Judge at the Constitutional Court of South Africa; prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda in The Hague from 1994 untill 1996.
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It is a great honour to have been invited to deliver this Europe Lecture, the fourth Europe Lecture, this evening. It is particularly fitting perhaps – and moving in a way for my wife and me – that this is our farewell, because early tomorrow morning we leave the Netherlands. We will go to New York first, where I have to complete my term of office as the Prosecutor for the two United Nations War Crimes Tribunals, attending a number of meetings at the United Nations headquarters in New York.
It is fitting because we started on our first day with a very warm welcome from all of the people we met – particularly Dutch people – when we arrived in The Hague, and we leave with warm friendship as we say goodbye from Utrecht this evening. We have received nothing but warmth, friendship, companionship, and – most important of all – encouragement in my work from the Dutch people and the Dutch government. It makes a tremendous difference doing difficult work in pleasant surroundings. I know that my colleagues working in Kigali, where the political situation is fluid, have had a lot of problems because of having to work in difficult, uncongenial surroundings. We, on the other hand, have been very fortunate indeed.
The Dutch government has done absolutely everything that could have been imagined and expected to assist the Tribunal in every possible way. They have given protection to witnesses, assured access to the prison facilities in Scheveningen, and helped us with office problems. Most important of all, perhaps, they have assisted in resources and particularly have helped to provide financial human resources for the Rwanda Tribunal. So this is an opportunity for me to say to you, and through you to the people of your country, thank you very much, and to tell them and you how deeply appreciative all of us at the Tribunal are. In my office, we represent almost forty nations. And I know I speak on behalf of every woman and every man there when I express these feelings.
When Mr Van Traa was talking about speaking English or
speaking Dutch, I couldn’t help but think of an experience my wife had a couple of weeks after we arrived in The Hague. She went out for lunch at a restaurant. The waiter came to her and she said to him: ‘Excuse me, do you speak English?” He said: ‘Of course I speak English, I’m Dutch.” We have always marvelled at the fluency with which virtually every person in this country speaks English. Coming from South Africa has really been a disincentive, because when I tried to speak Afrikaans, people have very quickly made it clear that they prefer me to speak English.
This evening, I would like to talk about a number of things concerning the Tribunal. I hope I can still say something new, because there have been so many press interviews in the Dutch newspapers this last week, and the questions have been so intelligent and so well-prepared, that really I hesitate to get up and speak tonight for fear of saying things that many of you have already read.
Let me talk first of all about the ends of justice. And let me do it in the context that the ends of justice are no different in the international sphere than they are in the national sphere. In any country the ends of justice serve a number of purposes.
Obviously, one is the suppression of crime, the protection of society, and deterrence. In other words, stopping criminal conduct and curbing criminal propensity. Of course that’s important. One can imagine what the crime rate would be in any country if there was no police force and no criminal justice system – if there were no criminal courts – and if there was no media to tell the people what the criminal courts are doing. It is often forgotten that criminal justice and the media are in fact partners in the same business: without the one, one might as well not have the other. The essence of deterrence – suppression of crime – is letting criminals – or potential criminals – know that there is a likelihood of their being caught. (And if they are caught, they are going to be tried and if found guilty, they are going to be punished.) That is the only real deterrence. Whether you have a death sentence or life imprisonment, whatever the punishment may be, in my view and in my experience, this is far less important than the likelihood of being caught.
That is the deterrent. If people think that they are not going to be caught for speeding, they are going to break the speed limit. If they think they are going to be caught, they may break the speed limit, but the overwhelming majority of drivers do not. The same applies to drunk driving and if one moves up to the higher hierarchy of criminal conduct, to murder and rape, crimes which unfortunately plague many societies. The likelihood of being caught will not stop all criminals or potential criminals from breaking the law, but it will certainly curb the number who do. The second important end of justice is to assuage the moral indignation of victims, to publicly acknowledge to victims what has happened to them, and to provide the beginning of their healing process in that very acknowledgement. Victims frequently, and probably in the majority of cases, know who the perpetrator is, who has caused them damage, who has perhaps murdered a loved one, who has robbed them, who has raped them, whatever the case may be. They want justice to be done publicly because they want public acknowledgement. And it is in that respect that truth is very much at the heart of justice. Truth is part of public justice because it forms the public acknowledgement to the victim or victims of what has happened to them.
Turning to the international community and international justice, in the last fifty years criminality in the international community has been the worst that has ever been in the history of mankind: close to a hundred wars, probably ninety per cent of them civil wars, since the Second World War; hundreds of millions of people killed – certainly if one includes the whole century I read recently, a hundred and sixty million people killed directly in the course of war. (That is apart from indirect causes of death in war through people becoming refugees, or displaced, and so forth.)
At the end of the Cold War in 1989, when the Berlin Wall came down, there was perhaps at that time good reason to believe – naively unfortunately – that the days of war were genuinely coming to an end, that democracy would reign supreme, and that there would be peace. It didn’t turn out like that. After the Cold War a number of
nation states were overwhelmed by ethnic nationalism, resulting in civil war, strife and death, and ethnic cleansing.
It is in that context that I turn to talk about the law of war, International Humanitarian Law, to which Mr. Van Traa so articulately and accurately referred. What is the law of war? In modern days it is called International Humanitarian Law, or Humanitarian Law, for reasons I shall come to now.
The law of war goes back to the fifth century BC. In an old Chinese writing dating back to that time, reference was made to the treatment of prisoners of war. At the time, it was a relative concept, and a bilateral concept: countries at war told each other that if you don’t kill and mistreat our soldiers you capture, we will do likewise in respect of yours. People knew that if they mistreated the enemy, there would be reciprocity on the other side. That was the beginning of the law of war and it remained a reciprocal relationship really until the end of the last century. At the end of the nineteenth century, conventions were signed at The Hague – it is interesting that The Hague was already involved at that time – dealing with the way in which war was fought. Rules were made as to what weapons were acceptable and what weapons were not. This may sound strange, but it need not, because in sport, and certainly in boxing, one has rules. Boxing is a sport where people try to knock each other out, but there are rules: there are faults and things you can do and things you can’t do. And so it is in war.
The agreements of the The Hague Conventions were followed by the Geneva Conventions. The latter dealt more particularly with how non-belligerents, innocent people who were not involved in the fighting as soldiers, were to be treated. They attempted to protect innocent civilians caught up in war. They also dealt with the protection of prisoners of war – soldiers who were captured and taken out of the fighting to become non-belligerents.
What strikes many people as ironic and perhaps contradictory is that in the law of war, making war is not a war crime. Logically it can’t be, for in order there to be war crimes there has to be war. So war is a given factor in relation to war crimes.
The big change in respect to the law of war came about in consequence of the Nazi holocaust. It was realized at the end of the Second World War and the immediate years following, that the Hague and Geneva laws were simply not good enough: they made no provision for some of the terrible things that had happened in the Second World War. New Geneva conventions were passed, but more importantly, the Genocide Convention was adopted by the United Nations. It has been ratified by more countries than any other international human rights convention.
Equally important from the current perspective, were the Nuremberg trials, the law that was created and under which the Nuremberg judges operated, the judgments that the Nuremberg judges delivered, and the formal acceptance of these judgments in 1948 by a then unanimous United Nations General Assembly.
It was really a coming together of the old law of war – the The Hague and Geneva Conventions – on the one hand, and the Genocide Convention and the Nuremberg laws (in which crimes against humanity were recognized for the first time) on the other, that formed International Humanitarian Law. The inclusion of the Nuremberg laws and the Genocide Convention considerably broadened the scope of what, up to the Second World War, had been the law of war.
Before I leave this aspect it is important to point out the significance of recognition by the international community of the very concept of crimes against humanity. This was something new. Before the Second World War, the laws of war dealt with crimes committed in particular nations, in particular nation-states. The Genocide Convention broadened this concept, because under this convention every nation, every government is obliged to prosecute war criminals no matter where war crimes have been committed. War crimes have become international crimes. That was never the position before the Second World War. There was no such international jurisdiction. The notion of crimes against humanity is based on the idea that there can be a crime against humanity and not against a particular nation, against particular people; these are crimes committed against the whole of humanity. And that means that the whole of humanity, wherever represented, has the right, the jurisdiction, to put war criminals on trial. This was the law that was developed since the Second World War, continuing the tremendous developments since the end of the nineteenth century. But the remarkable, the amazing fact about that wonderful body of laws – for which credit must go to the International Committee of the Red Cross (since it was the International Committee of the Red Cross that was responsible for the Geneva laws and for seeing that they became some sort of reality even if only in the work of the International Committee of the Red Cross) – is that they were never enforced.
Nuremberg was the exception. There, International Humanitarian Law was applied by a multinational – not an international – court of the four victorious powers. Nevertheless it was applied. Since then, for almost fifty years, no attempt has been made to enforce International Humanitarian Law. What is the point of having laws if they are not enforced? They may be of interest to scholars and academics, but they have no practical use, no practical significance at all. They do not help victims, they provide no acknowledgement and they do not punish anybody – therefore they cannot act as a deterrent.
And it was therefore really a very remarkable and unexpected step when the Security Council decided to establish the International Criminal Tribunal for the Former Yugoslavia (ICTY) in May 1993. Very few international law experts ever conceived that it would be the Security Council that would establish an international criminal tribunal. It was never contemplated or seen as part of the jurisdiction, mandate or work of the Security Council.
The establishment of the Tribunal required the Security Council to make a vital link. It acted under Chapter VII of the United Nations Charter, which provides very wide peremptory powers for the Security Council but only in situations in which it has determined that a threat to international peace and security exists. Without that determination, the Security Council cannot invoke any of its powers under Chapter VII. And Chapter VII provides the only instance of the
United Nations Charter allowing any UN organ to pass a resolution that is binding under international law under the Charter. It is often forgotten that the UN Charter is a treaty. It has often been called a super-treaty because every one of the 168 member states of the UN has signed that Charter, signed that treaty, and has undertaken solemnly to carry out its terms. In doing so, these states have bound themselves in international law to carry out resolutions under Chapter VII.
With respect to the former Yugoslavia, before May 1993, in 1991, the Security Council had already determined that the situation – the war that had already begun in the former Yugoslavia – constituted a threat to international peace and security. That was not difficult to determine, for the war was obviously a threat to international peace and international security. Chapter VII can be used by the Security Council for peacekeeping purposes in a situation in which a threat to international peace and security. So, in order to create the Tribunal ,the Security Council had to establish a link between a threat to international peace and putting an end to that threat by using an international criminal tribunal. It was a link between peace and justice; it was a link between using justice to restore peace in the former Yugoslavia.
It was a vital link and a very brave decision on the part of the Security Council. I have no doubt that this unanimous decision could not even have been contemplated before the end of the Cold War. The fact that the five permanent members and the nine non-permanent members were able to make that link unanimously and to set up the Tribunal, was a quite remarkable event. This is the background, the context in which the work of the Tribunal should be regarded, should be judged. It is the background against which the conduct of the international community in relation to the Tribunal should be judged too.
Let me talk for a few minutes about the alternatives to using justice in this sort of situation.
One alternative that has also been used and is still being used – very much so, in fact – in the former Yugoslavia, is armed intervention. You do not have to set up a court, you send in an army, and force
people to stop fighting and killing and raping each other. IFOR is a very expensive operation. Our tribunal in The Hague spends less in a year than IFOR costs in a day.
So when it comes to costs, to the extent to which we can be successful in assisting to bring peace in the former Yugoslavia or Rwanda, the Tribunal is by far and overwhelmingly the cheapest form of peacekeeping available to the international community. Whether it succeeds or not, of course, is another matter.
An alternative, also applied in the former Yugoslavia and Rwanda, is humanitarian relief. Unfortunately, for that to become a viable option, there has to be a situation in which millions of people have become refugees and hundreds of thousands of people have been killed; a situation in which the international community gets into gear and decides to bring humanitarian relief to a particular area. This is obviously vitally important.
The same applies to refugee aid. Both humanitarian relief and assistance to refugees or displaced persons only become relevant after terrible things have happened.
As a means of peacekeeping, justice – unlike humanitarian relief and refugee aid – need not wait until these horrible things have happened. Justice can be used, and certainly a permanent court, in my view, would have the effect of helping to prevent war and war crimes before they happen.
The International Criminal Tribunal for Rwanda (ICTR) was an easier affair to set up. There was the precedent already created for Yugoslavia. In 1994, at the time of the genocide in Rwanda, the new Rwandan government that had put a stop to the killings in the middle of 1994, happened to be a member of the Security Council. It requested the creation of an international tribunal for Rwanda. The Security Council agreed, thirteen votes in favour, China abstained, and Rwanda – for unfortunate reasons – voted against. Rwanda voted against, not because it did not want the Tribunal. It always wanted and still wants the Tribunal. It voted against due to some misunderstandings on the part of Rwandan government. Rwanda, for example, did not realize that there could be no question of a death sentence. Rwanda objected to this for reasons which are not difficult to understand. It also objected to the Tribunal’s jurisdiction being limited to the 1994 calendar year. And finally it objected to the fact that the Tribunal would not have its seat in Rwanda itself, but in Arusha in Tanzania, a neighbouring country.
These were the reasons for Rwandan opposition at the United Nations. Since then, two of these objections remain. The most important is the absence of the death penalty, for it creates an imbalance and injustice – one has to accept that. As part of its strategy, the International Tribunal will target the most significant of the leaders of the genocide, of the killings. And they, in that forum, cannot be sentenced to death. The national Rwandan courts, which are still not operating but hopefully soon will be, will be trying people whose guilt is less and whom they will be sentencing to death. This is an imbalance. The Rwandan government is concerned about the effect that this could have on the people in Rwanda. The two peoples or tribes, Hutus and Tutsis, are going to have to live together somehow. It may be that the Rwandan government will have to consider commuting death sentences in appropriate cases in order to restore the balance. That’s merely a suggestion and obviously it is going to be up to the political leaders of Rwanda to decide how to handle this unbalance created by the absence of a death sentence in the powers of punishment of the International Tribunal.
I mention the Rwanda Tribunal particularly, because unfortunately, the Rwanda Tribunal has virtually disappeared from public view. The media in North America and Europe has more or less lost interest in the Rwanda Tribunal.
I say this not in criticism, because I understand it. When I go to Nairobi, as I frequently do on the way to or from Rwanda, I usually read a lot about the Rwanda Tribunal in the Kenyan press and very little about the Yugoslavia Tribunal. People are obviously more interested in what is happening in their own region. They are more interested in knowing what is happening to people they can identify with, people who look like themselves and people they can associate themselves with, than in knowing what is happening to people from a different continent who are less familiar.
But it is important that, in the Rwanda Tribunal, we have issued indictments against 21 accused. Just under fifty per cent, ten of them, have been detained. Three have been transferred to the seat of the Tribunal in Arusha, and seven are awaiting transfer from a number of countries in Africa and Europe. Almost fifty per cent! I wish we could have the same figures at the Yugoslavia Tribunal. One of the people who has been detained in Cameroon, Colonel Theoneste Bagosora, was – according to general reports on what happened in Rwanda in the middle of 1994 – one of the main architects of the killings and other war crimes that were committed in Rwanda. He was indicted some four weeks ago. We expect him to stand trial some time in the first half of next year.
What are the consequences to date of the International Criminal Tribunals? Let me go back to the Yugoslavia Tribunal. Of course, as Mr Van Traa so correctly and so relevantly observed, it is a great frustration and disappointment to all of us working in The Hague, that we only have 7 out of some 74 people who have been indicted at the Yugoslavia Tribunal in The Hague: one on trial, one already found guilty awaiting sentence, Mr Erdemovic, and 5 awaiting trial. The most important people we have indicted, Mr Kordic, the political leader of the Bosnian Croats, Mr Karadzic, the political leader of the Bosnian Serbs, and General Mladic, the leader of the Bosnian Serb army, have been indicted for the most serious crimes known to human kind: genocide, involving the murder of many tens of thousands of people, – in the case of Karadzic and Mladic – for the sniping of innocent civilians – men, women and children – in Sarajevo, and ethnic cleansing in many parts of Bosnia and Herzegovina.
Of course, it is unsatisfactory and, as I have said repeatedly in the last few weeks, if one looks at it from the perspective of the victims, it is a very unhappy situation. Unfortunately, many of the politicians, whose decision it is and was, have given IFOR what I referred to in an interview with an English newspaper earlier this week as a really pusillanimous mandate. You see, one must accept – and the North Atlantic Council has accepted, as it must because that is the legal position – that IFOR has the legal power under international law to detain people.
That flows from the Dayton agreement, signed in Paris. The Dayton agreement was formally approved by the Security Council acting under Chapter VII and requesting all countries involved, all governments involved, to cooperate in implementing the Dayton peace agreement.
The parties to that agreement – which do not include IFOR but do include the then administrations in Bosnia and Herzegovina, and the governments of Croatia and the Federal Republic of Yugoslavia consisting of Serbia and Montenegro – undertook to comply with orders of the International Criminal Tribunal. That is in the agreement they signed. And at Dayton, IFOR was given a mandate to assist the parties in implementing their obligations. So specifically in relation to the War Crime Tribunal, IFOR was given the mandate, binding and legal in international law, to assist the parties to comply with the orders and warrants of arrest issued by the International Tribunal.
This was recognized in the mandate that was given to IFOR: they were told they could detain, they must detain people they come across in the ordinary course of their activities. In other words, if any of the indicted war criminals is suicidal, or stupid, and presents himself to IFOR, he must be detained. Of course, nobody seriously anticipated that arrests would take place under that mandate. And in almost a year since IFOR has been in Bosnia, not a single arrest has been effected. It is not a mandate that could have been intended to lead to arrests.
But the important point I am making at the moment, is that the North Atlantic Council, which is the political body controlling NATO and which determines the mandate of IFOR, accepted that IFOR has the power to detain. And it gave IFOR a limited mandate under that power.
Now clearly the primary obligation to arrest is on the parties, on the governments in the former Yugoslavia. That is clear. It is their duty under the Security Council resolution. IFOR’s involvement is a secondary one. But nevertheless it is involved. The North Atlantic Council could, of course, have instructed IFOR to go out and arrest people.
In his pertinent remarks, Mr Van Traa again referred to the question that was put to me: how do you explain to a mother in Omaha, Nebraska, that her son has been injured or killed going to arrest a war criminal? I did give the answer. I said: the same way as one would explain to that mother if her son had decided to become a policeman and been injured or killed going to arrest a dangerous criminal in Nebraska.
If people join armies, if countries have armies, and if armies are sent to foreign countries, that is a dangerous thing to do. Danger is inherent in fighting wars. We cannot simply say that we are not going to let our boys in the army do anything dangerous. Don’t send the army if they are not going to do what armies are supposed and expected to do. And how dangerous is it to go and arrest war criminals? It may be that hostages could be taken. I do not want to underestimate the difficulties. I would not like to be the commander who tells people to go out and arrest war criminals. And it may be that in certain circumstances the prudent thing to do would be to forget about some, and go after others. But again, imagine feelings of the victims, those who have suffered death in their immediate family, who have been raped themselves, or whose wives, or mothers, or children have been raped. They are told that the people responsible, who have been indicted as suspected war criminals, are going to be left alone, because the masters of the armed forces – 60,000 strong, with the most modern weaponry and the best intelligence in the world – consider it too dangerous to take action. Put yourself in the position of victims who have been told that we are going to give them an international court, we are going to give them justice, but we are not going to arrest the people who are thought to be responsible for what has happened to them.
It really is not good enough. The international community itself set up the Tribunal. The warrants of arrest that we issue, are issued in the name of the international community, they are issued in the name of the Security Council. What is wanting is political will on the part of the international community. If the International Tribunal fails, as it could and probably will, if this continues for long enough – if we are not allowed to do the job we were created to do, what is the point in keeping the Tribunal going – it will be the end of any thought of enforcing International Humanitarian Law for the foreseeable future. I mean for about the next fifty if not a hundred years. There will be no deterrent, and war criminals will know that they can go on committing war crimes, killing and raping hundreds of thousands of
people, with impunity: they will not be caught, not put on trial, and they will not be punished. I believe that this situation will only change if there is sufficient public demand – certainly in the democracies of the world – to bring war criminals to trial; only if political leaders know that people are not satisfied with this sort of conduct in the international community, will something be done about it. And it is everbody’s business in every country – not only from a moral point of view, not only because these are crimes against humanity, though I think that should be enough. Any decent person in any country has an interest in seeing that this sort of conduct stops. But there also is a personal, more material interest. The Dutch government is a particularly good example – and Rwanda is a good example. Holland never had any historical relationship with Rwanda. In its colonial days, it never had any connection with Rwanda. But the Dutch people have paid a great deal of money, I think it was 65 million US dollars in 1995 alone, to help bring material assistance to the people of Rwanda. And ten million dollars of assistance to our Rwanda Tribunal. Other countries in the area, the frontline states around Rwanda, have suffered grievously. There are millions of refugees, who have to be fed and looked after, who cause political instability in the country. So we can no longer just shrug our shoulders in our globalized world. What happens on one continent affects people on an other and certainly affects people on the continents themselves. So we have an interest in seeing that this sort of conduct stops.
It is here particularly that I believe there is an important role for the media. Without public pressure, without media support, I do not believe that the International Tribunals would have been created. True, there was not only media pressure; there were the political events at the time, but the instant pictures that went through the electronic media in particular galvanized the human rights community, galvanized decent people and governments of democratic countries, pressured the United Nations Security Council to set up the Tribunals. Without media pressure reflecting public beliefs, the tribunals would not have received the resources and, in my view, without continued pressure from the public and the media, the Tribunals will not be able to get indicted war criminals arrested.
What are the successes and failures of the Tribunals to date? Firstly, I do not believe there would have been a Dayton agreement if Mr Karadzic had not been indicted. Because, had he not been indicted, he would have been at Dayton or wherever else the negotiations took place. And if he had been there, there would have been no agreement. I doubt whether all the parties would have agreed to sit around the table with him, considering what was already known about his involvement.
That was the beginning, one aspect. Dayton has certainly had the effect of stopping the fighting. Fairly frequently, one sees pictures of people able to return to some sort of normal existence in all parts of Bosnia and Herzegovina, and it is particularly striking to see people at an athletics meeting in Sarajevo. Pictures of people enjoying themselves at an international athletics meeting rather than people running to avoid snipers in snipers’ alley. That is important.
The Tribunals, both for the former Yugoslavia and Rwanda, are in business. Both are at the beginning of the trial stage. We are being taken seriously, we are in the political arena, and for that reason we have arrived. If we continue, we are going to be playing a very much more important role in restoring peace in the former Yugoslavia and in enabling reconciliation to take place in Rwanda. The war criminals in Bosnia have become pariahs. They have become prisoners in a very small area within their own country. They are not even free to move around their own country. If Mr Karadzic or General Mladic were to visit Sarajevo today, they would be arrested by the Bosnian police. If they were to visit the Croatian controlled parts of Bosnia, their own country, they would be arrested by the Bosnian-Croatian police. If Mr. Kordic went to Banjaluka, he would no doubt be arrested by the Bosnian-Serb police.
The election results are virtually all in. And the big question is what the result of this election will be. Broadly speaking, there are two possibilities. The nationalist madness could continue, and – notwithstanding Dayton – Bosnia and Herzegovina could disintegrate completely. Nationalist Serbs may secede, leaving Bosnia and rejoining Serbia. The same could happen on the Croatian side. The Bosnian-Croats could leave Bosnia and Herzegovina and become part of Croatia. If the one happens, the other is likely to follow.
The other possibility, of course, is that the Dayton agreement will be fulfilled. That there will be a multinational, multi-ethnic Bosnia and Herzegovina. And that it will become a fully-fledged, active member of the international community, as a member of the United Nations and presumably one day as a member of the European Community. That is the hopeful side of it.
If the pessimistic scenario proves to be correct, then I think the prospects of arrests being effected by the parties themselves are virtually non-existent. If the Serbs join Serbia and if the Croats join Croatia and the Muslims are left in their little enclave around Sarajevo, then clearly the prospects of arrests are diminished considerably.
On the other hand, if the Dayton agreement is implemented, if Bosnia and Herzegovina proves effectively to be viable, then in the next few months there will be a new parliament and a new constitutional court constituted. And in terms of the constitution of Bosnia and Herzegovina under the Dayton agreement, the requests and warrants of arrest of the International Criminal Tribunal take precedence over all other laws. It will be the obligation of the police of the whole of Bosnia and Herzegovina to arrest war criminals and see that they are sent to The Hague for trial.
It could happen. This is the optimism I have, because from a realistic point of view, if one looks at the Realpolitik, former leaders are not very important. Politicians in office are important. Former politicians somehow lose their importance and for obvious reasons: they have become expendable.
I believe that, if they want to rejoin the international community, it will be in the interest of all people in Bosnia and Herzegovina to arrest and hand over war criminals. And the international community has advanced. Respect for human rights has become an important yardstick, certainly in Europe and North America, and certainly in many countries in Latin America and I am happy to say also in Africa and Asia. In the international monetary community, human rights have suddenly become an important yardstick for the International Monetary Fund (IMF). Not because the financial people running the IMF have become great humanitarians, but because they know that countries that respect human rights are much more likely to pay their debts, than countries that do not respect human rights.
The world is growing smaller and in that smaller world human rights are gaining in importance, and again, not only for moral reasons but because of the material interests of communities, governments and people.
So, as far as I’m concerned, all is not doom and gloom with regard to the question of war criminals being arrested in the former Yugoslavia.
In Rwanda, as I have said, things are better already and for a different reason. All the Rwandan leaders who were responsible for the genocide in 1994 fled the country. And many of them took the treasures and money of the government with them. Many of them are
living in luxury in Europe, in North America and in Africa. And those arrested by governments cooperating in Africa and in Europe are the leaders. These governments are agreeing to send them to trial in Arusha. So the situation in respect of arresting people in leadership positions is much easier than in the case of the former Yugoslavia.
There are other important benefits from the Tribunals that should not be overlooked: the law of war, war crimes, has suddenly become an issue. Not a day goes by without reference to it in newspapers in most countries, certainly in the democratic world. It is being taught at universities. It was a very limited subject before 1993. It was taught in some military colleges. There was no media interest – for the simple reason that is was of academic interest only. But it has suddenly come to the fore. I cannot believe that military and political leaders everywhere in the world have not become aware of International Humanitarian Law, and I have no doubt that this must have an effect, great or small, on their thinking and on the way that wars are fought and the nature of orders that are given. Like all other laws, it will not stop criminal conduct, it will not stop war crimes, but it certainly can act as a curb, as a disincentive in that respect.
The other tremendous success of the International Criminal Tribunals has been that, for the first time in history, rape and other gender offences have been recognised as war crimes. It is no coincidence, it seems to me, that suddenly in the 1990s there is such a thing as systematic mass rape in the former Yugoslavia on the European continent, and in Rwanda on the African continent. It is, no doubt a distinct probability that systematic mass rape is as old as war itself. It has never been reported – probably because the reporters were men. It was taken for granted that if there is war, property gets plundered and women get raped. If one looks at most of the conventions, most of the laws of war, the question of rape, of gender crimes, has been sadly neglected. In three of the four areas where we have jurisdiction, there is no mention of rape at all. In the Genocide Convention there is no mention at all of gender related crimes.
We were determined from the beginning to ensure that – not- withstanding any deficiency in the laws of war and in International Humanitarian Law – we were not going to be prevented from dealing with gender related crimes in the way they should be dealt with – and that is as one of the most serious examples of war crimes. As a consequence, the law of war has changed. We have repeatedly brought charges of rape or gender related crimes in the Yugoslavia Tribunal and they will form an important part of many indictments in the Rwanda Tribunal. And there are other effects too. The way in which rape is treated by the International Tribunals will have a resonance, will effect the way rape and gender crimes are treated in many national states. What we do for witnesses, how we treat witnesses, how victims are treated in the International Tribunals, must have repercussions in many national states.
So there are many important developments and for that reason I must confess that, as I leave The Hague today, I have a reasonably substantial amount of positive feelings, of success in what the Tribunals have achieved thus far.
But we’re still in critical danger, we are not out of the woods. As we have crossed one hurdle, so other hurdles have appeared. And there will be many hurdles: resources; getting governments to understand that we can be dealt with, that we can be trusted, that we do not act recklessly, that we do not send our investigators to foreign countries without the consent of governments, that we act in terms of international law and diplomatic reality.
Mr Van Traa also referred to the need for a permanent court. From what I have said, that goes without saying. Unless what I have said really is nonsense, the international community needs a permanent International Criminal Court; an independent Prosecutor who can investigate and prosecute war crimes wherever they occur. And when I say an independent Prosecutor, what helps make me independent, is that I have professional lawyers, investigators, analysts, computer technicians from forty countries working with me – 180 people working in the office in The Hague. With that sort of staff a political agenda will be impossible, I assure you. If we had a political agenda, if we were anti-Serb, or anti-Muslim, or anti-Hutu, or anti-Tutsi, the international community would know in twenty-four hours. Because people in my office would not put up with it. They would go home, shouting from the rooftops that this is not a Prosecutor’s office, it is a political office with a political agenda. So, by having broadly based, professional officers, the international community can have independence, and create independent institutions.
And if there was an independent Prosecutor’s office that could quickly investigate war crimes, or alleged war crimes, in countries, under power of international law immediately, I believe that this would have a tremendously important deterrent effect. If something happened in the Middle East, or in Northern Ireland, or anywhere you like, and the Prosecutor was able to send competent investigators within twenty-four or forty-eight hours to ask the Head of Army or the Minister of Defence to explain conduct or events in a particular area, I cannot but believe that in many cases, perhaps not all, but in many cases, this would be significant, and it would not be discriminatory. It is discriminatory for the Security Council to decide to investigate war crimes in the former Yugoslavia, in Rwanda, but not in Cambodia, not in Iraq, and not in many other places where terrible war crimes have been committed. So in conclusion, Ladies and Gentlemen, again I wish to express my thanks to you for coming here this evening. It is an impressive audience, not only because of its size, but also because of the eminent, important people who are here and the tremendous turnout from the media.
It remains only for me to welcome here this evening my successor, Judge Louise Arbour, formerly a member of the Supreme Court of Ontario in Canada. One of the reasons I go away really content is that I know that I have an absolutely competent and appropriate successor to carry on the work in the Prosecutor’s offices for both the Tribunal for the former Yugoslavia and Rwanda. So I welcome her, I wish her good luck. I envy her the friendship, the support, and the encouragement of the Dutch people, because I know that it will be given to her as generously as it has been given to me. Thank you very much.