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Transcript of speech by Judge Gabrielle Kirk McDonald, President of the ICTY on 5 April 1999
[Posted 7 January 2002]
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REMARKS AT THE UNITED STATES SUPREME COURT
WASHINGTON, D.C.
MONDAY, APRIL 5 1999

BY
HER EXCELLENCY JUDGE GABRIELLE KIRK McDONALD
PRESIDENT, INTERNATIONAL CRIMINAL TRIBUNAL
FOR THE FORMER YUGOSLAVIA

ON THE OCCASION OF RECEIVING THE
ABA CEELI LEADERSHIP AWARD

Justice O'Connor, Secretary Albright, distinguished guests and so many friends. I want to thank all of you and my children and former law clerks for coming here tonight. The meal and the camaraderie have been wonderful. And, I am deeply honoured to receive this award. It is a special privilege to be honoured at the Supreme Court - an institution I cherish. But what is important is that on a basic level we are all here because we believe that justice is guaranteed to all and is not a privilege of a select few.

In The Hague I am guided by the inspirational work of two Supreme Court Justices - Robert Jackson, the Chief Prosecutor at Nuremberg and Thurgood Marshall ­ whose life long work promoting equal rights, grounded in an unwavering belief in the rule of law, has been my guiding light throughout my career in the law. It is that inspiration which took me to his law school - Howard University and thereafter to work with the NAACP Legal Defense and Educational Fund which he directed. My work with the Tribunal, enforcing human rights is merely an extension of that experience. It is also an expression of my hope that one day Dr. Martin Luther Kingıs dream will come true - one day all people will be judged by the content of their character rather than the color of their skin. Although we are not quite there, my commitment to the rule of law remains unshaken. The International Criminal Tribunals for the former Yugoslavia and Rwanda are internationalizing this bedrock of democracy, and I am most fortunate to be a part of this development.

The rule of law as enshrined in this building, is a precious gift, one that many people in Rwanda, and the former Yugoslavia would give much to have. In countries ravaged by war and slaughter, their legal systems are struggling to reassert what we take for granted. Many of you here tonight are working tirelessly to help make this a reality.

In over twenty-five countries, the dedicated pro bono attorneys and local staff members of the CEELI program have been a source of strength and assistance in fostering the rule of law in fragile, transitional societies. Nowhere is this truer than in the former Yugoslavia, where CEELI has been at the forefront of international efforts to help the people of the region strengthen the rule of law after the wantonness of war. Through its work with judges' associations, bar associations, law schools and the judiciary, CEELI has played a critical role in the post-war recovery process. The dedicated work and commitment of Mark Ellis and his staff deserve great credit. I am proud to be honored by a group that has itself done so much for this cause.

I am also pleased to be here tonight as a guest of the Coalition for International Justice, which was founded in 1995 with assistance from CEELI and the Open Society Institute. The Coalition has been a great source of support to the Tribunal. CIJ jumped in early and has stayed involved ever since. From running a workshop to assist the defense counsel in the very first trial, through seminars for the judges, a campaign to encourage the arrest of those under indictment, assistance with the handling of war crimes cases to be tried in the Bosnian domestic courts, and now assistance with our outreach effort, the Coalition has always helped us make good on the charge we have been given to assist with the efforts to bring justice and reconciliation to these societies ripped apart by war. The Tribunal has been well served by the tremendous work of a number of lawyers who have come to the Tribunal through CIJ and CEELI to help us with these projects. Some of them are with us tonight (Alain Norman, Kathy Ward and Heather Ryan) and I would like to take this opportunity to thank them again for their fine work.

So what has the Tribunal actually accomplished and does it matter? When we first started just over five years ago, there was little more to build on than the fading memory of Nuremberg and a UN Security Council resolution. We were judges and lawyers drawn from all corners of the globe to rented space in an insurance company building in The Hague. We were there to establish an international criminal tribunal - one that would bring war crimes perpetrators to justice. A court that would establish an international precedent of individual accountability for war crimes, crimes against humanity and genocide. A big order for a group that didn't even have a courtroom. We had no infrastructure, no trial system, no rules of procedure and evidence and most importantly, no one in the dock awaiting trial. We were truly building a Tribunal from the ground up.

What we did have was a group of talented, committed people. Not to say that those first years weren't frustrating -- believe me they were. Justice Richard Goldstone who you honored two years ago could tell you only too well. Building a tribunal and its jurisprudence from scratch raises all sorts of challenges. Challenges I never had to think about when I worked in our centuries-old US legal system. But there was also only so much the Tribunal could do on its own. Without the co-operation of the states and entities in the former Yugoslavia and the international community as a whole, the Tribunal had no way of bringing even a single accused to trial.

Nevertheless, we persevered and did what we could to build the institution. We benefited from the strong support of concerned governments and dedicated individuals such as Secretary Albright. As the permanent representative to the United Nations, she had worked with unceasing resolve to establish the Tribunal. Indeed, we often refer to her as the "mother of the Tribunal". And I am proud of what we have accomplished. After those first years of struggling to simply establish the court, we have now really gotten on with the substance of our mandate.

Since July of 1997, our caseload has grown dramatically. Where before we had few detainees and many empty cells, we have now actually had to expand our detention facilities because we have more prisoners than cells. In the last year, we have also opened a new courtroom (we now have three), added more judges (we now have 14) and expanded the Prosecutor's office to some 300 staff members. We completed three trials (Tadic, Celebici,and Furundzija) ­ including the first case in which an international court has found an accused accountable for rape as a war crime. In another, we established important precedent about the accountability of leaders for the acts of their subordinates. A fourth trial has been recently concluded and is awaiting judgement (Aleksovski). We have tried Bosniaks, Croats and Serbs, but have tried them as individuals regardless of their ethnicity. They were found guilty on some charges and not guilty on others. In each trial the judges strived to maintain a respect for the accusedıs rights that leaves no room for credible doubt about the impartiality of our proceedings. This year, we will continue with the three ongoing trials (Kupreskic, Blaskic and Jelesic) and expect to have two more get underway (Kordic and Kunarac). Three cases from the Yugoslav Tribunal and another three from the Rwanda Tribunal are being considered by the Appeals Chamber along with nine interlocutory appeals. In all, seven accused have been tried; one has pleaded guilty and is serving his sentence and trials are ongoing for nine accused. Cases involving a dozen other persons in detention are in the pre-trial stage.

But so what? Is that enough? I don't think so. The ICTY was created to assist with efforts to bring peace, justice and reconciliation to the Balkans. As such, it cannot properly function in isolation. An essential component of its work is to develop its relations with its constituents -- and especially the people of the former Yugoslavia, who are, after all, supposed to be the direct beneficiaries of our work. For the Tribunal's efforts to have the desired effect of contributing to peace and justice, it must be known and understood by the people of the region. Given the environment in which it exists, it is essential that the Tribunal actively work to bring its message and the facts about its work to the people of the former Yugoslavia.

It's like the old question: "If a tree falls in the forest and no one is there to hear it, does it make a sound?" I would ask, "If the Tribunal holds fair trials, establishes a record of what took place during the conflict, sentences those who have been proven guilty and frees those when the proof is not there, but no one knows about that work, does the Tribunal provide justice?"

That is why we are now engaged in a serious campaign to reach out to the people of the former Yugoslavia -- to let them know what we have been and will be doing, to answer their questions and hear their concerns. Last October, with the help of CIJ and the CEELI offices throughout the former Yugoslavia and with funding from the United States Institute of Peace, we began our efforts. We brought together at the Tribunal a group of fourteen judges, prosecutors and defense attorneys from the former Yugoslavia for a three-day symposium. These dedicated lawyers and jurists came from a wide range of backgrounds and political beliefs -- some came already supportive of the Tribunal, but others were clearly sceptical at best.

But the best part was not the praise at the end of the meeting. It was what happened afterwards. Entirely on their own initiative, members of every delegation returned to their home communities and spread the word about their experiences at the Tribunal: some set up meetings with local bar associations, others spoke to law school classes and yet others gave interviews to the local press and TV.

In November I sent a mission to Bosnia and Herzegovina and The Republic of Croatia to discuss perceptions and mis-perceptions regarding the Tribunal. The mission met with over 100 individuals and built upon the relationships developed with participants at the symposium. We are now seeking funding from states and foundations to carry out this critical effort. I ask each of you who has an opportunity to put in a good word for us, for this will be a costly effort. I postponed a visit to the region planned for later this month to continue our outreach efforts because of events in Kosovo. But I shall make that visit -- because the bottom line is that the Tribunals are not about those of us who work at them. It's about the people of Rwanda and the former Yugoslavia. It's about helping them obtain a sense of justice and individual accountability. It's about helping them with their efforts to deal with what happened in a way that brings them some sense of dignity and some security -- in a way that helps them demonstrate that justice can be found at the end of trial rather than the end of a gun barrel or machete. Only in this way can we hope to end the cycle of impunity.

Unfortunately, it is a message that this world sorely needs to be repeated. "Never again" was the phrase that seemed to signal that with the Nazis, a line had been crossed that would never again be breached. But "ever again" more accurately reflects reality. It is often noted that this has been the bloodiest century in our history. Some 210 million people have been the victims of armed conflicts. And, what is even more shocking, is that more than 80 percent of those were civilians. Slaughter, torture and wanton destruction have become instruments, rather than consequences, of war.

The absolute detachment of the international community, especially the Western world, from the plight of Rwandans was, and remains, literally, incredible. It has been estimated that between 500 00 and 1 million or more persons were killed in a period of three months beginning in April of 1994. While in Rwanda I travelled to one of the many buildings where the genocide was carried out. The horrific skeletal remains that I saw are a nightmare that I will never forget. They are the undeniable evidence of the depravity that engulfed Rwanda. They are also the most poignant tribute to the dead, their suffering frozen in time for all to see. As I watched children wave to me as I departed in a helicopter, I asked myself, and I ask you now: "How can we explain that humanity has sunk to such depths?". "How can the survivors go on?". But, in spite of apologies and contrition for such detachment, the lessons still do not appear to have been learned. In that continent, groups are still embroiled in conflicts where atrocities committed against civilians are commonplace.

In Europe too, amnesia still predominates. After Dayton there were again proclamations of "never again." Yet three years later the horror is repeating itself in Kosovo. According to numerous sources, the tactics and even some of the people involved are frighteningly familiar. It has been reported that 115,000 refugees fled Kosovo last week and the numbers are increasing. The atrocities continue and the perpetrators go free while victims of all ethnic groups cower in fear wondering if they will be next.

If justice and true peace are our goals, this should not be tolerated. For if it is, the atrocities will only continue to needlessly claim more victims and it will send a message to would-be perpetrators that the world does not care. Every time we fail to act, or turn a blind eye, (overtly and covertly) we send a message that human dignity is not a national interest. This cannot be right.

The ICTR and the ICTY have done tremendous work to resuscitate the power of international humanitarian law. We work to address egregious acts in Rwanda and the former Yugoslavia. Fifty years after the signing of the Genocide Convention we are finally striving to enforce it. And we have indeed made good progress. But there is so, so much more to be done. If we do not throw our full weight and best efforts behind there tribunals, what message does that send to the people of Kosovo; to the rebels in Sierra Leone who proudly announce that they are lopping off the arms and legs of children just to make a statement? And what message does it send to all the victims and their families?

As Secretary [of State] Albright so eloquently said:

"The Tribunal represents choice not only for Bosnia and for Rwanda, but for the world. We can accept atrocities as inevitable, or we can strive for a higher standard. We can presume to forget what only God and the victims have standing to forgive, or we can heed the most searing lesson of this century, which is that evil -- when unopposed -- will spawn more evil."

We can no longer shield our eyes and our lives from events in other lands. For what effects them truly does affect us -- through refugees, through costly and sometimes dangerous military operations, through the horrible precedent our inaction sets and through the damage that each atrocity does to our humanity.

I know some people find it hard to understand why we should spend our limited time and resources on atrocities committed half a world away when we have so many problems here at home. "What's that got to do with us?" folks will say. "It's their problem not ours." But they are wrong. It is the same hate and the same intolerance that can lead to such heinous acts anywhere.

Let me give you just one example.

In The Hague our court recently listened to a man who has described himself as the Serb Adolf Hitler. He pleaded guilty to charges that while working in a detention camp, he, among other things, conducted multiple killings and forced brothers to perform sexual acts on each other.

At almost the same time in Jasper, in my home state of Texas, another court heard how John King, a man with Nazi SS tattoos, chained another man to the back of a pickup and dragged him down a road for three miles until his body was literally ripped apart, worn away bit by bit and then beheaded by a concrete culvert. Why? -- Simply because of the color of his skin. Different countries, different continents, but frighteningly similar. Clearly, and unfortunately, they are related on a fundamental level. The root cause: hate spawned by intolerance is the same. The crimes it inspires must be treated with equal severity wherever they occur and regardless of who commits them.

If we are truly committed to justice and the rule of law, we must continue to work for their realization for everyone, everywhere. Hate is hate is hate. And crime is crime wherever it occurs.

I am reminded of the clarion words of Dr. Martin Luther King Jr., in his "Letter from a Birmingham Jail"; he wrote:

"I am cognizant of the inter-relatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly."

Nuremberg was not enough. Statements of disgust are not enough. It is said that in a note to one of his alleged co-conspirators John King wrote: "Seriously though bro, regardless SsicC of the outcome of this, we have made history and shall die proudly remembered if need beŠ" With each trial whether in Texas or The Hague or Arusha, Bosnia or Rwanda we must make clear that John King got it wrong. That there is no pride to be gained in committing such acts and that the lesson will be not that such acts are heroic models for others to follow; instead they are despicable deviations that society will not tolerate.

We've got a lot of work to do and we better get down to it. We have made good progress but this is no time to be complacent. I once again give thanks to all of you who have done so much to support this effort, but I also call on you to forge ahead and remain steadfast in your commitment and support of the Tribunal without reserve.

Thank you and good night

Originally posted at:
http://www.pict-pcti.org/news/archive/April/ICTY.04.05.html

***

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