Challenges confronting international justice

US Department of State Dispatch, Jan-Feb, 1998

Address by the U.S. Ambassador at Large for War Crimes Issues at the New England School of Law, Boston, Massachusetts.

I am very pleased to address such a distinguished audience this evening at the New England School of Law and, in particular, to have the pleasure of Professor Michael Scharf's company. Professor Scharf is a leading scholar on international humanitarian law and the institutions being forged to prosecute war criminals. His new book, Balkan justice, is a testament to that scholarship. New England School of Law can be very proud of his contributions to both theory and practice in a field that is, unfortunately, growing.

The challenges confronting international justice today are daunting. The absence of justice is too often the norm rather than the exception in lands where armed conflicts and atrocities proliferate. Combatants are as likely to know as much about the laws of war as they do about quantum mechanics. The typical victims are women and children--in the thousands--raped and macheted for their mere existence. The severity of mass killings in our own time, on the eve of the millennium, reflects how little we know of ourselves, of our neighbors, and of our future. Neither our faith in the impressive march of technology nor our other aspirations for the next century can overshadow the grotesque reality of the massacres that characterize civilization, or the lack thereof, in today's troubled world.

National systems of justice are the frontline defense, but they have proven problematic. In the ideal world, every war crime, every crime against humanity, and every act of genocide would be prosecuted either in the territory where it was committed or by the state of nationality of the defendant. Yet there are significant cases in which no one is prosecuted by responsible domestic authorities.

In recent years, much effort has been expended to establish international criminal prosecutions in two regions where domestic efforts have been lacking. The [UN] Security Council responded to the challenges of accountability in the former Yugoslavia and Rwanda by establishing ad hoc international criminal tribunals. Other nations of the world could easily be candidates for similar ad hoc tribunals. "Tribunal fatigue" in the Security Council explains, at least in part, why ad hoc tribunals have not become the universal mechanism for accountability.

But we should pause for a moment and note just how far the tribunals for the former Yugoslavia and for Rwanda have come. We are in the fifth year of the Yugoslav War Crimes Tribunal. From the beginning of the Clinton Administration in 1993, we have viewed the pursuit of justice in that region as reinforcing the pursuit of peace, for without sufficient accountability of individual criminals, there remains the collective guilt of ethnic groups fueling continued inter-ethnic conflict for generations.

You do not hear many people talking about the Yugoslav Tribunal as a purely symbolic exercise anymore. While the tribunal has experienced great difficulties in fulfilling the mandate entrusted to it by the Security Council, those difficulties have neither defeated it nor dissuaded those governments that are its pillars of support. Let me share some facts with you.

As of mid-January 1998, 79 individuals have been publicly indicted by the tribunal--57 are ethnic Serb, 19 are ethnic Croat, and three are ethnic Bosniak. Three indictees have died, meaning that we know of 76 living indictees--54 remain at large, and 19 are in custody in The Hague. The indictments against three ethnic Croats were withdrawn last month, and they were released from custody. Of those indictees at large, 52 are ethnic Serbs and two are ethnic Croats. Of those indictees in custody now, only three are ethnic Serbs, 13 are ethnic Croats, and three are ethnic Bosniak.

The United States Government worked hard to facilitate the surrender on October 6th of 10 Bosnian Croat indictees. The surrender, including by indictee Dario Kordic, was a welcome step that would not have happened without the cooperation of the Government of Croatia. We continue to press Zagreb for further cooperative actions with the tribunal, particularly regarding the apprehension or surrender of Ivica Rajic and Zoran Marinic and the production of documents in the Blaskic trial.

As a consequence of the Bosnian Croat surrender, the United States entered into intensive consultations with the tribunal and with the Dutch Government in October to determine what is most critically needed to strengthen the tribunal's capabilities and ensure timely trials of those who are in custody. The answer was two-fold. First, the tribunal's full budget request for 1998 needed to be approved in New York by the General Assembly. This was a tough task for us, because it was hard to argue for an increase for the tribunals when the United States was so far behind in our own dues to the UN. When the repayment of dues was held hostage in Washington over an unrelated family planning issue, our ability to support the tribunals in New York was made that much more difficult. One lesson of the last few months is that we need to show progress on our UN dues if we are to advance the cause of the tribunals at the UN.