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PRESS BRIEFING BY OUTGOING PRESIDENT OF INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

Department of Public Information . News and Media Division . New York

8 November 1999

Gabrielle Kirk McDonald, outgoing President of the International Criminal Tribunal for the former Yugoslavia, held a press briefing at Headquarters this afternoon. She noted that, in her statement to the General Assembly this morning, she had said that internal and external challenges must be addressed if the Tribunal was to succeed.

The Tribunal had control over internal challenges which related to developing an effective, fully functioning international criminal judicial institution, the first of its kind. One internal challenge was the length of the proceedings. She had previously said that trials should not proceed at lightning speed, but they should be completed expeditiously.

External challenges, over which the Tribunal did not have control, included the lack of cooperation by the Federal Republic of Yugoslavia, most notably Serbia. That was non-compliance which had reached the level of absolute obstructionism. She had complained to the Security Council on numerous occasions about a number of issues, most importantly that Serbia does not recognize the jurisdiction of the Tribunal. It had stated that it would not transfer nationals of the Federal Republic of Yugoslavia to the Tribunal. Serbian officials had even barred the Prosecutor from entering the country to conduct investigations, pursuant to a Council resolution.

She had also brought up her concerns about which had taken the position that "Operation Flash" and "Operation Storm" did not fall within the jurisdiction of the Tribunal. It was not up to the State, however, to make that judgement. She had met with Croatian representatives who proposed a rule change that would allow them to participate in the process. It had been widely reported that a number of the persons who had been indicted were in the Republic of Srpska which had also refused to transfer them to the Tribunal.

She said that the past six years had been the most exciting and rewarding time of her legal career. The international community had felt that an international criminal court could not be established, but she and her colleagues had accomplished just that. Without a doubt, they had enhanced significantly the movement to establish a permanent international criminal court. Although she was leaving the Tribunal, she would retain her commitment to the institution.

When she had been elected President of the Tribunal, she said, one of her priorities had been to spread the good word about the Tribunal to the people of the former Yugoslavia who were inundated with misinformation. An outreach programme had been established to get truth to them. A coordinator had been hired, but the programme was not yet fully funded. She encouraged correspondents with contacts with generous States or organizations to persuade them to make contributions to the outreach programme.

What were the dangers of the obstructionism tactic spreading to other areas where similar tribunals would be set up? a correspondent asked. If States were allowed to thumb their noses at the Tribunals and disregard their obligations, it could have a detrimental effect, she said. It could have a snowball effect.

A correspondent said the Tribunal had been criticized for not having enough trials. She asked for comment on the report that the International Criminal Tribunal for Rwanda (ICTR) had had more trials than the International Criminal Tribunal for Yugoslavia (ICTY).

Judge McDonald said it was counter-productive to compare the two Tribunals. They were not in competition. The Appeals Chamber for the ICTY was the same as that for the ICTR. When the judges sat at the Appeals Chamber, they were the Rwanda Tribunal. She was a member of both and she did not want to use her right hand to criticize her left hand. The ICTY had tried 10 persons. A smaller number had been tried by the ICTR. There were also a number of ongoing appeals at the ICTY. Both Tribunals were working in the same direction, but they had different concerns.

Continuing, she said the ICTR generally had more cooperation regarding arrests of people who had been indicted. That had been lacking in the former Yugoslavia. Until the Stabilization Force (SFOR) had begun making arrests, the Tribunal had been in difficult shape. It was hard to conduct trials when there was no indictee in custody. In addition, for over nine months, the ICTY had not had a prosecutor, and the prosecutor is the one who initiates the indictments. In response to a question, she said her term would be up at midnight on 16 November. She would leave The Hague on 18 November and was looking forward to her return to New York.

What would it take to get Mladic and Karadzic handed over? a correspondent asked. She explained that SFOR had different sectors. Pale was controlled by the French. As for what it would take -– it would take action, she said. More than six indictees had been arrested; were Mr. Karadzic and Mladic to be given special treatment.

A correspondent said that in her speech to the Assembly the Judge had been critical of the Security Council. Judge McDonald interrupted to say that she had been honest, straight-forward and stated the facts. She had not meant to be critical.

What would she like to see the Council do and what was her frank assessment of why they had not done more? the correspondent continued. Replying, she said that in 1995 arrest warrants had been issued to the Federal Republic of Yugoslavia for the arrest of the “Bukovar Three”, three individuals indicted by the Tribunal. They still had not been turned over. Instead, the Belgrade authorities had told the Tribunal to send the relevant file to them and they would conduct an investigation. Clearly, the Tribunal had primacy. The Security Council, which needed to take action, had done nothing and had not responded to the report of non-compliance.

As to what they could do, she said the Council knew best what it could do. There was a whole range of sanctions that could be imposed. First, however, they needed the political will to accept nothing short of compliance. She had not meant to be critical. The Council had established the Tribunal and was its parent. Parents had responsibilities. They could not just give birth to a child and leave the child to fend for itself. The child needed support and guidance. The Tribunal, which did not have enforcement mechanisms, looked to the Council.

A correspondent said the Judge seemed to be particularly pointing the finger at the French who controlled the areas in Pale and Republica Srpska. There had always been a reluctance on the part of IFOR and SFOR to go after alleged criminals because of the risks and other political issues. That seemed to mirror the problems in the Council where political divisions were probably responsible for the lack of action. How did one address those political problems?

"I'm not a political person. I am a judge and I am President of the Tribunal", she replied. Furthermore, she was not a diplomat. She had reminded the Council of its obligation. When one of the representatives had said it was time to do something more strong or effective, she had quoted Martin Luther King -- “How long? Too long." It had been four years since the arrest warrants for the Bukovar Three had been issued. She had addressed the Council twice, but she had no advice on how to deal with a political body. There was always give and take, but "you don't give and take about justice or the duty to meet your international obligation", she said.

Was there a greater willingness or reluctance on the part of KFOR to play a more aggressive role in capturing some of the indictees? Did it follow national lines? Were the Dutch more aggressive than the French, or the British more aggressive than the Americans in capturing some of the individuals?

She said she did not have enough information to answer that question. She had not meant to criticize the French. It was simply that Karadzic was reported to be in Pale in the French sector. She expected to see stronger action on the part of KFOR than there had been with IFOR. She reminded correspondents of newspaper photos showing IFOR having coffee at one table and indictees sitting at the next table. That had not happened with SFOR and KFOR.

What was the attitude of the United States? a correspondent asked. It appeared that the United States, particularly the Pentagon, was reluctant to become involved in the Criminal Court.

She said she was not an employee of the United States and not privy to its decision-making process. At the Rome meeting for the permanent international criminal court, States had made decisions based on their individual State interests. The United States had never asked her opinion nor had she volunteered. In her opinion, however, all States should sign the Statute, even though it was not as strong as she would like it to be. A permanent court would be a deterrent to conflicts, rather than being established after the conflicts had begun.

Asked if she had requested the United States to play a more aggressive role in terms of enforcement, she said she had dealt with a number of United States officials and asked for support for sentencing agreements. Explaining that the Tribunal needed to send convictees to States’ penal institutions, she said the Tribunal had enforcement agreements with five States, of which the United States was not one. But that was something that might come to fruition, she said.

The United States had been supportive financially and in other ways, she continued. Without the United States, and Madeleine Albright in particular, there might not have been a Tribunal. She could not say, however, whether the prosecutor was satisfied with what the United States had done in the area of providing documents.

Would the projected permanent international criminal court have an easier time getting compliance from States? she was asked.

She replied that one way the Tribunal acquired jurisdiction was through Security Council referral. The question then was if the referral would be supported by all of the Chapter VII obligations. If that were the case, the Council would be acting like an ad hoc tribunal. If States signed on to the Statute, one would expect them to cooperate, but that would probably depend on who was indicted.

A correspondent asked if the fact that the United States had not signed the Statute had weakened the Court.

Judge McDonald said the United States, the most powerful country in the world, had not signed on, but had publicly stated that it would not stand in the way of the Statute. Still, when a major Power did not sign on, it had to affect the agreement. There was the same issue with the treaty on landmines. Would that not be effective because the United States had not signed on? On the other hand, there was a saying, "One monkey doesn't stop the show".

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