PROSECUTOR FOR FORMER YUGOSLAVIA, RWANDA TRIBUNALS BRIEFS SECURITY COUNCIL, EMPHASIZES NEED FOR COOPERATION FROM STATES

10 November 1999
SC/6749

PROSECUTOR FOR FORMER YUGOSLAVIA, RWANDA TRIBUNALS BRIEFS SECURITY COUNCIL, EMPHASIZES NEED FOR COOPERATION FROM STATES

10 November 1999

Press ReleaseSC/6749

PROSECUTOR FOR FORMER YUGOSLAVIA, RWANDA TRIBUNALS BRIEFS SECURITY COUNCIL, EMPHASIZES NEED FOR COOPERATION FROM STATES

19991110

Carla Del Ponte Says Council Must Act When States Fail To Comply; Council Members Stress Need for Execution of Tribunal Arrest Warrants

The Security Council must step in when States did not comply with their duty to cooperate with the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia, the Prosecutor of both Tribunals, Carla Del Ponte, told the Council as she briefed it this morning.

Croatia was withholding cooperation, she continued. It had unilaterally decided that the Tribunal had no jurisdiction to investigate its actions in Operation Storm and Operation Flash. But, the power to initiate investigations, bestowed by the Council on the Prosecutor, must be preserved. The judicial process must be protected from the tyranny of political manipulation. The success of the two international criminal Tribunals ultimately depended on the Council’s active support.

As she described her Office's future work, she said the forensic programme in Kosovo could be finished by next year. It was necessary to act quickly before evidence was lost, she stressed. Also, she intended to establish a new financial team to look into freezing fugitives' funds, which she considered corruption money. Also, she said she would report to the Council on Rwanda following her upcoming visit there.

Following the Prosecutor's report, several Council members stressed the need to execute arrest warrants, and expressed concern that accused persons remained at large. In the course of the discussion, some speakers called for greater efforts to bring war criminals to justice, while others stressed that the Tribunals must respect national security and regional stability when carrying out their mandates.

Argentina's representative said since the ad hoc tribunals lacked coercive measures, they relied on the cooperation of States to provide evidence and ensure capture and transfer of persons. The Security Council must act. The credibility of the tribunals and the authority of the Council were at stake. States could not unilaterally suspend their cooperation with the tribunals.

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* The 4061st and 4062nd meetings of the Security Council were private meetings. Security Council - 1a - Press Release SC/6749 4063rd Meeting (AM) 10 November 1999

The representative of the Russian Federation said the Tribunal for the former Yugoslavia must act in strict compliance with international agreements and Council resolutions. While all States must fulfil their international obligations and cooperate with the Tribunal, the arrest of indictees should not be the result of undue coercion on the States involved. Further, the use of sealed indictments must be stopped. Every action to detain someone accused of war crimes must be measured primarily on how it would effect international efforts to stabilize the situation in the region and move the peace process forward. The Tribunal must not be politicized, he stressed.

The representative of the United States expressed concern about Member States failing to cooperate with the Tribunal, in particular, to implement the arrest warrants transmitted to them by the Tribunals. One of the greatest challenges was to gain custody of indictees and, in that regard, Belgrade's attitude was unacceptable. Those indictees not in custody must understand that there was no safe haven for them. He urged the Government of Croatia to comply promptly.

Also this morning, the Council heard from the representatives of France, Canada, United Kingdom, China, Malaysia, Netherlands, Brazil, Gambia, Bahrain, Gabon, Namibia and Slovenia.

The meeting began at 11:24 a.m. and adjourned at 1:05 p.m.

Council Work Programme

The Security Council met this morning to hear a briefing by Carla Del Ponte, the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

Statement by Prosecutor

CARLA DEL PONTE, Prosecutor for the two Tribunals, said she hoped that during her time in office there would be regular occasions to address the Council. In the less than two months since she took office, she could say she was generally impressed with the work being done by the two Tribunals. At the same time, she faced a daunting task, and required the support of Member States and the Council, which expressed the political will of the international community. The success of the two international criminal Tribunals ultimately depended on the Council’s active support. The two Tribunals were powerful mechanisms for international humanitarian law and would turn to the Council from time to time, when the full weight of the Council was required to be brought to bear on those who refused to honour the international obligations imposed on them by Chapter VII of the Charter.

She then drew attention to the fact that Croatia had withheld cooperation because it unilaterally decided that the Tribunal had no jurisdiction to investigate its actions in Operation Storm and Operation Flash. But the power to initiate investigations, bestowed by the Council on the Prosecutor, must be preserved. The judicial process must be protected from the tyranny of political manipulation.

The Council was aware of Croatia’s refusal to cooperate in Operation Storm and Flash, she continued. In connection with a different investigation, her Office would have to undertake an investigation in Croatia, and had requested Croatia to create a secure environment. She hoped the Council’s intervention would not be required for that exercise. She drew that to the Council’s attention to illustrate the constant need for State cooperation, which underpinned the daily operations of the tribunals.

She said she had recently visited the former Yugoslavia, met with high- level United Nations representatives there, visited exhumation sites and found that work was being conducted in a professional manner, even under difficult circumstances. Soon, she would conduct a similar visit to Rwanda. Already, she had been meeting with Rwandan officials in The Hague, and in Brussels. Relations with the Rwanda Government might have been affected by a decision by the Appeals Chamber to dismiss charges against one of the accused. She was concerned about the findings in that case, and regretted that the Office of the Prosecutor had been criticized for not having acted diligently. Until visiting personally, however, she would reserve comments. She would be happy to address the Council at a later date on Rwanda.

Regarding arrests in Bosnia and Herzegovina, where international forces were present, 14 accused had been detained by the Stabilization Force (SFOR) since 1997 -– four this past year, she said. She would work hard to press for increasingly strong action against accused that had not yet been arrested, but there were accused who were beyond the reach of SFOR. The Tribunal could only do so much. It required help from the Council and from governments and all other international institutions. In September, the Council had met with her predecessor and expressed its continued support for the Tribunal. The Tribunal did not seek the Council’s support lightly. In turn, the Council should respond creatively and with its full weight when asked for assistance.

She said much effort of the past year had focused on Kosovo, in view of the need to act quickly before evidence was lost. The last of the international exhumation teams from 14 countries had left recently, and a preliminary report on findings had been presented to her. The Tribunal’s primary task was to gather evidence relevant to criminal charges, rather than compiling a complete list of the deceased. Still, her staff had collected some reliable statistics. While it might be some time before all the evidence was presented before a court, some numbers now might be of use. Reports had been received of 529 gravesites, including sites where bodies were found exposed. Approximately one third of those sites had been examined. In total, 4,266 bodies had been reported to be buried. To date, 2,108 bodies had been exhumed. That figure did not necessarily reflect the actual number of victims, since there was evidence of tampering with graves, and other sites where bodies could not be exhumed. The figures might not tell the whole story, and the forensic evidence would not produce a definitive total by itself.

The pattern of killing was becoming clear, she continued. There seemed to be many small sites. Typically, fewer than 100 persons were buried in one location. She had prepared a detailed list of sites for distribution. More details, such as age, sex and other characteristics, could not be provided yet. Many of the bodies, including those of women and children, were positively indentified, and often the names of the victims were well known. Therefore, the work was a sad process of confirming identification, although that was not the primary objective of her Office.

Currently, her Office was preparing for next year, when it would like to be able to complete the investigation of crime scenes and mass graves, she said. She wanted to complete the forensic examination of all remaining sites as soon as possible. Over 2,000 bodies had been found of the total of 11,334 reported. With the same level of resources next year as this year, the whole forensic programme could be finished in a single season. She intended to continue to seek assistance of States contributing gratis personnel for the remainder of the forensic work next year. The job could not be left only half finished.

She said the Council must step in when States did not comply with their duty to cooperate. She was here to see that the Council intervened on the urgent matter to ensure that Croatia cooperated on the documents, to complete important investigations.

Statements

FERNANDO ENRIQUE PETRELLA (Argentina) thanked Ms. Del Ponte for her report and said he hoped that such briefings would be provided on a regular basis to the Council. Both Tribunals had gone through a stage of institution building and were now fully operational, with the activities of the Yugoslav Tribunal

having exceeded preliminary expectations. He was well aware of the special difficulties the Rwanda Tribunal had to encounter in its early stages. Yet, despite those difficulties, it had arrived at significant judgements.

Despite the grounds for satisfaction, it was clear that both Tribunals faced serious difficulties, he continued. It was particularly important to ensure proper coordination between the two Tribunals to overcome some of the difficulties. The most serious problems were related to the lack of cooperation by States. The main feature of ad hoc tribunals was the lack of coercive measures on their part. Thus, they relied on the cooperation of States to provide evidence and ensure capture and transfer of persons. By their very nature, ad hoc tribunals differed from the future International Criminal Court, in that they lacked national jurisdiction. The Security Council could not remain impassive in the face of the report and must act. The credibility of the Tribunals and the authority of the Council were at stake. States could not unilaterally suspend their cooperation with the Tribunals.

ALAIN DEJAMMET (France) said the Prosecutor played a crucial role in eliminating impunity for those who had perpetrated war crimes. The Tribunals must always be aware of what was at stake, including the goals of reconciliation and reconstruction of a state of law. That was not always easy to achieve. The work was difficult, but noble. Also, it was complicated by the fact that it was being carried out in two different theatres. The work of the Tribunal for the former Yugoslavia was innovative. After the Council had adopted resolution 1160 (1999), the Office of the Prosecutor was involved at the beginning of the violence in Kosovo. France had lent every possible assistance to the Tribunal, including making available forensic teams.

The situation in Rwanda was equally difficult and sad, he said. The Prosecutor's presence on the ground there would help to deal with the various problems and to give new impetus to the Tribunal. He reiterated French support for her actions in connection with the Rwanda Tribunal. France had tried to give material support for the work of the Prosecutor. How did the Prosecutor feel about material, financial and human requirements for her Office? he asked.

The success of the Office of the Prosecutor and the Tribunals depended on the support of the States, he said. Accordingly, the attitude of States was of serious concern. Cooperation was a legally binding requirement for every State. The Council must constantly recall that fact. Success also depended on the legal framework in which decisions were carried out. He was pleased with the Prosecutor's urging to draw on various legal systems for her work, making use of what was effective in the various systems.

ROBERT FOWLER (Canada) said the work of the Tribunals was essential. Canada had welcomed the creation of the Tribunals. The Council had recognized that gross and systemic human rights abuses within States merited a forthright response from the international community.

Much more support from the international community was needed, he said. Many war criminals remained at large and many States refused to cooperate with the Tribunals. The Council was responsible for ensuring the compliance of States. It was not subject to debate or legal dispute. He called on all States to fulfil their legal obligation. He looked forward to an equally detailed report from the Prosecutor on Rwanda. He was confident that she would follow the fine traditions of her predecessors and would advance the cause of international justice.

Sir JEREMY GREENSTOCK (United Kingdom) said the Council should pay tribute to the Prosecutor's staff. He warmly appreciated their work.

He said his Government remained strongly committed to the Tribunal and supported the Prosecutor. It had taken steps to bring indictees before the Tribunal and would continue to do so. It was the duty of all States to bring to the Tribunal all those indictees living in their territory and to do so without delay. He expressed particular concern about indictees in Republika Srpska. The Council should remain in direct communication with Croatia. He was particularly concerned about the transfer to the Court of Slobodan Milosevic.

He said the Council had a responsibility to ensure that States lived up to obligations imposed under Council resolutions. In the expectation of the establishment of a permanent International Criminal Court coming into being, the Council must make sure that the obligations to cooperate with the Tribunals were carried out. He regretted Rwanda's decision to suspend its cooperation, but hoped that both the Government of Rwanda and the Tribunal would continue to engage in dialogue. He hoped the return of the Prosecutor and her Deputy to Kigali would be helpful to that end.

SHEN GUOFANG (China) said his delegation had taken note of the achievements of the two Tribunals. What particularly warranted the Council’s attention was the way the Rwanda Tribunal interpreted and applied the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. At the same time, there was room for improvement. He drew attention to the disputes between States and the Tribunals regarding cooperation. Both Tribunals had been established by Council resolutions; therefore, the countries concerned must cooperate in accordance with international and domestic law. For their part, the Tribunals, when requesting cooperation from States, should take into consideration public interest, security and the domestic law of the States concerned. The two Tribunals continued to face daunting tasks. Their work must be impartial and free from any interference.

GENNADY GATILOV (Russian Federation) said his delegation supported the work of the Tribunals, and called for proper punishment of those who had committed war crimes in times of conflict in the former Yugoslavia and humanitarian law in Rwanda. The Russian Federation supported efforts to deal with the organizational, financial and human resource problems experienced by the Rwanda Tribunal to enable it to play its part in eliminating the culture of impunity. The establishment of one additional Chamber meant that the international community could expect the Rwanda Tribunal to act more quickly. Still, there was more to be done to enhance the Rwanda Tribunal’s effectiveness. The procedures and work methods must be improved, and the inadequate supply of qualified jurists and administrative staff must be addressed. He hoped the Prosecutor’s upcoming visit to Rwanda would help achieve those objectives.

The activities of the Tribunal for the former Yugoslavia must be in strict compliance with international agreements and Council resolutions. All States should fulfil their international obligations and cooperate with the Tribunal, but that should be done in the context of agreements. Arresting indictees should not be the result of undue coercion on the States involved. The Russian Federation was categorically against sealed indictments. That practice had occurred in the context of SFOR in Bosnia in a way that went beyond the mandate of the Force. Such practices should be ended, and not recur in the case of Kosovo and KFOR.

The Russian Federation had serious doubts about the propriety of a sealed list of indictees, which was contrary to the Statute of the Tribunal itself, he continued. Every action to detain someone accused of war crimes must be measured primarily on how it would affect international efforts to stabilize the situation in the region and move the peace process forward. The Tribunal must not be politicized; it must be governed by the letter of the law. Unfortunately, that had not been the case in recent times, as in the case of the indictment of the leader of Serbia and the Federal Republic of Yugoslavia and the arrest in Vienna of a leader of the army of the Republika Srpska, who had been participating in a seminar at the invitation of the Organisation for Security and Cooperation in Europe (OSCE). Such a situation destabilized the region as a whole, and hindered moving the process forward.

The activities in Kosovo of the Tribunal for the former Yugoslavia must be in strict compliance with Council resolution 1244 (1999) and in accordance with the Statute of the Tribunal, he stressed. The Tribunal must investigate crimes committed against Serbs and other non-Albanian groups. The Tribunal had so far focused primarily on crimes against Albanians. That situation must be corrected or there might be grounds to accuse the Tribunal of adhering to double standards. Ms. Del Ponte should take due account of those matters of principle.

HASMY AGAM (Malaysia) stressed that accused persons must be tried without delay. His delegation welcomed the new rules of procedure aimed at expediting trials. While recognizing the need to respect the rights of the accused, it also recognized that conducting fair trials was often a slow process. Both speed and the quality of trials were important. The Prosecutor should elaborate on some of the impediments to expeditious trials.

The execution of arrest warrants was crucial to the functioning of the Tribunals, he continued. He regretted that such warrants had not been respected in the case of the Tribunal for the former Yugoslavia and expressed concern that publicly known accused remained at large. There should be no safe havens for indicted war criminals. Those in the position to do so should exert more serious efforts to apprehend and bring to justice war criminals. Failure to do so would imply a lack of political will to deal with the crimes. The failure to apprehend those most responsible for atrocities would cast a dark shadow on the Tribunals, and sustain a climate of fear that inhibited the return of refugees, particularly in minority areas. The Tribunals deserved strong support. The issue of war criminals still at large and the lack of cooperation must be properly addressed.

A. PETER BURLEIGH (United States) expressed confidence in the Prosecutor and appreciation for the work of Office of the Prosecutor. He asked that she also convey appreciation to her staff. He expressed concern about Member States failing to cooperate with the Tribunal, in particular, to implement the arrest warrants transmitted to them by the Tribunals.

He agreed that one of the greatest challenges of the Tribunal for the former Yugoslavia was to gain custody of indictees. The attitude of Belgrade was unacceptable. Those indictees not in custody must understand that there was no safe haven for them. In that regard, he did not agree with the Russian Federation. He added that he understood the difficulty of the challenge facing the Tribunals and he hoped to hear directly from them about their needs.

He went on to say that there was much work left to be done in Croatia. He urged the Government of Croatia to comply promptly. He regretted that Rwanda had suspended cooperation with the Tribunal. He hoped the Government would reconsider. He also hoped the Tribunal could speed up its proceedings. He would welcome a report from the Prosecutor after her coming trip to Rwanda.

He was troubled to read reports that the Council was not providing support to the Tribunals, whether material or political. The United States would support measures that would improve compliance with the Tribunals. Members States must provide sufficient financial and material support. He hoped the budget for 2002 would be approved expeditiously.

A. PETER VAN WALSUM (Netherlands) said he supported the Prosecutor and the Tribunals. State non-compliance with article 29 of the Tribunal for the former Yugoslavia Statute was one of the most important challenges before the Council. The Tribunal played important role in the maintenance of peace, justice and reconciliation. It also provided a trial ground for the establishment of a permanent International Criminal Court. He regretted that certain States and entities had consistently failed to cooperate with the Tribunal.

He said the focus on the non-compliance of the Federal Republic of Yugoslavia should not diminish the challenges presented by Croatia. Croatia should reconsider its representations about Operations Flash and Storm. Did the Government realize that the Tribunal would not go away? he asked. No military action, no matter how justified, was exempt from scrutiny, he said.

GELSON FONSECA (Brazil) said he hoped to have future dialogues with the Prosecutor. He supported her work and expressed the conviction that she would be able to build on the foundation of the work of her predecessors. The success of her work, however, depended on the cooperation she received from States, particularly those in the region. The resistance of States in accepting the Tribunals jurisdiction was a matter of grave concern. The Council must effectively support the Office of the Prosecutor. The preliminary findings in Kosovo showed how important it had been to create the Tribunal. It was an important basis for reconciliation.

He said the task of the Prosecutor was difficult and noble. The Council and all of the international community had a legal obligation to support the Prosecutor.

BABOUCARR-BLAISE ISMAILA JAGNE (Gambia) said he looked forward to the Prosecutor's visit and he would reserve comment until after that visit.

He said the cooperation of States was indispensable. Without it, there was little the Tribunal could do to bring criminals to justice. By continuing to provide safe haven for those on the run, non-complying States would deprive the two Tribunals of any raison d'être. The forensic evidence should be enough to convince those States to change their minds and to cooperate. If they did not, the Council should assume its responsibilities to see that its resolutions were implemented.

JASSIM MOHAMMED BUALLAY (Bahrain) said, given the number of victims in Bosnia and Herzegovina and in Kosovo, the number of individuals indicted was remarkably low. Why was there such an imbalance in the number of victims and the number of persons brought to justice? he asked. Commanders had directed massacres in Bosnia, then reappeared in Kosovo and were now at large. Had modern investigative measures, such as satellite technology, proved powerless?

When it came to bringing people to justice, the system seemed soft, he said. Often, cooperation by States was not reliable regarding information and evidence concerning indictees. Further, there was a need to question what kind of justice made States reluctant to cooperate with a tribunal that the Council had helped to set up. He warned against delay and leniency, which, he said, would have detrimental effects. The situation of criminals still at large could not continue.

ALFRED MOUNGARA-MOUSSOTSI (Gabon) said establishing the two Tribunals was an effort to end a culture of impunity for atrocities wherever they occurred. Violations of human rights had horrified the world’s conscience. All States, therefore, must cooperate fully with the Tribunals and not seek to influence the way they operated. He paid tribute to SFOR and to those countries that had facilitated the work of the Tribunals. His own country was doing its best to cooperate fully.

GERHARD THERON (Namibia) said his delegation attached great value to the work of the two Tribunals. As the Prosecutor had said, the effective functioning of the Tribunals depended on cooperation from Member States. The Secretary-General’s appeal for prison facilities for incarceration of those convicted by the Rwanda Tribunal should be considered by those States with the resources to respond. His delegation looked forward to a more detailed report following the Prosecutor’s visit to Rwanda.

DANILO TÜRK (Slovenia) said the evolution of the Tribunals and the work of the Prosecutors had been impressive. A solid basis had been created for a comprehensive system of international criminal justice. That evolution was attributable to several factors, including the support of the international community -– and the international legal community – and, above all, the professionalism and commitment of judges, prosecutors and other personnel working in the institutions.

Indicted persons must be transferred to the Tribunals for trial and the Prosecutor’s jurisdiction must not be disputed, he stressed. The Council agreed on those points. The Council should now begin a more detailed consideration of how to support and strengthen the judicial bodies it had created.

Ms. DEL PONTE, responding to comments, expressed appreciation for the words of support for herself and her colleagues. Regarding material and personnel needs, she said she planned to go before the General Assembly's Fifth Committee (Administrative and Budgetary). She had requested 41 additional posts. Of those, 27 were solely for investigations to do with Kosovo, where more than 300 mass graves must be examined next year. Two posts had been requested for establishment of a financial team, because fugitives required funding in order to remain at large. The money they received represented an act of corruption, as it supported their flight. Therefore, the Office was taking on responsibility for freezing their assets.

On the obstacles being faced by the Tribunals, and the length of their trials, she said those matters were being addressed. She hoped solutions would be found. The length of pre-trial detention was a particular concern. When an arrest was made, the Prosecutor was ready to go to trial in 30 to 60 days, but since there were so many trials under way, and the Chambers were occupied, new trials could not get started.

She said suspicion had been raised that the Tribunal for the former Yugoslavia was carrying out investigations only in one direction. That was utterly untrue. Data had not been issued yet, but her Office was dealing with cases where the perpetrators were Serbs, Muslims, and from the Kosovo Liberation Army (KLA). The investigation involving the KLA suspects was facing difficulties that stemmed from the attitude of the former Yugoslavia. Many Serbian victims had refused to come forward, her Office did not have access to the area, and its office in Belgrade was closed.

As for problems with Croatia, she said that the key point was that the Minister of Justice challenged the jurisdiction of the Tribunal. She had tried to impress on the political authorities that jurisdiction should be challenged during the trial, not before it. She was ready to find a solution to the problem with the Government of Croatia, but the fact that it denied her jurisdiction made it difficult to even hold discussions.

During her visit to the Republika Srpska, the Prime Minister had stated his intention to cooperate more with the Tribunal, she said. She had informed him of approximately 25 fugitives in the territory. She hoped the assurances she had received would become deeds. Regarding sealed indictments, she said that, in national systems, no indictments were published in the press or on the Internet before being issued, and the Tribunals were operating along the same lines. Her predecessor had found that the investigative method was an important technique. It was legally provided for in the rules and statutes governing the Tribunals, and she intended to continue using the method. There were more than 30 fugitives still at large, despite the existence of arrest warrants dating back several years.

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For information media. Not an official record.