Address by

Ms Carla Del Ponte, Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda

to the Parliamentary Assembly of the Council of Europe, Strasbourg, 24 April 2002

President, Secretary General, Honourable Members,

I am very grateful to you for giving me the honour of this opportunity to address you today.

As is clear from the heartening acceleration in implementation of the Rome Statute of the International Criminal Court, the international community is now more aware than it has ever been of the pressing need to ensure that the law is complied with. And especially so in the context of armed conflicts, which expose civilian populations directly to the consequences of the collapse of social normality. An overwhelming awareness of human suffering in fact requires us unequivocally to affirm the supremacy of humanitarian law in all situations of conflict and tension, and to draw attention to the fact that those who commit serious violations will be required to account for their acts to an international court which specifically embodies the expression of a desire to allow the powerful to go unpunished no longer.

Each in its own particular context, the UN’s two ad hoc International Tribunals, designed to help to restore and maintain peace, point to decisive progress of the law in respect of the moral and political degeneration to which impunity gives rise.

The International Criminal Tribunal for the Former Yugoslavia has now reached a crucial point of its existence. As I speak, six trials are actually in progress at The Hague. They are all extremely complex and involve political and military leaders and persons who, when the acts of which they are accused were committed, were invested with very wide-ranging powers. The scale of the crimes with which the Tribunal is dealing presents a formidable challenge to the system of international criminal justice. In order that such trials should be exemplary, of course, but first and foremost equitable, it is necessary for a fair balance to be permanently maintained between the serene and equitable administration of justice and the interests of the victims, the witnesses and the accused, not forgetting the public interest.

As you know, we began a little over two months ago the trial which, in all probability, will remain the most complex of all those we have to deal with, namely the trial of former President Milosevic. It is hardly possible for me to say anything about a case which is sub judice, but I shall nevertheless point to the fact that this trial marks a historic phase in the development of international criminal law, in that it began when a head of state who was in office was charged.

What is more, this trial illustrates the power of international justice when it is able to take advantage of the political will of the international community to force leaders to account for their acts. And this political will is the logical, and I would even say necessary, consequence of states’ commitment to peace in regions which have been torn apart by war, such as former Yugoslavia. It is in fact clear to my eyes that justice is an essential component - although insufficient on its own - of any process of peace, stabilisation and reconciliation.

The remarkable haste with which states have been ratifying the Rome Statute, establishing the International Criminal Court, bears witness to a growing confidence in international justice. Although the Court is based on the principle of subsidiarity, it will offer a powerful incentive to start criminal prosecutions in the event of violations of humanitarian law, such as genocide, crimes against humanity and violations of the laws or customs of war. We can similarly hope that the institutional strengthening and increased visibility of international criminal justice will be able to increase its deterrent effect.

This new institution will not have retroactive jurisdiction. It will therefore be unable to prosecute the perpetrators of crimes committed in the 90s on the territory of former Yugoslavia. Nor will our Tribunal have the capacity to prosecute all the perpetrators of these crimes, for their numbers - estimated at several thousand - clearly surpass the limited scope of an ad hoc court. Although it is conducting a large number of trials simultaneously, thanks to the assignment of judges ad litem, the ICTY must in practice focus on the most serious cases involving top-level civilian and military officials. As a result, an infinite number of heinous crimes of extreme gravity will have to be investigated and their perpetrators prosecuted by the national courts of the states on the territory of which the perpetrators of these crimes are arrested, or by the courts of those states of former Yugoslavia where the crimes concerned were committed.

I hope that these prosecutions will be carried out without complacency, independently and energetically. For make no mistake, these thousands of lower-ranking suspects, in whom we cannot take a direct interest, represent a formidable obstacle to the process of normalisation and reconciliation. Many of them still hold official posts, in the very places where they committed their crimes a few years ago. Their large numbers of victims are very well aware of who they are, and their impunity poses a severe threat to the Dayton peace.

For the moment, it has to be said that not all the conditions needed for the holding of independent and equitable trials in Bosnia and Herzegovina, in particular, have yet been met. The relevant requirements are, of course, and must remain very strict - just think, for instance, of the difficulties involved in the protection of witnesses. Significant initiatives are nevertheless under development, relating to the preparation of judicial machinery and structures capable of taking on the responsibility of deciding cases which might be referred to them by the ICTY, or which they might themselves decide to deal with.

The creation of a judicial system capable of prosecuting perpetrators of war crimes is a delicate task, and one which will take a long time, for even at the very lowest level of the civilian or military hierarchy, such crimes are never free of political implications. This task is a considerable challenge which the international community must meet successfully. For while the justice system, particularly the international system, is frequently accused of being expensive, it has to be said that miscarriages of justice never fail to bring far more expensive consequences over the medium or longer term.

In the immediate future, the ICTY must diligently carry out its terms of reference so that, in due course, it can complete its task. In this context, 2008 is sometimes put forward as an indication of a possible date for the completion of our trials at first instance. I emphasise that this date is an indication, for, as you are aware, the speed at which we work depends entirely on states’ co-operation with the Tribunal.

In practice, in spite of the international terms of reference given to me and the wide-ranging powers I hold under the Statute, I am completely dependent on the goodwill of states in respect of the conduct of my investigations and the transfer to The Hague of the persons accused by the Tribunal.

You are not unaware that 32 accused persons remain at liberty today, most of them within sight of, and with the knowledge of, the authorities of Yugoslavia and the Republika Srpska. In the very best of cases, arrests one by one and a staggered transfer of those who are jointly accused and whose names appear on the same indictment imply that certain trials have to be conducted several times over, with the same witnesses being heard and the same evidence being presented, thus leading to a deplorable waste of our resources and our time.

I also come up against the obstruction of the civilian and military authorities in respect of the investigations which I am carrying out in Yugoslavia and in Republika Srpska. It is true that Yugoslavia recently adopted a law on co-operation with the ICTY, thereby removing the only obstacle that it was still referring to in support of its refusal to co-operate. But this law is incompatible with the international obligations of Yugoslavia, since it excludes the possibility of any transfer of a Yugoslav citizen accused after the law came into force. Now, as pointed out by the Security Council in Resolution 1207, of 17 November 1998, a State may not invoke provisions of its domestic law as justification for its failure to perform binding obligations under international law. In the immediate future, I can therefore only hope that all the persons already charged and present on the territory of Serbia and Montenegro will decide to turn themselves in or will speedily be arrested and transferred to The Hague, starting with Ratko Mladic.

There can be no time limit for the prosecution of serious violations of international humanitarian law. This message needs to be hammered home again and again, quite particularly to those of our accused who are on the run, and where applicable, to the authorities which are protecting them. In the same way as Nazi war criminals are still being prosecuted today, the suspects already charged by us, and those whom we shall be charging in the future in accordance with our terms of reference, will all, sooner or later, have to appear before their judges. And it is up to the international community, to states, to international organisations, and to you, ladies and gentlemen, to ensure that these crimes will not remain unpunished.

I should finally like to take this opportunity to express my deepest gratitude to you for your very valuable support for the efforts of the ICTY, as well as for the irreplaceable contribution made by this Assembly and by the Council of Europe to the furtherance and development of justice in our continent, and in the Balkans in particular.

Thank you for your attention.