PRESS CONFERENCE BY PROSECUTOR OF INTERNATIONAL TRIBUNALS FOR FORMER YUGOSLAVIA AND RWANDA

Press Briefing

PRESS CONFERENCE BY PROSECUTOR OF INTERNATIONAL TRIBUNALS FOR FORMER YUGOSLAVIA AND RWANDA

Louise Arbour, Prosecutor of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, told correspondents at a Headquarters press conference this afternoon that the contrast was becoming more and more dramatic between the remarkable willingness to endorse and support the work of the Tribunals on the African continent, with the tolerated non-compliance in the case of the States of the former Yugoslavia.

Justice Arbour said that she had spent most of the month of February in Rwanda and the United Republic of Tanzania. Upon her return, she had very useful meetings with several ambassadors, the African Group and the Non-Aligned Group, in which she stressed the growing and more acute contrast between the level of state cooperation the two Tribunals had been experiencing. For example, of the 36 accused by the Rwanda Tribunal, 34 had been apprehended, arrested, detained and transferred to Arusha in, and by, African States. That was in dramatic contrast with the lack of cooperation that the Tribunal for the former Yugoslavia was experiencing in the region, particularly and more dramatically on the issue of arrests. In the case of the Rwanda Tribunal, there had been three recent arrests while she was there -- two in Kenya and one in South Africa.

That was in contrast with both the Republika Srpska and the Federal Republic of Yugoslavia, where all existing public indictments accompanied by arrest warrants had remained outstanding, she said. There was also the non- compliance of the Federal Republic of Yugoslavia with respect to the need of her Office to pursue investigations in Kosovo. On that issue, an obvious case of non-compliance, she was pursuing two initiatives. One was the peace agreement negotiations and the other was the commitment to always pursue all available legal avenues. In that context, she had initiated court proceedings which would allow the putting to rest of Belgrade's contention that the Office of the Prosecutor had not been given access to Kosovo because it had no jurisdiction, since there was no armed conflict in Kosovo, as the term was understood in international law.

That was not a matter of political debate, but a legal issue -- as to whether there was in international law, an armed conflict which triggered the jurisdiction of the Yugoslav Tribunal, she said. It had been her contention for a long time that there had been sufficient evidence to trigger the obligation of the Prosecutor to investigate further. That proposition had now been put in a legal context before the Tribunal, and she hoped that the issue would be resolved in the form in which it belonged -- in a courtroom or in the context of judicial proceedings.

The Federal Republic of Yugoslavia's continued non-compliance emphasized, more than ever, the need for international criminal justice to form an appropriate partnership with peacekeeping operations, she said. It was clear that, absent the support that her Office had managed to obtain from the multinational Stabilization Force (SFOR) in Bosnia and Herzegovina, it would have been, if not defeated, certainly slowed down in its operations to an unacceptable level. The level of cooperation enjoyed from SFOR had demonstrated that it was politically and operationally feasible for international military peacekeepers to assist the Prosecutor's Office. In some cases, that would be the only realistic alternative in the face of defiance by States who were not complying with their obligations.

In that context, she said that she would be looking at the next set of discussions, the post-Rambouillet efforts, to bring a peace agreement to Kosovo. She would press hard for adequate language in the military annex, with respect to the assistance that the Office of the Prosecutor, and the Tribunal in general, would enjoy in the event of international troops being present in Kosovo. Her most immediate preoccupation was to ensure that there was an adequate partnership in the enforcement of international humanitarian law from peacekeepers, peacemakers, and peace-builders. She would be looking at the post-Rambouillet talks for language that was explicit and robust when it came to assistance to the Tribunal.

Asked whether she would want the Rambouillet agreement to state clearly her Office's jurisdiction in Kosovo, Justice Arbour replied that that was of less concern to her than the military annex. Her Office's jurisdiction in Kosovo was not conditional upon anyone's agreement, but had originated in the Security Council resolution which had created the Tribunal under Chapter VII. That bound the prospective parties to the Kosovo agreement without their explicit acknowledgement. In a sense, if there was nothing in that agreement dealing with the Tribunal, it would leave them in exactly the same position they were in now, which was with full entitlement to investigate. She would welcome the undertaking of the parties to comply with their obligations. She did not think that their consent was necessary to trigger those obligations.

However, she would certainly want an agreement whereby both parties would actually undertake to facilitate the work of the Tribunal, that would be a useful component of the agreement, she continued. The text she had seen, which had not been contentious, had contained language that was consistent with complying with all Tribunal's orders, responding to all requests for assistance, and otherwise cooperating with the Tribunal. Essentially, if there was nothing there, that could not in any way diminish the legality of her Office's efforts to investigate. That stemmed from the Council, and it was only in that form that there could be an increase or curtailment of the Tribunal's role.

It was very different in the military annex, she went on, because then it triggered the work of a third party -- the military operation. It was

Arbour Press Conference - 3 - 5 March 1999

there that she wanted to see language that was at least at the level of that contained in the Dayton Agreement. However, several years after Dayton, and on the basis of the experiences gained in Bosnia, she wanted to see something more ambitious and explicit, so as to prevent the kind of ambiguities that in the Dayton Agreement had been an impediment early on, for instance, to the apprehension of indictees. The critical operative document was the military annex, if there was to be one, rather than the language in the main document.

Responding to a question pertaining to any legal assistance provided by the Rwanda Tribunal for appeal cases, she said that the management of defence counsel -- their assignment, selection and remuneration -- was not under the authority of the Prosecutor, for good reasons, she added. The Prosecutor was an opponent to the defence. So the whole issue belonged to the Registry, ultimately under the supervision of the Court, of the President of the Tribunal or the Chambers. The Prosecutor had an interest in a full and fair defence and, as a litigant, had an interest in ensuring that any conviction obtained be unimpeachable and, therefore, not attacked on appeal.

To that extent, she had an interest in ensuring that there was no flaw in the process that might lead to a reversal of a conviction on appeal and the necessity of holding a new trial, she added. Her sole professional interest in that issue was in that context, and she hoped that the matter would be resolved either in court, through a judicial challenge or administratively, in a manner consistent with what she had just stated.

A correspondent asked whether she might have been able to obtain evidence in a timely fashion if the Council had been more emphatic back in January about her denial of access to Kosovo to investigate the massacre. Justice Arbour replied that she had been requesting access since November, prior to which she had discrete and modest forms of access, and investigators on the ground. She had been denied the issuance of visas since November. There was no question that even in respect of investigations that went back to events of last spring or early fall, the sooner witnesses could be accessed and so on, the better.

Having said that, it was clear that criminal justice internationally was not likely to have the luxury of immediate intervention the way the criminal justice system was expected to work domestically, she said. The chances either for the Tribunals, or an eventual permanent court -- which would have a more global jurisdiction -- to access a crime scene and preserve it before it was contaminated were very small. The expertise of dealing with evidence in a less timely fashion had to be developed. Sometimes, it yielded very useful information, including evidence of tampering, which, in itself, told a story. On the one hand, it was not necessarily paralysing for the Tribunal's operations not to be there right from the beginning. However, there was no question that the party which carried the burden of proof beyond a reasonable doubt had everything to gain in getting the best information at the earliest opportunity. Thus, the lack of action by those with the capacity to assist was very taxing for the Tribunal's efforts.

Arbour Press Conference - 4 - 5 March 1999

In response to a question on whether Brcko's new status had an impact on the Tribunal's work, she said that she could not see any concrete ways in which that would have an impact or not. It was a question of freedom of access for the investigators, and she could not say now whether there had been any specific difficulties in the region.

Asked whether she thought a criminal tribunal was the proper vehicle to bring to justice those responsible for crimes in Cambodia, she said that the question of whether it was the proper vehicle begged the question of compared to what alternative. The idea that something be done was one she endorsed. The permanent International Criminal Court would have a prospective jurisdiction, but it still left open the question of whether, at the turn of the century, there were still matters that belonged to the type of work that the two ad hoc Tribunals were doing. The issue of whether it should be done through that particular mechanism as opposed to national initiatives, or as opposed to truth commissions, was to have been examined by the soon-to-be- released report on Cambodia. There was a lot to be said for an international forum, properly resourced, experienced and mandated to take on such an important task.

She added that there were environments in which a truth commission was preferable to an attempt at a more authoritarian form of intervention. In the past, she had expressed severe reservation about the overlap of the criminal process in a truth commission. For example, in Bosnia a truth commission would be premature while the Tribunal's work still needed to be supported, and seen through to its painful completion. She would be very concerned about providing those who had no intention of cooperating with a plausible alternative for avoiding their obligations. In the face of the magnitude of the crimes that had been committed in Cambodia, and the allegations of personal criminal liability at very high levels, there was a lot to be said for continuing what had been launched by the two ad hoc Tribunals, which was personal criminal sanctions.

* *** *