external challenge for us, as the Tribunal simply has no capacity to counter massive propaganda, often sponsored by the authorities.

We keep facing situations when Governments and Parliaments by their political declarations were trying to change or re-interpret history and distort facts well known to all reasonable observers. For instance, now, the Croatian Government is attempting to invite itself as amicus curiae in the ICTY cases in order to dispute allegations from the indictments confirmed by the ICTY Judges with a purpose of setting the "historical and political" record straight. Certainly - it will be for the Tribunal Judges to decide whether to allow the appearance of the state as amicus curiae in certain cases, but I will oppose as strongly as possible this initiative. I'm asking myself what if tomorrow other Governments, with its own vision of "historical truth", will apply for the amicus curiae ticket in the courtroom? A challenge, isn't it?

Judicial processes should be left beyond the reach of politics and the interference of governments. Impartial processes are especially important in the context of complex and highly contested events, like the conflicts of the 90-es in the former Yugoslavia. In the conflicts where, using the words of Oscar Wilde (1854-1900), "the pure and simple truth is rarely pure and never simple." Especially taking into account massive propaganda and distortion of the truth by the conflicting parties.

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There is one more challenge, which actually has already produced positive results. I am speaking about the achieved partnership with the national prosecutors in Belgrade, Sarajevo and Zagreb in dealing with the war crimes cases. The ICTY itself was never supposed to be the only institution dealing with the thousands of crimes committed in the 90s, concurrent jurisdiction of the national courts is envisaged by the ICTY Statute. However, it was only recently - during the last 2-3 years - that serious progress was made in establishing specialised courts in these countries, exchanges of evidence, cooperation with my Office and on the regional level between the national prosecutors. This cooperation is linked to the transfer of some war crimes cases from The Hague to the national courts.

The return of cases to domestic jurisdictions is one of the key components of the ICTY completion strategy. My Office submitted 13 motions (involving 21 accused) to the ICTY Referral Bench requesting deferral to national courts, final decisions were made on eight of them and five cases have been transferred. We are also progressing well in the transfer of several dozen non-indicted cases, which were at different stages of the investigation when the completion strategy was adopted. Sharing of the evidence with the national prosecutors at their request has become a routine activity for us.

Thus far this process is going well, however, it is also not without a challenge. We call it the impunity gap. It is caused by the lack of legislation, and maybe political will, in the countries concerned to allow extradition of nationals or transfer of war crimes proceedings to other countries. We all know that there were thousands of perpetrators of the war crimes. In the present legal situation they can enjoy total impunity, as they cannot be extradited to other state to face the charges, while the state where the charges are filed cannot transfer the proceedings with. In my recent address to the OSCE Permanent Council I raised this issue in its entirety and very much hope that together with the national authorities and with the assistance of the OSCE and the EU we will be able to close this unfortunate gap.

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Obviously, there are more challenges in the work of the Tribunal. The one all-encompassing is to implement the completion strategy in such a way that it will not allow persons accused of the worst crimes in the history of mankind to escape justice. If the United Nations is not willing anymore to fund our Tribunal so that it can complete successfully its mandate, the Europeans will have a tough dilemma: either to fill the gap and make sure the ICTY receives the necessary resources, or accept that, because of the lack of cooperation of Serbia and the opposition of Russia and China, thousands of Muslim victims in Europe will never see their legitimate needs for justice satisfied. Can the European Union tolerate that 2 persons accused of genocide are being sheltered by a candidate country? Can European accept that these alleged genocidaires may not face trial because there will be no court to try them? This would bear a severe blow at our European values, based on the rule of law. Unfortunately, they seem to be less and less shared in the post-9/11th world.

To finish, I would like to recall the words of Francis Bacon (1561-1626), "If we do not maintain Justice, Justice will not maintain us."

Recourse to international justice mechanism in denunciation of individual criminal responsibility of civil, political, administrative and military leaders in a war or internal conflict was a bold action of the United Nations. It may not have prevented such conflicts and crimes elsewhere. But it will certainly help to realise that there is no cause, not nationalism, not even national self-defence, that justifies the massive torture, rape, and slaughter of non-combatants, or the persecution of people based on race, ethnicity or religion.

Thank you.

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