Carla Del Ponte on the end of The Hague and the future of war crimes prosecution

[Ivo Skoric]

From: www.iwpr.net / Del Ponte's speech in Belgrade:

DEVOLVING WAR CRIMES JUSTICE

Local prosecutors and judges have to focus on building up their 
capacity for domestic war crimes prosecutions.

By Carla del Ponte

The debate on war crimes in almost every country of the former 
Yugoslavia is not subsiding. It is alive and present in daily life 
and the media: who is most responsible; whose sufferings were the 
greatest? As the German philosopher Karl Jaspers (1883-1969) said, 
"Suffering differs in kind and most people have sense only for their 
kind. Everyone tends to interpret great losses and trials as a 
sacrifice. But the possible interpretations of this sacrifice are so 
abysmally different that, at first, they divide people."

It is no easy task to investigate and prosecute those responsible for 
war crimes when views are so divided, and with such a lack of trust 
among neighbours. And I wonder, is it easier for local courts to deal 
with tribunal cases, or to launch their own war crimes cases? Why do
politicians and the public often demand domestic trials instead of 
trials in The Hague? Why is it better for Serbs to be tried in 
Serbian courts and Croats to be tried in Croatian courts? What kind 
of fair trial can be expected when the same people who demand local 
trials for the accused stress that these accused people are innocent?

Transparent trials are one solution. It is a common understanding 
that the most authoritative rendering of the truth is possible only 
as a result of judicial inquiry, and that major prosecutions can 
generate a comprehensive record of past violations. Truth is 
constituted by multiple facts and perspectives, each of which is 
vulnerable to distortion, denial, rationalisation, and refutation. 
How often we see this in the former Yugoslavia, where nine years 
after Dayton, people cannot agree on the basic facts, and politicians 
still argue about every aspect of the former Yugoslavia and the armed 
conflicts that led to its dissolution.

The other aspect of this point is that almost everybody is concerned 
only about those who are suspected or accused. Few speak about the 
victims and their right to justice and a fair trial. Parliaments even 
adopt laws concerning the interests of the accused - I haven't heard 
about any such regulations and laws about victims and their rights.

Turning to the challenges facing the domestic courts when it comes to 
the legacy of the ICTY and local war crimes prosecutions, these are 
multiple and of the same nature as for us in the tribunal. They are 
both legal and political. Leaving aside the latter, it is 
unquestionable that the tribunal has amassed enormous experience and 
evidence in the last 11 years. This ought to be used by the domestic 
courts to maximum extent.

The wealth of the ICTY evidence includes judgements and motions,
documents, exhibits, witness statements, videos and transcripts of 
the trials. Apart from the judicial record, the Office of the 
Prosecutor possesses more than 4.5 million pages of documents, more 
than 12,000 hours of video/audio records, hundreds of maps and other 
items. Not all the ICTY collection was used in trials so far, and 
parts probably will never be used due to the lack of time. The 
question is how to make it possible for the domestic courts to use 
this material. We are willing to share everything we can already now, 
on proper judicial request, subject to understandable restrictions.

It is no secret that hundreds, even thousands of perpetrators of 
serious war crimes have not even been charged. They are often seen by 
their victims in the street, still holding important positions. My 
office intends to transfer to the domestic courts dossiers of 
unfinished investigations and investigative materials. It will then 
be up to the domestic judicial and prosecutorial authorities to act 
on these cases. This will start happening next year and will 
represent a serious test for the maturity of the domestic courts.

The domestic courts must not act only upon the ICTY cases. They were
always expected to launch their own cases, though all the indications 
show that for different reasons it has not happened. For example, in 
Bosnia and Herzegovina, criminal files have been submitted to my 
office for review against some 5,908 persons but only around 90 
persons have been brought before the courts. In Croatia the process 
of reviewing hundreds of cases tried in absentia is still underway 
and many of these cases are being dismissed for lack of evidence. 
Serbia and Montenegro is just beginning the process which has to 
bring those responsible for atrocities elsewhere to justice.

Domestic prosecutions for war crimes will face the problem of 
suspects hiding in "friendly" states, or being protected by interest 
groups. Regional cooperation and a clear political will by the 
authorities is the only remedy for this challenge. Recent initiatives 
in the field of regional cooperation concerning war crimes, with 
support of the OSCE, UNDP, ICTY and others, are most welcome.

Although international criminal trials are laudable, as they assign
accountability for mass atrocities to individuals at the high level, 
they have limitations. Their focus leaves several categories 
untouched - such as lower-level perpetrators. These include community 
members, outsiders who may have contributed to the outbreak of 
violence, and "bystanders" who did not participate in crimes but did 
not intervene to stop them, either. In terms of law, criminal 
responsibility is individual. But in terms of justice and 
reconciliation, the complicity of those who stood by or
cheered a vicious leader, or who elected a war criminal to represent 
them, cannot be omitted. This could be much better dealt with by the 
relevant countries themselves.

The countries of the former Yugoslavia all have reasons to embrace 
the tribunal as their own court, which it is. They should look to the 
ICTY as an aid in shedding any feeling of collective responsibility 
by their nations, and as a source of jurisprudence, evidence and 
practice. They have an interest in the optimal functioning of the 
tribunal because they cannot yet prosecute those most responsible for 
the crimes and devastation of the past decade.

Justice calls for perpetrators to answer for their crimes in a court 
of law. At the same time, different societies have different 
understandings about law and expectations of justice. There is little 
understanding in the former Yugoslavia of the concept of command 
responsibility. Only the responsibility of direct perpetrators is 
accepted there (for decades leaders were regarded as untouchable, for 
example). That is why there is a need to learn from the experience of 
the international court.

Let me illustrate what I said so far by an example from the Croatian
media, which speaks for itself. Soon after announcement about the
indictment against General Mirko Norac, a Zagreb daily, Jutarnji 
list, sent a reporter to the seat of the crime for which he is 
accused - the villages in the Medak Pocket of Citluk, Pocitelj, 
Ornica and Divoselo. The intention was to ask inhabitants what they 
thought of the Norac indictment. The task was impossible as the three 
locals interviewed had returned in the last decade, and lived in 
isolation without electricity and were unaware of yesterday's 
headlines. The reporter said the three returnees lived like animals 
amongst torched and razed houses, surrounded by mines. One returnee 
commented that he did not know if Norac was to blame for these 
crimes, adding that the war policy of both sides was to
destroy and torch as much as possible. "The war shouldn't have 
happened," he said.

This short story tells me a lot about victims and command 
responsibility. To put it bluntly, rather than in legal terms, I do 
not care who the aggressors or defenders were, nor do I care about 
big words used by either side to justify their "truth". I care about 
the victims of these conflicts and their right to justice and I 
appeal to my colleagues prosecutors to be on the same side.

Let me also recall the words of a Danish physicist, the Nobel prize
winner, Niels Bohr, "The opposite of a profound truth may well be 
another profound truth."

To conclude, the time of uncertainty and the unbearable pressure of 
new indictments have gone. But this must not be the end of the story. 
Impunity should not be tolerated and this is our moral and 
professional obligation as lawyers. Using the words of another Nobel 
laureate, the Russian writer Solzhenitsyn, "When we neither punish 
nor reproach evildoers, we are not simply protecting their trivial 
old age, we are thereby ripping the foundations of justice from 
beneath new generations."

While we concentrate on the closure of the tribunal and our 
completion strategy, local prosecutors and judges have to focus on 
building up their capacity for domestic war crimes prosecutions. 
Apart from changes in legislation, such as improvements to their 
legal procedure, additional areas are essential for their success if 
the task is to be taken seriously. I refer here again to regional 
cooperation between Croatia, Bosnia, Serbia and Montenegro in regard 
to war crimes (exchange of information, legal assistance and 
extraditions) and the issue of protection of witnesses.

I subscribe fully to the statement issued after the recent seminar in
Dubrovnik on the issue of regional cooperation on war crimes, "Where 
war crimes are concerned, there can be no middle ground. Impunity 
thrives on political impotence and moral ambivalence. It is a black 
and white issue: either we repudiate war crimes and prosecute the 
perpetrators, or future generations will judge us to have been 
accomplices by acquiescence."

We in the ICTY, especially in the Office of the Prosecutor, are used 
to criticism. We have no immunity in this regard. We have not much 
time left, and I think that when the tribunal is finally closed, the 
public, especially the media, will miss it. Just imagine - media in 
Belgrade, Zagreb and Sarajevo without sensations and speculation 
about ICTY? I appeal to colleagues prosecutors, do not disappoint 
your media, otherwise they will run out of subjects!

Jokes aside, remember that war crimes do not expire with time: They 
are, and will always remain, war crimes - especially for the victims 
and their families.

This is an edited version of a speech delivered by ICTY chief 
prosecutor Carle del Ponte in Belgrade at an international conference 
 on Octeober 1-2, organised by the Humanitarian Law Centre in 
cooperation with the Council of Europe.
---------------------------------------------------------
Ivo Skoric
19 Baxter Street
Rutland VT 05701
802.775.7257
ivo at balkansnet.org
balkansnet.org