Institute for War and Peace Reporting | Giving Voice, Driving Change

McDonald 'Not Angry, But Saddened' By UN Security Council

Tribunal Update 152: Last Week in The Hague (November 15-20, 1999)

At the time she seemed angry. "It is time," she told the Council, "for this complacency to cease!" But speaking to Tribunal Update afterwards, however, she said that she was not so much angered as saddened by the SC. "No, no, I am not angry because I understand the process. The SC is a political body and I understand that representatives represent states."

"But it seems to me that when they come together, they are then representing the international community and what I am concerned about is that the interests of the states that the representatives seem to be representing are paramount to the interest of international peace and security. It doesn't make me angry, it saddens me."

"I am so committed to the process and I expect other people to be committed to the process. But the SC is a different creature, so to speak - it is not a judicial body. All I can do is to report to the SC and at this instance bring to the entire General Assembly my concerns about the failure of the SC to act."

Although saddened, Judge McDonald is ready to admit that the international community's level of support for the Tribunal has changed tremendously over the past six years. Initially the world community seemed negligent then periodically irritated by the perceived "political consequences" of some of the indictments (such as that of Karadzic and Mladic in 1995). Bit since then the international community has finally realised that without some form of justice there cannot be lasting peace in Bosnia, Croatia or Kosovo.

"I have read that in the Tribunal Update and I remember your characterisation. That's a very apt characterisation. When we were initially established there were many individuals who held that we should not be established because our existence would be counter-productive to the peace process."

"Other individuals or states hoped that we would be established but we wouldn't really get off the ground. In fact, we've got off the ground and now we are in that third phase perhaps, as a tribunal, effectively functioning on a daily basis. Yes, I have concerns about the tribunal but we've come a long way in six years and it is almost miraculous that an international institution can be created and be in the position we are in now - functioning effectively after a very short period of six years."

"Internally we are functioning well. Externally, we have the very same problems that confronted us in many respects when we were established. That is the non-compliance, as I reported to the General Assembly, the non-compliance of the FRY, most notably Serbia, the non-compliance of Republika Srpska, the non-compliance of the Republic of Croatia. But we have no control over that."

Tribunal Update noted Prosecutor Carla Del Ponte's interesting question to the SC only a few days earlier: how to arrest those accused who are "beyond the reach" of western-led forces in Bosnia and Kosovo. She invited the SC to be "creative in finding ways" to do so.

McDonald was the presiding judge in a key Tribunal ruling on the legality of one such 'creative' step - in the case of former mayor of Vukovar Slavko Dokmanovic, arrested in Serb-held Croatian Eastern Slavonia without the knowledge or cooperation of the Serb authorities, on a sealed 'secret' warrant.

Tribunal Update asked how "creative" the SC or the international community could be in finding ways to arrest an indicted head of state, for example.

"What happened in the Dokmanovic case basically was that Mr Dokmanovic left the FRY for a meeting and the meeting was not what he expected. He had been indicted, the indictment was under seal and he was arrested. That is an example of creativity, which the tribunal has upheld."

"What is important is that the will be there. If the will is there, a way will be found. That is what I am concerned about - whether the SC collectively has the will to take the necessary action to give the full support to the Tribunal that it needs - in terms of bringing into the fold of the law the non-abiding nations, those states that basically wrinkle their nose at us."

According to the defence team of another defendant allegedly 'kidnapped' by NATO forces and shipped to The Hague - former Bosanski Samac police chief Stevan Todorovic, charged with murder, rape and torture of Bosnian Croats and Muslims - the tribunal ought "to have higher standards than national enforcement agencies."

But Judge McDonald points out that the rules of the tribunal already "embody the highest of international standards".

Then she adds: "But we also have to take into consideration the practicalities of a situation, so that when Serbia is not transferring individuals and is not hiding this fact, it seems to me we have to take that into account in terms of how individuals are brought to the tribunal. And that's about all I can say."

Tribunal Update pointed out that the US administration has offered five million dollars as a reward for information leading to the arrest of certain fugitives from international justice and asked whether such "head hunting" would be legally and ethically acceptable for the Tribunal.

Judge McDonald once again emphasised that it would be "highly improper" for her to make any judgement in advance about the legality of a procedure, but stressed that that practice is used in many countries. "Yes, it is used in the US. We have a (US) Supreme Court case, McCain, relating to a case where an individual was kidnapped from Mexico and brought to California, in which the US Supreme court held that the courts will not look at how a person has been brought to the court."

"That is, it does not affect the court's jurisdiction. Now, whether our tribunal should adopt that position or not - I don't have an opinion that I think is appropriate at this time. I think you have to look at a situation on a case by case basis. What may be necessary in one situation is not necessary in another."

"Right now, Serbia as well as Republika Srpska have become safe havens for indictees. We have to look at the situation and at what needs to be done to bring about compliance. Unfortunately I can't give my stamp of approval to any particular method of bringing people to the tribunal, except in what is referred to as case or controversy. I would not want to prejudge it, that's up to the judges to decide."

Judge McDonald does not wish to speculate about a possible "way out" for President Milosevic, whereby he would be offered exile somewhere in a return for his stepping down and for Serbia's peaceful transition to democracy. According to her, such a "way out", simply, does not exist:

"In my judgement there is no way out for Mr Milosevic except to come to The Hague. He has been indicted by the tribunal. We have primacy. All states are obligated to comply with orders of the tribunal because we were established under Chapter VII of the UN Charter and that's the end of the matter. He has to come to The Hague, to the tribunal. I can't imagine any legally acceptable way of avoiding that."

In her address to the UN General Assembly Judge McDonald warned that that the international community "is bound to go the way of the League of Nations... if it does not ensure that the orders of the ICC (the putative International Criminal Court) are enforced."

So since the question of ICC location has been resolved - it will be based at The Hague - will the next three most important things for the ICC, as for the ICTY, be enforcement, enforcement and enforcement?

"Yes I agree. And I am not the only person who has said that if the permanent ICC faces the problems we have faced, in terms of lack of enforcement, it too will have difficulties. The establishment of the permanent ICC is important. It is important in a symbolic sense because their subject matter jurisdictions are those international norms that the world community has held to be imperative."

"So now, what we are finally doing is creating an enforcement-mechanism-like court to enforce these proscriptions. But beyond this symbolic sense I think that the ICC can act as a deterrent certainly, it can do possibly what weà cannot do since we were established after the conflict began."

"So to the extent that a judicial system deters criminal behaviour - that is important. But the major problem is the enforcement. It won't work if you don't have enforcement. You've got to have a complete cooperation by the state."

McDonald admits that the ICTY experience in that field is not very encouraging, but points to what, according to her, is a significant difference.

"We were created for the former Yugoslavia. The former Yugoslavia did not ask for the tribunal, it was created by the SC, imposed upon the former Yugoslavia - and correctly so. Here you have a permanent ICC where states themselves have said: this is what we want. If it's true that this is what they want and that they want it to be effective, then it should be effective. But time will tell."

Summing up the balance sheet of the first six years of the tribunal, McDonald says: "We have more credits then we have debits. We have demonstrated that international criminal justice is possible. That is a major contribution. "

"We have created an international institution in a very short period of time, if you consider the time it takes for the national systems to create a system. We have, in my judgement, created a system that provides for fair and impartial trials.

"We have actually conducted the trials. When we finished the Tadic case someone else asked me how I felt. I said I felt like we had built an aeroplane - and it flew. There was some turbulence but it landed intact. Those are credits."

"We have also some debits. We have no control over - and that is a major one - non-cooperation of states... Republika Srpska, the FRY and Croatia.

"I am concerned, as I indicated in my speech to the General Assembly, about the length of our trials. I understand that the issues are complex and there are number of reasons why our trials are longer than some trials in national juridicial systems."

"But our trials need to be longer. We shouldn't just rush through our cases so that we get some kind of a prize for finishing our case in a short period of time. I am also concerned about the effect it has on the people in custody.

"They are presumed to be innocent. Unfortunately we cannot reach the trial stage for some of these individuals because we are fully occupied in our three courtrooms with our three trial chambers. I am concerned about that."

Judge McDonald is leaving the tribunal with full confidence in its future and sure that the ICTY will be around long enough to try all those responsible for war crimes, including some heads of states.

"The future of the tribunal, as I see it, is that it should be a tribunal that focuses on major individuals, persons who have a position of responsibility and who are charged here. That should be our focus. We only have three trial chambers and three courtrooms. It seems to me that we should be focusing our efforts in those areas so that we can help to bring about peace."

"I think we can achieve that by focusing on major individuals. I can't give you a time line but it would certainly take another four, five years to complete the cases we have now - trials and appeals."

"From my perspective, at this point, given the support we have from the General Assembly - we will be around long enough to try major indicted individuals, including heads of states. I don't see the tribunal being discontinued. But there are over 30 publicly indicted persons who are at liberty. Let's suppose that they are not surrendered or arrested until ten years from now. Will we be around to wait for them to come? I don't know.

"Yes the ICC will be around and maybe it would take over our jurisdiction... But their cases will not disappear. The indictments are there. There is no statute of limitations on war crimes. We now see people who are charged with committing war crimes during WW II being tried, over 50 years later."

"The question, though, is what would be the forum for the trials. States have concurrent jurisdiction. So even though the tribunal has indicted these individuals, all states still have concurrent jurisdiction over these crimes as well.

For grave breaches, there is an obligation for the states who signed the Geneva convention to search out or try such individuals. I don't know that the tribunal would be around for all of these 30-plus indictees who have been publicly charged."

"But there is no statute of limitation, there is concurrent jurisdiction. Believe me, there are creative ways to resolve the problem. But with respect to those now in custody, I'd imagine five years would be my guess to complete those cases. It may even be longer. We have two years left on the second four-year mandate. And with another four-year mandate, that would really be six years.

"Perhaps we could complete all the trials and appeals... But there is no statute of limitation, they have been indicted and the person indicted will be pariahs in their own community."