International Crimes Tribunal
July 11, 1997 – Vital Voices Conference, Vienna, Austria
In the fall of 1993, the Security Council of the United Nations created the International Criminal Tribunal for the former Yugoslavia, in an unprecedented attempt to use justice and legal process to restore and sustain peace in a region devastated by war, and if worse is possible, by war crimes. In the summer of 1994, the distinguished South African jurist Richard Goldstone was appointed by the Security Council as the first Prosecutor of that Tribunal.
A few months later, in November of 1994, the Security Council intervened again to introduce justice and personal criminal responsibility as instruments of peace and national reconciliation. In the aftermath of the Rwandan genocide and of related atrocities committed in that country in the spring and summer of 1994, the Council created the International Criminal Tribunal for Rwanda.
Although that Tribunal is distinct from the Tribunal for Yugoslavia, it is linked to it by a common Appeal Chamber, and by a common Prosecutor.
After serving two years as Chief Prosecutor for both Tribunals, Justice Goldstone left to rejoin the Constitutional Court of South Africa. In October of 1996, I replaced him in those functions, thereby establishing a world record of bringing to 50% the proportion of women having held this powerful office. Not only is this cause to celebrate because it represents an almost accurate reflection of the proportion of women in society, but this victor of equality is not only apparent but real.
The presence of women in positions of power, influence and visibility is worthy of praise and celebration, not only because it reflects justice and equality, but because women, individually and collectively, have a unique contribution to make to public life.
Allow me to reflect on that credible working hypothesis, in the context of my current assignment as war crimes prosecutor. The Prosecutor of the two Tribunals holds a powerful office. She is charged with the investigation and prosecution of the most horrendously violent large-scale attacks on human life: genocide, widespread and systematic persecutions on racial, religious or political grounds, murder, rape, torture, deportation or enslavement of civilian populations. These crimes inflicted unspeakable harm to the social fabric of their respective societies, and were of such a nature and scale as to constitute a threat to international peace and security.
The Tribunals are subsidiary organs of the Security Council, the authoritative and coercive branch of the United Nations. Under the Resolution creating the two Tribunals, the Prosecutor must investigate and prosecute the perpetrators of these most serious violations of International Humanitarian law. In so doing, the Prosecutor must act independently, as a separate organ of the Tribunal, and she shall not seek nor receive instructions from any government nor from any other source.
The Prosecutor has the power to question suspects, collect evidence and conduct on-site investigations. She may, as she deems appropriate, seek the assistance of the State authorities concerned. The statute then provides that the States shall co-operate with the Tribunal. More specifically, States shall comply with any request for assistance or orders of the Tribunal, including orders for the arrest, detention, surrender and transfer of persons to the seat of the Tribunal, either in The Hague, or in Arusha, Tanzania, seat of ICTR.
74 persons have indicted in the ICTY, 23 in ICTR. Indictees have been arrested all over the world, in Germany, Switzerland, Cameroon, Zambia, Belgium and the United States. Many, however, are still at large. Only 9 of the 74 indictees in ICTY are in custody. Two have been convicted, one pursuant to a guilty plea, one after a six-months trial. Both cases are under appeal. The other trials are under way.
These trials are held before international courts, in which the judges are elected by the General Assembly of the United Nations, and before whom the prosecution must prove its case beyond a reasonable doubt. The highest international standards of procedural fairness are applied: the accused is entitled to legal assistance, financially supported by the Tribunal if necessary, and is provided with the means to challenge the prosecution s case, to present a full answer and defense to the charges, and to launch an appeal if convicted. The death penalty is unavailable, and the accused may face imprisonment for life. These procedural standards accord in my view with the famous dictate of Justice Robert Jackson, the U.S. Prosecutor at Nuremberg, who said: We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.
The transparency of the Tribunal s work and its public accountability will always serve as a powerful rebuttal to the claims of the unfairness or bias which may be advanced by those who have every interest in seeing justice defeated. We must not underestimate the combined potency of the may interests that would like to see these tribunals fail. The main focus of the work of both Tribunals is on gross abuses of the privileges of leadership. Leadership is often resistant to scrutiny and censure. Abusive leadership all the more so. Yet the demonstration of the personal criminal responsibility of men in position of leadership and power, will defeat the claim that rogue nations and shameful ethnic groups must bear forever the taint imposed upon them by the misdeeds of their leaders.
This concept was brilliantly articulated by the French senator and distinguished international figure, baron D Estournelles De Constant, in his 1914 introduction to the international commission into the causes and conduct of the Balkan wars, where he said:
The real culprits in this long list of executions, assassinations, drowning, burning, massacres and atrocities furnished by our report, are not, we repeat, the Balkan peoples…The true culprits are those who mislead public opinion and take advantage of the people s ignorance to raise disquieting rumours and sound the alarm bell, inciting their country and consequently other countries into enmity. The real culprits are those who by interest or inclination, declaring constantly that war is inevitable, end, by making it so, asserting that they are powerless to prevent it. The real culprits are those who sacrifice the general interest to their own personal interest which they so little understand, and who hold up to their country a sterile policy of conflict and reprisals…
As women are acceding in unprecedented numbers to positions of power, leadership and influence, it is fitting for us to reflect on these historical and contemporary cases of criminal abuse of leadership, and to participate in developing appropriate mechanisms by which these abuses will be punished. In the face of the depressing history of armed conflict that is man s inhumanity to man, denunciation of the added indignity inflicted by criminal conduct will serve as a redemption for a whole people otherwise tainted by atrocities committed in its name. This is the beginning of the process of healing and reconciliation upon which a peaceful and constructive future can be built.
In many western countries, women have acceded in unprecedented numbers, in the last 20 years, to the ranks of the legal profession, and, to a lesser extent, to public and political life. There is an on-going fascinating debate as to whether women bring to these new endeavors a fundamentally different analytical approach and moral judgment. I believe that we undeniably bring a different point of view to the issue of conflict and war, to the issue of power and abuse of power, and to the issue of violence in all its forms. We know something about violence: we tend to be the primary recipients of it in many of its most odious manifestations.
We are also, collectively, as women, profoundly law-abiding.
I had the privilege of working last year on issues involving the incarceration of women offenders. Women constitute a very small percentage of persons convicted of serious crimes. Across Canada, for example, some 14,500 men are incarcerated to serve a sentence of more than two years. Only about 320 women are in jail for more than two years. I believe the proportions would not be considerably different in many of your countries.
In that context, allow me to underline the groundbreaking work that the Two International Tribunals are doing not only in enforcing international humanitarian law for the first time since the landmark trials of Nuremberg and Tokyo 50 years ago, but particularly in exposing and prosecuting the sexual violence which has formed an integral part of ethnic cleansing and genocide, and which is, above and beyond any fine legal distinction, a crime against the very humanity of the victim.
While rape has been proscribed by the laws of war for centuries, sexual violence, whether perpetrated on male or female victims, has not been prosecuted any more so, and indeed even less so, if one refers to the Nuremberg-era prosecutions, than other war- related atrocities. Rape and other forms of sexual assaults have ancient roots, grounded in universal legal and moral prohibitions, yet in many jurisdictions these crimes are underreported and underprosecuted. In war-time, the problem is exacerbated; victims of all forms of atrocities are often reluctant to come forward, in part because they have little confidence that justice will be done, and also because they legitimately fear for their safety and that of their families. The courage of those who have thus far come forward will eventually override silence and impunity.
The proliferation of internal armed conflict emerging from ethnic and regional intolerance and from competition for scarce and unevenly distributed resources, will tax the world s capacity for conflict resolution for many years to come. I view international criminal law as the weapon of choice in arsenal of peace.
Women have different skills at resolving conflict, different aptitudes and interests in building and preserving communities, a different relationship to the environment. But we have the same entitlement as men to contribute to our own governance.
Copyright information: Copyright by Louise Arbour, 1997. All rights reserved.