COMMENT: The Tribunal's Progress

Saturday, 12 May, 2001

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Justice Richard

When I arrived in The Hague on August 15, 1994, to take up office as chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia, it had effectively been written off as a lost cause.

The tribunal had been established by the UN Security Council 15 months earlier, yet investigations into war crimes had not begun. The judges, who had been appointed almost a year before, were frustrated and openly talked of resigning. The United Nations was facing its worst-ever financial crisis and staffing a new sub-organ of the Security Council was a big problem. The whole idea that Balkan leaders then pursuing genocidal wars would actually end up in the dock was, in many quarters, dismissed as fantasy.

Today, almost seven years later, the tribunal is a bustling institution. Many trials are under way and the UN prison is full. Of course, frustration remains that Slobodan Milosevic, Radovan Karadzic and Gen. Ratko Mladic are not among the inmates there, but I believe their day will come.

The number of judges has been increased from 11 to 14, augmented with 27 ad litem judges, who serve on a case-by-case basis with permanent judges. The Rwanda tribunal, of which I was also chief prosecutor, has shown considerable progress, too, and the most important of those alleged to have ordered the genocide of 1994 have been or soon will be on trial in Arusha.

The two tribunals have already contributed an impressive body of new legal precedent and as a result, humanitarian law is making huge strides. In particular, gender-related crimes have been fully recognised and already entrenched in the definitions of such crimes in the Rome statute for creating the International Criminal Court (ICC).

The work of the tribunals has been felt in other areas of criminal law, too. It is widely acknowledged that the new atmosphere created by the investigation of war crimes in the former Yugoslavia and Rwanda contributed to the arrest in London of Gen. Augusto Pinochet in 1999. It certainly provided the impetus for the conference in Rome, in June-July 1998, when 120 nations approved the statute for the ICC. It is now probable that within the next 18 months the requisite 60 nations will have ratified the Rome Treaty and the work of the ICC will begin in earnest.

The presence of The Hague tribunal undoubtedly played a major role in the manner in which the NATO campaign was executed in the former Yugoslavia during 1999. Humanitarian lawyers were constantly consulted by the military with regard to the choice of targets. While the success of this new regard for legality in war can be debated, it is indisputably a step in the right direction. And it is a step taken in large part because of the awareness among military and political leaders that there was an international criminal tribunal with jurisdiction over war crimes committed anywhere in the former Yugoslavia. Whether or not mistakes were made in the choice of some targets, there can be no doubt that the number of civilian casualties would have been considerably higher but for the existence of the tribunal.

The establishment of the UN tribunals has also given rise to much debate in the political arena. The first debate, and the immense ramifications of its resolution, is too frequently forgotten. In order to establish Yugoslav tribunal in May 1993, it was necessary for the Security Council to recognise that there is a direct relationship between peace and justice. By accepting that pivotal link, it became possible to establish a criminal tribunal as a peacemaking mechanism under Chapter 7 of the UN Charter.

There was also debate over whether the tribunal would make peace negotiations difficult. Around the time of the negotiations in Dayton, Ohio, I was criticised for indicting Karadzic. As it turned out, that indictment greatly facilitated an agreement at Dayton, by excluding him from the talks. If he had been free to represent Republika Srpska, the leadership of Bosnia and Herzegovina would not have been prepared to attend the meeting - it was, after all, barely three months after the terrible massacre Srebrenica.

But that was happenstance. The real lesson I learned from the Karadzic indictment is that prosecutors should not take any account of political considerations in issuing their charges. Apart from being professionally inappropriate, neither the prosecutors nor their advisors have the political expertise on which to base such decisions.

A similar argument erupted over the Milosevic indictment which was issued during the NATO bombing of Serbia. Some critics argued that Milosevic would not compromise, and certainly never willingly stand down from office, in the face of the indictment. Both President Martti Ahtisaari of Finland and former Prime Minister Viktor Chernomyrdin, who negotiated an end of the bombing, informed me subsequently that Milosevic never mentioned the indictment to them.

Other critics suggested that the timing of this and other indictments have been influenced by the supply or withholding of security information by major western powers. But such allegations have never by given any justification in fact.

The heated debate at the moment is over the relationship between the tribunals and truth and reconciliation commissions. In the former Yugoslavia, this involves truth commissions for both Bosnia and Serbia - two very different scenarios, and both, it must be stressed, very different from the circumstances in my own South Africa.

In Bosnia, the fighting stopped soon after the Dayton Peace Accords came into effect towards the end of 1995. Civil society leaders there have long been calling for a truth commission to augment the important work of court in The Hague. They are not seeking power to grant amnesties but wish rather to have a credible platform from which victims from all communities can make their voices heard. After initial opposition from the tribunal, there is fortunately now more support for such a body.

The truth commission established by President Vojislav Kostunica in Serbia is quite another matter. He set up his commission without consulting representatives of different sections of civil society. Most damningly, he proposed his commission in an effort to justify his refusal to send Milosevic to The Hague for trial.

It is heartening that last week President George Bush is reported to have told President Kostunica that further economic aid to Serbia will depend upon full cooperation by his government with the tribunal, including the surrender for trial of Milosevic. This is the only principled approach having regard to the binding and peremptory nature of the security council resolution which established the court.

These debates, their challenging and exciting results, and the major strides taken in developing humanitarian law could not have materialised without the establishment of the tribunals. Their success is to the credit of many people, not least of whom are the community of non-governmental organisations and the media. If these important sectors of international civil society had not kept faith in the underlying philosophy of justice for victims, the tribunals may well have suffered an ignominious death, and international humanitarian law would not be burgeoning as it is today.

Richard Goldstone, a justice of the Constitutional Court in South Africa and chairman of the Independent International Commission on Kosovo, was chief prosecutor of the war crimes tribunals for ex-Yugoslavia and Rwanda from August 1994 to October 1996.