11th Mandeville Lecture
11th Mandeville Lecture held on 13th of October 2005
By Carla Del Ponte
Prosecutor of the International
Criminal Tribunal for the former Yugoslavia
“Virtues and vices versus legality: The Thorny road of International Justice.”
Esteemed Rector Magnificus (Prof. SWJ Lamberts), Excellences, Ladies and Gentlemen,
I am honoured to be called to deliver this year’s Mandeville lecture following in the footsteps of 10 other lecturers, invited to explore unconventional ideas through their own experience. It is indeed a great privilege and serious challenge to have this address presented within the framework of the Erasmus University Rotterdam, so well known for its academic and scientific excellence.
As a prosecutor and practitioner of criminal law and international criminal law, I will endeavour to speak about my legal experience through the prism of Mandeville’s theory.
There appears to be a link between the spirit of Desiderius Erasmus (1469-1536), an original philosopher, writer and humanist with his great influence on the intellectual and cultural climate of the Renaissance through the written word, and the spirit of innovative and somewhat provocative thinking of Bernard Mandeville (1670-1733). Though different and separated by two centuries – both, in many ways, explored the opposite sides – virtues and vices – of their societies and human nature.
Obviously – these features of human nature impact on all aspects of our life, the world of lawyers and law enforcement not excluded. In their extreme they could lead to a breach of law and, therefore, provide lawyers with work (which is good both for lawyers and for the society, according to Mandeville). In the mild forms – they could be part of our everyday life, also part of competitive legal procedures or part of one’s career building. Certainly, the human kind has developed further its ethical principles and rule of law since the 18th century, but on the individual level not much has changed in regard to private vices and virtues, the bad and the good parts of human nature.
Mandeville’s is regarded essentially as an original mind. His “Fable of the Bees” made a public scandal, and was twice presented by the Grand Jury as a public nuisance, and was denounced by many public figures of the time. As with many other parts of society, he was somewhat critical about lawyers, expensive lawsuits, loopholes in the law and so forth. But at the end his conclusion was that “…Vice nursed Ingenuity”, an important feature of progress of the society.
Mandeville’s ideas had effect in three fields – literature, ethics, and economics – with the greatest impact on economics. The Fable of the Bees is regarded as ‘in brilliance and completeness surpassing all previous defences of luxury’. Mandeville maintained explicitly the well known ‘laisser-faire’ economic theory of rising capitalism – the liberal market economy in other words, with a strong emphasise on the philosophy of individualism. It may be that Sir Winston Churchill had Mandeville’s paradox in mind when he noted that “the inherent vice of capitalism was unequal sharing of blessings…(while) the inherent virtue of socialism was the equal sharing of miseries”.
A position as rigorous as that of the Fable of the Bees, later was taken by the famous German philosopher Immanuel Kant (1724-1804), who like Mandeville, refused the name of ‘moral’ to actions dictated by personal preference. In his classification of ethical system types, Kant chose Mandeville’s name as that by which to identify one of the six systems.
Without going deeper in Mandeville’s theory and thinking, and their impact, it is essential to observe that his playing with paradox ethical norms had a clear limit - the Law. In his words:
“…Vice is beneficial found, When it’s by Justice lopt and bound”.
Competition and calls of nature, human passions according to Mandeville may lead the progress of society; vices maybe beneficial in terms of the same competition and progress: survival of the fittest, private greed, and envy could propel people to work more, harder and better achieving specific results and wealth.
In the legal world - selfishness (not necessarily love for the truth) or fear (not necessarily courage) – could lead some to testify, point the finger at the criminal or criminal act. Here competition is an essential part of the legal process: fair trial provides both parties in the process – prosecution and defence – to present their best possible efforts and evidence against or in favour of a suspect. Naturally, even in the due process with all respect to the rules, human vices may direct some people, for whatever reason, accuse others baselessly, what in turn may lead to flawed prosecutions and erroneous judgements. Therefore, Law must be respected beyond virtues and vices. Mandeville noted a paradox that even virtues, like pity, could lead to wrong decisions – for instance, finding a way into the mind of a judge and influencing his/ her decision on the point of law (“Pity …. has corrupted the integrity of the Judges”, he wrote). Prejudices based on specific virtues or vices must be avoided in the courtrooms, obviously.
When it comes to studying, we all know but not at all times able to admit, that it is not always a pure desire for new knowledge which is a main driving force. Envy, pride and greed could be the cause of competitiveness between the students or scientists, while achievement of better academic results could lead to very inventive ways of cheating. Is it about “nursing Ingenuity”, in words of Mandeville? The same could occur in building a career. However, the same vices could cause great moral suffering to other people if competitiveness is unfair, if results are achieved in the wrong way, and not necessarily criminal. A lie is not crime, but it could easily destroy one’s career or self esteem, while propelling the other to the top. It is highly doubtful whether the overall impact of let’s call it “vice-based progress” would be beneficial to society.
In international relations competition and envy, could be very beneficial for the citizens – if the aim of competition is about increase of the welfare, improvement of their well-being and social rights. But just as easily, as has occurred for centuries, it could drive some countries to achieve more power and control of territories and resources, leading to ever greater sufferings, wars and devastation. In the globalisation of the present day – strive for higher profit (safely to be called greed) may not always lead to the public benefit; it might benefit some to the detriment of many others.
As a lawyer I am dealing with the law and procedures. Much of the subjects from Mandeville’s theory are not relevant to the legal professionals. However, unavoidably, dealing with the crimes and criminals we face private vices and virtues at work – where some committed crimes or aided and abetted crimes, the others - suffered, defended themselves or their families. We are dealing with the world of villains and victims, with the world of twisted and mixed moral values. This is a cruel world, where virtues are revealed very seldom and where vices are in abundance. Where pride, particularly national pride, could be a reason for extreme nationalism and racism leading to crimes against people of other nationality or religion.
In a war, especially such as a conflict burdened by strong nationalistic sentiments and layers of historical mythology, people tend to behave differently than it is usual for the peace-time. Some reveal their virtuous part, but many – their vicious nature. And then suddenly we see former nice neighbours turning out to be nasty thugs, rapists and murderers. But to tell you the truth, it would be easy to deal with such local thugs and looters, if they were most responsible. They were not. Dealing seriously with the war crimes committed in a complex conflict – means to deal with their national leaders, politicians and commanders, those who led them, incited them with bloodthirsty ideas, propaganda. Responsible are those who fuelled extreme nationalism and allowed it to prey on others. The difficulty is with those who pushed people into the conflicts for supposedly a good national cause and with presumption of total impunity for their actions against the enemy. These are exactly the leaders who are the subject of our work.
Our purpose is to identify the criminal acts (most serious crimes), find those responsible at the highest possible level, charge them and prosecute them in a fair process. Our goal is, therefore, that justice to the victims and communities is done. We are not dealing principally with moral issues, but with the violations of the international conventions and norms of law. These legal instruments – like our Statute and Rules, the Geneva Conventions, the Genocide Convention, international customary law – are applicable universally to all countries, including to all sides in a conflict.
Unavoidably, there are victims in each armed conflict; innocent civilians suffer on every side of a conflict. That is why the norms of international humanitarian law, developed extensively since the First and especially Second World Wars, are primarily designed to protect those vulnerable groups - unarmed and powerless. And, therefore, you see basically all groups of perpetrators before the Tribunal in The Hague – we are not here to dispense victor’s justice. In that sense we were lucky not to have a mandate to investigate aggression and aggressors, but to explore individual criminal responsibility for the most serious crimes committed by any side in the conflicts of the 1990-s.
With the ICTY in place since 1993, even before the war in the Balkans had ended, the mentioned international legal instruments were for the first time put to the practical test.
Speaking about the concrete work and achievements of the ICTY, I shall better leave for the outside observers to explore whether the Mandeville’s understanding of human nature is of assistance in this case. There is no doubt about one thing though – people who work in the Tribunal are no different from other human beings and nothing human, including mistakes, is alien to them (Terentius: “Homo sum: humani nil a me alienum puto”.) I can testify, however, that we are doing our best to achieve justice through fair process.
At this juncture the Tribunal has served the purpose of international justice for 12 years, while principal armed conflicts stopped 10 years ago in Croatia and Bosnia and Herzegovina and 6 years ago – for Kosovo. From the point of view of the development of the international humanitarian law even the establishment of the Tribunal was a considerable success. In terms of accumulated wealth of knowledge, practice and jurisprudence – indeed, both ad hoc Tribunals for the former Yugoslavia and Rwanda (linked through the same Appeals Chamber) contributed greatly to the cause of justice. For the first time the jurists from different legal, political, cultural systems have come together to participate in adjudication of criminal cases in the international courts. This blend of legal cultures resulted in international criminal law proceedings evolving into a kind of hybrid of major legal systems, making it unique and important for the future.
The legal power of the ad hoc Tribunals, mandated by Chapter VII of the UN Charter, is colossal – it is mandatory and theoretically all-encompassing – all states must obey Tribunals’ orders. But in fact, in reality, Tribunal depend entirely on the level of co-operation of states, it does not have its own law enforcement mechanisms. Unfortunately, States and entities, and not only in the Balkans, in fulfilling their obligations towards Tribunal primarily take into account their immediate interests, political agendas and their vision of truth. The lack of co-operation is often explained to us by difficult political situations, national security or sensitive political exigencies. Of course it is always difficult. There will never be a “good” time to execute warrants and arrest notorious public figures or provide sensitive documents implicating country’s involvement in the crimes. But the principles of rule of law cannot be applied with a delay, kind of “not-now”, “not-this” mechanism.
The human rights agenda and international justice have made tremendous progress since World War II, irreversibly impacting on policy makers. Establishment and successful functioning of the International Tribunals and the International Criminal Court are the proof of that progress. The Yugoslav Tribunal, despite certain political agendas, proved to be much more than just a fig-leaf for diplomatic efforts. The Tribunal now is a mature judicial institution with ever expanding jurisprudence. It acquired great authority in terms of developments in the Balkans. The condition of full co-operation with the ICTY by the former Yugoslav republics has become an unavoidable and unquestionable factor in terms of their Euro-Atlantic integration.
Individual criminal responsibility and deterrence are the cornerstones of the Tribunal. International criminal trials are seen as a remedy against impunity. The failure to punish the perpetrators, especially leaders, for the atrocities of the past served to signal to the future leaders that they would also enjoy impunity. Adolf Hitler’s remark from his speech to his commanders and generals in August 1939 is often sited in this regard: “Who after all is today speaking about destruction of the Armenians,” he exclaimed then. Mankind, fortunately, has moved forward since then and it is noteworthy that the contested issue of the genocide of Armenians is being now carefully addressed in Turkey. However, it is remarkable how much influence the past crimes of the 20th century, not properly prosecuted in the former Yugoslavia, had on the fighters of the 1990-s in the Balkans - they thought to be called to avenge their ancestors.
Completion strategy and achievements
I would like to give you a short outline of our achievements and completion strategy. First of all, it is well known that the UN Security Council obliged both ad hoc Tribunals to finish their work by the end of 2010. My Office has fulfilled the first bench mark of completion strategy – all planned priority investigations have been finalized in December 2004 and all the last indictments were confirmed by the Judges and issued in the first months this year. We are supposed to finalize remaining first instance trials by the end of 2008, having two more years for appeals after that.
This program is quite ambitious as the case-load of the ICTY clearly is too large to handle in the given time-frame. Therefore, a part of our strategy is a plan to hand over or transfer some of our cases back to the domestic jurisdictions in Bosnia and Herzegovina, Croatia and Serbia. My Office already filed motions in 12 cases, which in our view might be good candidates for transfer to relevant jurisdictions. Five of these motions (involving 10 accused) were granted and cases are being transferred or prepared for transfer. However, it is yet to be seen to what extent the local courts are prepared to handle our cases.
When it comes to the Tribunal’s achievements since 1993 -- 84 indictments have been issued (not counting amended indictments); 162 persons were indicted by the ICTY (including several, but not all, for contempt of court), some of the indictments were withdrawn for various reasons; 126 persons appeared before the Tribunal in different proceedings; 56 - received Trial Chamber elaborate judgements, 56 persons are in custody now (24 – on provisional release), 45 persons received final sentence. At present there are only 7 accused still at large – while two have been located and arrested in Argentina and Russia - both awaiting transfer procedure. Couple of years ago we had some 30 accused at large. We are doing everything possible to have all remaining fugitives located and transferred to Scheveningen, including first and foremost - Karadzic, Mladic and Gotovina.
The wealth of the ICTY accumulated evidence includes – judgments, rulings and motions, documents, exhibits, witness statements, videos, transcripts of the trials. Apart from the judicial record, which is found in the judgments and transcripts of the proceedings, the Office of the Prosecutor alone is in possession of 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 ICTY collection was used in trials so far. What remains to be done, is expected to be done together with and, thereafter, solely by the domestic courts. The Tribunal was never in position or expected to deal with all perpetrators and all crimes. It is not a secret that hundreds, even thousands perpetrators of serious war crimes are not even charged, and unfortunately, often seen by the victims in the streets or in official posts.
In terms of our strategy and co-operation with domestic courts the ICTY is engaged in a very extensive program of training, seminars and conferences for the local judges and prosecutors. Together with some international organizations and institutions, like the OSCE, we are pushing the countries in the region to enter into regional bilateral or tri-lateral agreements concerning judicial co-operation in regard to the war crimes. The goal is, for instance, to overcome an obstacle of non-extradition of nationals in all former Yugoslav states. Prosecutors of the countries concerned have already started direct co-operation in terms of evidence and witnesses, and even some criminal cases. Special courts for war crimes were established in Croatia and Serbia. On 9th March this year the War Crimes Chamber of the Court of Bosnia and Herzegovina was inaugurated, which is very positive development for us as the majority of crimes were committed in Bosnia and the majority of our cases for the transfer will be handed over to the Court in Sarajevo. It has produced its own first indictments and already received one case from the ICTY.
My message to the local prosecutors is always the same – victims must be at the core of the domestic war crimes prosecutions; local trials must be victims oriented/ victims-driven and not to be seen as a process for the sake of the process, not justice for the sake of justice. The local war crimes trials will face serious challenges – political interference, national bias, deeply embedded prejudices and unsettled grievances being among the most complex. Therefore, the local judges and prosecutors should always remember the words of Martin Luther King (1929-68): “Injustice anywhere is a threat to justice everywhere”. In the context of the former Yugoslavia local war crimes trials will have to be carefully monitored, watched, scrutinized by various victim groups, nationalists of all sorts, neighbouring states and the International community.
It is the first time since Nuremberg and Tokyo Tribunals that the authority to prosecute war criminals is being transferred from international to national jurisdictions. It would be wrong to think that success is guaranteed. We will have to see how the practice and experience of the ICTY are translated into trials at the national level. However, there is no other way around – in order for peace and reconciliation to take firm roots, the core challenges in this region must be addressed at the national levels. Rephrasing James Joyce’s words I would say that the region and its people shall finally “awake from the nightmare of history”. And there is no better way to do it, I trust, than through a proper legal process of establishing reliable facts and directing specific responsibility or guilt at the concrete individuals.
Tribunal’s system - Allow me to leave the Balkans for a moment and say couple of words about the Tribunal’s system. It might be useful to recall some of the important differences between the Military Tribunals of Nuremberg and Tokyo after the Second World War and the two "ad hoc" Tribunals for former Yugoslavia and Rwanda. Using the words of the famous French politician Georges Clemenceau (1841 - 1929) it may be argued that “Military justice is to justice what military music is to music”. But seriously speaking the difference is indeed substantial.
Post World War II Tribunals were military; they were multi-national rather than truly international, and composed of the four victorious Allies, as part of a political settlement. The ICTY and ICTR were created by authoritative decisions of the UN Security Council, approved by the General Assembly. The war was over when the Military Tribunals were created, while the war was still raging in the former Yugoslavia when ICTY was set up. In Nuremberg, most defendants were in custody and all German archives and infrastructure were at Tribunal’s disposal, while the ICTY is still looking for some of the most important accused (now 7 at large). The ICTY never had and still has no full access to the most important archives in Serbia and Montenegro.
Military Tribunal of Nuremberg had only very basic Rules of Procedure and Evidence - only 11 rules - and trials "in absentia" were permitted. In Nuremberg and Tokyo the death penalty was permitted and there was no right of Appeal. In the Yugoslav Tribunal the Rules of Procedure and Evidence counts now 159 rules, trials "in absentia" are not permitted, there is no death penalty and there is the Appeals Chamber. All-in-all two "ad hoc" Tribunals today reflect a huge evolution in criminal justice standards.
The ICTY Statute was prepared mostly by common law representatives and in great urgency. After adoption of a common law model of Statute, the drafters also adopted a largely adversarial form of proceedings in the first Rules of Procedure and Evidence (RPE). The rules were designed as a common law contest between two parties but rules of admissibility of evidence were more flexible in the ICTY than those in the common law systems – rules allow judges to order the producing of additional evidence supplemental to the evidence produced by the parties.
There is no uniform civil law system in Europe. But there are elements which are inherent to civil law system – state investigative bodies (like prosecutor, investigative judge, judicial police, or criminal police) – are vested with responsibility to investigate both incriminating and exonerating circumstance equally. And it is the court’s obligation to actively seek truth. These fundamental differences divide the ICTY from the civil law tradition.
After the first rules were adopted more elements of the civil law were introduced – like confirmation that witnesses before the court are to be considered as “witnesses of justice” or “witnesses of truth before the Tribunal”. Also the Prosecutor is now expected “to present not only inculpatory, but also exculpatory evidence” However, there is no obligation in the rules on the prosecution to investigate both circumstances equally. All in all, the Tribunal’s Rules were amended or changed 35 times, reflecting in many ways a growing convergence between two legal traditions.
Prolonged nature of trials and a large number of accused in custody awaiting trials – prompted changes and rethinking. A Group of the UN appointed Experts conducted a review of the effective operation and functioning of the Tribunals in 1999. Some 46 recommendations and conclusions were made and then mostly implemented, including in the Rules – all in order to speed up trials and introduce some civil law mechanisms, especially in regard to role of the Judges in court. Some suggestions were not accepted – like possibility of a trial in absentia was rejected due to the strong opposition of the Prosecutor.
Guilty pleas are allowed by the ICTY Rules. This institution is foreign to the civil law system, where the admission of guilt is simply part of the evidence to be considered. However, this possibility was used by the prosecution as much as possible – all in order to speed up proceedings and resolve some dead-locks. A lot of controversy surrounds guilty pleas, as they are not understood well in the region (traditionally civil law system), especially by the victims’ groups who cannot accept the plea-bargaining process and reductions of the sentences. The practice actually worked well and a number of guilty pleas being entered were encouraging, until in one case the sentencing of the accused who pleaded guilty went far beyond the requested sentence by the prosecution.
One of the most serious burdens on the prosecution and trademark feature of the ICTY - is the disclosure obligation. It includes - disclosure “as soon as practicable any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect credibility of Prosecution witness”. One can hardly find the equivalent of disclosure in civil law jurisdictions, where defence has access to the whole investigation’s dossier prior to trial.
No system is perfect, and international jurisdiction is no exception. There are shortcomings in both systems. However, the ICTY experience showed that it is possible for the international court to successfully and effectively prosecute serious crimes, violations of the International Humanitarian Law, using elements of both systems. It can be argued whether the sophisticated technical rules governing a common law contest between two adversaries are suitable for the international court and for the truth-seeking process before the professional judges. Even some common law judges in the ICTY agree that in the unique environment of this Tribunal the civil law model might have been better suited to its purpose and expediency.
Tribunal’s Law[1] - It is obviously impossible to cover in one speech, even an extensive one, all aspects of the Tribunal’s work, rules of procedure and law. Speaking about the Tribunal’s law it is unavoidable to mention that one of the prerequisites to trigger ICTY’s jurisdiction is to prove existence of an armed conflict. Only for the crime of genocide that is not necessary to prove. Crimes against humanity, as listed in the Statute, shall be prosecuted only when committed in armed conflict (of internal or international character). The ICC Statute is different - there is no requirement of an armed conflict.
There is vast jurisprudence on the issue of proving the existence and nature of armed conflict, the nexus between the crimes and armed conflict. “…For there to be a violation of International Humanitarian Law (IHL), there must be an armed conflict”, says the ruling in the Tadic case. Common article 3 to the Geneva Conventions of 1949 (dealing with “armed conflict not of international character”) and Article 4 of Additional Protocol II to the Conventions (dealing with international armed conflict) – are very important parts of the ICTY and ICTR jurisprudence. Many legal battles were fought by the prosecution in order to prove existence of something obvious to anybody - armed conflicts and especially international armed conflict.
Genocide[2] is exceptional, specific and gravest crime, which both ad hoc Tribunals dealt with extensively. Let me shortly go back in history. Being informed about “methodical, merciless butchery” perpetrated by invading German forces in Russia Sir Winston Churchill called the offence in August 1941 “a crime without a name”. In November 1943 Raphael Lemkin introduced his new word paralleling homicide, for the offence of exterminating human groups, and called it "genocide." Since the adoption of the Genocide Convention by the UN general Assembly in December 1948, two ad hoc international Tribunals were the first international courts to investigate and prosecute crime of genocide. And now “…Genocide Convention is undeniably considered part of customary international law”, as the Akayeshu judgment said.
According to some specific Tribunals’ rulings the crime of genocide involves: firstly, specific act(s) as listed in the Statute, secondly, that such an act(s) be committed against a national, ethical, racial, or religious group, specifically targeted as such, and thirdly, that the act(s) be committed with intent to destroy, in whole or in part, the targeted group.
One of the most difficult issues is to prove specific intent, known in the Roman-continental legal systems, as dolus specialis. “It is specific intent that distinguishes the crime of genocide from the ordinary crime of murder”, says one of the court rulings. “Mens rea (mental element) must be formed prior to the commission of the crime“ of genocide. According to the developed jurisprudence of the Tribunals “intention to destroy a group can encompass acts not leading only to death; for instance, sexual violence against the female members of the group and contributing to the destruction of the group” can constitute genocide.
The rulings of the Tribunals explained the “in whole or in part” aspect of the crime of genocide – it requires the “intention to destroy a considerable number of individuals of the group; while individuals must be targeted due to their membership of the group to satisfy definition” of genocide.
The jurisprudence of the Tribunals in regard to crime of genocide is very elaborate. The Judges of the Tribunals through their rulings researched in details different and numerous aspects of this crime. Among other things they established the following:
- the victim of the crime of genocide is the group itself; - the intention must be to destroy the group as such, and not merely some individuals because of their membership in a particular group (Prosecutor v. Jelisic); - the intention to destroy must target at least a substantial part of the group. (Prosecutor v. Jelisic); - “it is sufficient that the exterminatory intent only extends to a limited geographic zone… (size of a region or even a municipality)” (Prosecutor v. Jelisic);
- “…Forcible transfer could be an additional means by which to ensure the physical destruction”;
- “If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial…” (Prosecutor v. Krstic);
- “An individual may be held responsible for aiding and abetting genocide if it is shown that he assisted in the commission of the crime in the knowledge of the principal perpetrator’s specific intent” (Prosecutor v. Vidoje Blagojevic and Dragan Jokic); - “Aiding and abetting genocide is a separate mode of liability”(Prosecutor v. Milosevic, Decision on Motion for Judgement of Acquittal).
As you see from these few examples there are very significant advances made in terms of
development of the specific areas of the international humanitarian law and international criminal law. Certainly, it would be much better if there was no need in the world affairs to have to use these instruments of the coercive criminal law. But the post Second World War appeal – “Never again” – unfortunately did not work. Terrible crimes, including genocide, have occurred on the planet since then under the watchful eye of the community of nations. It would be wrong to say, though, that there was no progress. Just recently, within the complex reform process in the United Nations, specific measures were accepted by all nations in regard to the prevention of crime of genocide. The UN Security Council has already used once its power to refer a case of serious violations of international humanitarian law to the ICC.
Conclusions
Recourse to International Criminal Tribunals was a bold, unique and promising initiative of the community of nations. Indeed the denunciation of the personal criminal responsibility of civil, political, administrative and military leaders for horrendous violations of human rights in time of great social unrest (be it war or internal armed conflict), may contribute to the prevention of such conflicts in the future. It will, hopefully, contribute to the realisation that there is no cause, not nationalism, not even national self-defence, that justifies the massive torture, rape and slaughter of non-combatants, or the persecution based on race, ethnicity or religion. Interestingly, for instance, in Croatia a widespread feeling among war veterans is that a defender of the country cannot be responsible for war crimes (especially before international court!), whatever he does in the course of warfare. While among Serbs an overwhelming feeling is still that they were right to do anything in defending former Yugoslavia from dissolution and against secessionists.
There is a lesson, therefore, to be learned by the community of nations. Crimes committed in former Yugoslavia demean us all and demand action to ensure nothing similar is ever repeated in Europe or elsewhere. It is especially important for the Balkan region, volatile and known for the cycles of recurring violence. Fight against impunity is important now as ever before. The Russian writer and Nobel prize winner A. Solzhenitsyn wrote in his famous book “Gulag Archipelago”: “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”. Providing justice now – is securing peace in the future.
This year united Europe commemorated the 60th anniversary of the victory in the 2nd World War and liberation from fascism. The defeat of the Nazi regime in Germany was sealed by the Nuremberg Tribunal’s judicial decisions. That was the first remarkable example of international co-operation with a purpose of bringing to justice those responsible for terrible crimes against humanity.
The lessons of Nuremberg should have been remembered and the atrocities committed in the former Yugoslavia should have been prevented. As they were not prevented, the United Nations decided – by establishing the Tribunal - that they must be punished and clear judicial record be set through trials before international court. This judicial record from Nuremberg and The Hague will serve as reminder and remedy against any attempts of revision, denial of the crimes committed. If not most powerful, it is indeed one of the best preventive mechanisms against future conflicts.
This year, we commemorated the 10th anniversary of the tragedy in Srebrenica, now legally determined to be genocide. Bringing to justice Karadzic and Mladic, indicted for genocide in Srebrenica, must be a top priority on the world community’s agenda. There shall not be any political calculation about it. It is deeply disturbing and unacceptable that despite huge international presence and involvement on the ground these two men are still at large. In the words of the famous Nazi hunter Simon Wiesenthal: “The hunt must go on. Criminals must not ever be allowed to sleep quietly.”
Thank you.
[1]The ICTY has jurisdiction only over serious violations of international humanitarian law:
- Grave breaches of the 1949 Geneva Conventions (Art. 2)
- Violations of the laws and customs of war (Art. 3)
- Genocide (Art. 4)
- Crimes against humanity (Art. 5)
[2] 1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
3. The following acts shall be punishable:(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.
