War Crimes Denial, Failure to Cooperate with National Authorities Hampering Progress of Former Yugoslavia Tribunal, Security Council Told
A worrying denial of war crimes, glorification of convicted perpetrators and a lack of cooperation with some national authorities were among obstacles hampering the full discharge of the mandates of the International Criminal Tribunal for the former Yugoslavia and the International Residual Mechanism for Criminal Tribunals, senior Tribunal officials told the Security Council today.
Those and other challenges were highlighted alongside progress reports during briefings on recent developments in the Mechanism and efforts being made ahead of the closure of the Tribunal on 31 December 2017.
Serge Brammertz, Prosecutor of the Tribunal and the Mechanism, cited progress in both, but pointed to widespread denial of war crimes and praise for the perpetrators. Also concerning was a refusal to accept the fact that genocide had occurred in Rwanda in 1994 and in Srebrenica in 1995, as determined by the Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, respectively. With the closing of the Rwanda Tribunal and the pending closure of the former Yugoslavia Tribunal, addressing that matter was more important than ever. “To secure a peaceful future,” he said, “there must be a shared agreement on the recent past.”
On efforts to locate and arrest eight fugitives indicted by the Rwanda Tribunal, he stressed that the window of opportunity would not remain open forever. “If we do not demonstrate a track record of success over the coming years,” he said, “we will have to consider alternatives” such as fully transferring responsibility for the fugitives to national authorities.
Theodor Meron, President of the Mechanism, provided an overview of its continued progress (document S/2017/434), which included increasing its workload and building relationships with countries to explore new opportunities to achieve further gains regarding the situation of acquitted and released persons. Noting other developments, he said preparatory work had begun for the Office of Internal Oversight Services’ (OIOS) evaluation of the Mechanism.
However, he went on to say, obstacles existed. Substantive proceedings in the Ngirabatware case were at a standstill because of the ongoing detention by Turkish authorities of Judge Aydin Sefa Akay, he said, urging the Council to take the requisite steps to resolve that unprecedented situation. More broadly, a recent rise in suspicions of global and regional institutions reflected an apparent retreat of the shared vision of what could be achieved when the international community worked together. “We cannot allow a temporary tide to erode any of the vital progress that the United Nations and this Council have made over the last quarter century in strengthening the rule of law and ensuring greater accountability under and in accordance with international law,” he said.
Carmel Agius, President of the former Yugoslavia Tribunal, presented its penultimate completion strategy report (document S/2017/436), noting that activities were on track, despite some outstanding challenges. “No institution can restore what was lost in the Yugoslav wars or undo the terrible crimes committed,” he said. “The Tribunal has demonstrated, however, that when the international community has the will to cooperate and to stand for what is right, those responsible for the most egregious violations of international humanitarian law can be held to account.”
Certain obstacles to completing the Tribunal’s mandate required the Council’s urgent attention, he said. In a pending contempt case against Petar Jojić and Vjerica Radeta, Serbia had refused to execute arrest warrants issued in 2015. The Council had the capacity to tackle that matter, he said, stressing that the alleged interference with witnesses must not go unanswered. “Any unfinished business will remain a disturbing footnote in an otherwise successful, indeed ground-breaking, attempt to hold persons accountable for the most heinous crimes that can be imagined,” he concluded.
Čedomir Backović, Special Representative of the Government of Serbia, addressing the call to surrender three persons, said the charges against them were contempt of court, not war crimes. Serbia remained fully dedicated to cooperating with the Tribunal and had already shown its commitment to fight impunity, including by fully aligning its criminal laws with relevant standards. Moreover, Serbia had provided free access to important evidence, including documents, archives and witnesses. It had allowed 757 witnesses to testify freely and carried out all 11 requests for witness protection. While freedom of speech was among Serbia’s top priorities, single statements of some individuals or civil society organizations must never be interpreted as official positions of his Government. He warned against generalizations based on speculations and innuendo.
Davor Ivo Stier, Deputy Prime Minister and Minister for Foreign and European Affairs of Croatia, said that in creating the Tribunal, the Council had strictly confined it to the application of existing international humanitarian law and not in any way to creating precedent. Any attempt to go beyond those limits could seriously damage international criminal law. He warned against holding military and civilian officials with authority over forces liable for any crimes committed by those forces, as doing so would seriously jeopardize, if not disable, States from conducting any military operations and even peacekeeping missions.
Bosnia and Herzegovina’s representative, stressing that the fight against impunity remained an essential precondition for sustainable peace, provided an update on his country’s ongoing justice sector reform.
In the ensuing discussions, Council members voiced a range of concerns, with several calling on Serbia to comply with its obligations regarding the outstanding arrest warrants. Meanwhile, the Russian Federation’s representative rejected any attempt that placed blame for crime on peoples or Governments, saying that doing so created unjustified images of those parties. The Tribunal must operate on the core basis of law, which placed responsibility for crimes solely on individuals. The Mechanism’s work hinged on the Council’s review and must be careful to not overstep its mandate or take excursions outside its jurisdiction.
Many speakers, including those from France and Senegal, called for bolstered efforts to apprehend the eight fugitives indicted by the Rwanda Tribunal. Some called for a resolution to the ongoing detention by Turkish authorities of Judge Akay. Ethiopia’s representative pointed to reports of the early release of genocide convicts without thorough consultations with parties involved, saying such actions could have serious implications for the victims, particularly in light of Mr. Brammertz’s findings.
Also speaking were the representatives of Uruguay, Italy, Japan, United States, China, Egypt, Ukraine, Kazakhstan, Sweden, United Kingdom and Bolivia.
The meeting began at 10:05 a.m. and ended at 12:40 p.m.
Briefings
CARMEL AGIUS, President of the International Criminal Tribunal for the former Yugoslavia, presented its penultimate completion strategy report, saying that while activities were on track, obstacles required the Council’s urgent attention. “Any unfinished business will remain a disturbing footnote in an otherwise successful, indeed ground-breaking, attempt to hold persons accountable for the most heinous crimes that can be imagined,” he said. Highlighting achievements, he said the judicial workload had progressed towards finishing the final trial and appeal proceedings, Prosecutor v. Ratko Mladić and Prosecutor v. Jadranko Prlić et al., respectively.
Turning to serious challenges, he said that in a pending contempt case against Petar Jojić and Vjerica Radeta, Serbia had refused to cooperate with the Tribunal and execute arrest warrants issued in 2015. Having raised that matter repeatedly to the Council, he emphasized the gravity of the charges against the individuals. The Council had the capacity to tackle the issue and the alleged interference with witnesses must not go unanswered. Other challenges included struggles to retain staff.
Once closed, the Tribunal’s legacy would be shared by the Council, he said. Ongoing projects of establishing information centres within the region of the former Yugoslavia, as outlined in Security Council resolution 1966 (2010) would provide access to the Tribunal’s public records and play an invaluable role in continuing its legacy. “No institution can restore what was lost in the Yugoslav wars or undo the terrible crimes committed,” he said. “The Tribunal has demonstrated, however, that when the international community has the will to cooperate and to stand for what is right, those responsible for the most egregious violations of international humanitarian law can be held to account.”
THEODOR MERON, President of the International Residual Mechanism for Criminal Tribunals, briefed the Council on recent developments, saying that it would be entirely self-sufficient in assuming responsibility for the remaining functions of the International Criminal Tribunal for the Former Yugoslavia upon the latter’s closure in December 2017. The Mechanism’s continued progress in handling its judicial work was reflected by a steady increase of output, from 25 decisions issued in 2012 compared with 404 decisions and orders in 2016. Citing developments in several cases, he said judges had continued to work remotely and were available for hearings. Not limited to major cases, judicial work encompassed a range of requests, many from national authorities, from contempt allegations to motions seeking a review of judgment.
Highlighting achievements and concerns, he said substantive proceedings in the Ngirabatware case were at a standstill because of the ongoing detention by Turkish authorities of Judge Aydin Sefa Akay. The Council should take the necessary steps to resolve that unprecedented situation. Turning to important developments, he said States had answered the Council’s call to facilitate progress in the situation of acquitted and released persons and the Mechanism was seeing progress in building relationships with countries to explore new opportunities to achieve further gains. In addition, preparatory work had begun for the Office of Internal Oversight Services’ (OIOS) evaluation of the Mechanism.
Pointing to the recent rise in suspicions of global and regional institutions, he said there was an apparent retreat of the shared vision of what the international community could achieve when working together. “We cannot allow a temporary tide to erode any of the vital progress that the United Nations and this Council have made over the last quarter century in strengthening the rule of law and ensuring greater accountability under and in accordance with international law,” he said, emphasizing that now more than ever was the time to redouble efforts towards ever greater success.
SERGE BRAMMERTZ, Prosecutor of the International Criminal Tribunal for the former Yugoslavia and the International Residual Mechanism for Criminal Tribunals, provided an overview of recent activities, including the successful preparation of cases transferred from the former Yugoslavia Tribunal. Regarding current efforts to locate and arrest eight fugitives indicted by the International Criminal Tribunal for Rwanda, he said two new task forces were supporting tracking initiatives and his office was taking a more proactive approach, including pursuing new lines of investigations. However, the window of opportunity to locate fugitives would not remain open forever and funding was needed to bolster efforts. “If we do not demonstrate a track record of success over the coming years, we will have to consider alternatives”, he said, such as fully transferring responsibility for the fugitives to national authorities.
Turning to other developments, he said the Mechanism had continued assisting national judiciaries prosecuting war crimes, crimes against humanity and genocide in Rwanda and the former Yugoslavia by deepening cooperation with authorities and strengthening the exchange of information and evidence, among other activities. The Tribunal would also launch a translation of a publication on the prosecution of conflict-related sexual violence and it planned to prepare a comprehensive training programme for judiciaries in the former Yugoslavia.
Turning to a continued concern, he said there was widespread ongoing denial of crimes and refusal to accept facts established by both Tribunals, including the determination that genocide had occurred in Rwanda in 1994 and in Srebrenica in 1995. Current instances of glorifying convicted war criminals and the denial that crimes had been committed were cause for alarm. With the closing of the Rwanda Tribunal and the pending closure of the former Yugoslavia Tribunal, it was more important than ever to address that challenge. “To secure a peaceful future, there must be a shared agreement on the recent past,” he said.
Statements
ELBIO ROSSELLI (Uruguay) said the former Yugoslavia Tribunal had made relevant progress in its judicial work, thus remaining on time to complete its activities by the end of 2017. Its liquidation programme was well under way, he added, expressing concern about staff leaving to seek more long-term opportunities. He hoped that something could be done to retain the most skeleton staff needed for the Tribunal to complete its work. Turning to the Mechanism, he said much had been achieved, and agreed with the decision to search and prosecute the eight persons indicted by the Tribunal. The cooperation of States was crucial if the Tribunal and Mechanism were to fulfil their mandates, which enshrined the solemn duty to prosecute those that had committed the most atrocious crimes. It was up to the Council to ensure that those institutions were not undermined, given that they were the physical representation of international criminal justice. The core principles of those institutions, as well as their working methods, must be fully respected. “The Security Council cannot claim ignorance of the situation,” he continued, adding that any weakening of the institutions put the world on a slippery slope of repeating atrocious crimes.
SEBASTIANO CARDI (Italy) said that the international community had a collective responsibility to keep building on the legacy of the two ad hoc Tribunals, working with the Mechanism, as well as with other international criminal courts and tribunals. The Council had contributed to establish the age of accountability and it must continue to uphold those main principles. He stressed the primary responsibility of States in ensuring that justice for war crimes, crimes against humanity and genocide was achieved in accordance with international standards. Cooperation was an essential element in the functioning of international criminal tribunals. “These organs are giants without arms and legs,” he said, urging States to assist the Tribunals by lending them their enforcement powers. Noting that a lack of cooperation was still an issue of concern, he underscored that the fight against impunity was a common objective and would not finish with the closing of the ad hoc Tribunals. The Council must assume full ownership of the work done by those subsidiary bodies. Accountability must become part of the United Nations broader prevention strategy.
TAKESHI AKAHORI (Japan) said that in order for the former Yugoslavia Tribunal to function effectively and perform its mandated tasks, full cooperation from Member States was needed. Turning to the Mechanism, he expressed support for its efforts to provide a more detailed projected timeline for its cases, while recognizing that concrete dates were difficult to project at this early stage. Effective and efficient delivery of judgments must be balanced with due process. Arresting the eight remaining fugitives was a priority for the Mechanism, he continued, noting the Prosecutor’s suggestion on transferring those responsibilities to national authorities in the future if the situation did not improve. As for the Tribunal, he stressed the need for Member States’ full cooperation with the Mechanism to continue to deliver justice. He welcomed the cooperation of a number of States especially in the area of enforcement of sentences and noted the situation with regard to Judge Akay.
EVGENY T. ZAGAYNOV (Russian Federation) called on the Tribunal’s leadership to reduce its timetables as called for in relevant Council resolutions. He rejected any attempt that placed blame for crime on peoples or Governments as doing so created unjustified images of those parties. The Tribunal must operate on the core basis of law, which placed responsibility for crimes solely on individuals. The Russian Federation was “deeply disheartened” by the refusal of the Trial Chamber to release Ratko Mladić for treatment. Information about the significant deterioration of his health had been ignored and judges had refused to grant Mr. Mladić quality medical treatment. The Tribunal would now bear full responsibility for that decision and its outcome, he continued, reiterating his call for an investigation into the Tribunal’s medical unit. He added that the Mechanism’s work hinged on the Council’s review. The Mechanism must be careful to not overstep its mandate or take excursions outside its jurisdiction. The Russian Federation anticipated sound forecasts and strict compliance with international standards, he added.
MICHELE SISON (United States) underscored her Government’s commitment to the Tribunal’s work. While no one could ever undo the horror of war, bringing cases to their conclusion and bringing to justice those responsible for atrocious crimes did allow for chapters to close. It also demonstrated that no one could act with impunity. In addition, the judicial process was essential in countering those who engaged in genocide denial and attempted to rewrite history. She expressed concern over the region’s divisive speech, which she said harmed cooperation that was essential to promoting accountability. She commended the work of the Tribunal’s Prosecutor in collecting much-needed information and evidence and building up a critical database. The United States remained concerned that three arrest warrants of individuals charged in relation to witness intimidation had remained unexecuted in Serbia for more than two years. She called on the Government of Serbia to execute the arrests without delay and urged the Council to be unified in its message to that Government. A failure to fully comply with the Council’s resolutions would compromise international criminal justice. Regarding management and transition, she commended the work of both the Tribunal and Mechanism in downsizing offices and reducing costs. Noting the issue of staff attribution, she welcomed steps taken to retain core staff.
GORGUI CISS (Senegal) stressed the importance of legal responsibility and the new code of conduct for judges within the Mechanism. He highlighted with concern issues relating to staffing and cooperation. In addition, the issue of archives had not been fully resolved. He called on States, particularly those harbouring fugitives, to do everything in their power to bring criminals to justice. He welcomed cooperation efforts aimed at finding a conclusion to the situation of Judge Akay. Commending the Tribunals’ work, he pledged Senegal’s tireless support in upholding justice and furthering its response to war crimes and crimes against humanity. The Tribunals had made major contributions to international criminal justice. For its part, Senegal was housing eight prisoners indicted and found guilty by the Rwanda Tribunal.
LI YONGSHENG (China), noting many obstacles had been overcome in the Tribunal ahead of its pending closure, expressed hope that efforts could be redoubled to ensure timely completion of its mandate. Meanwhile, the Mechanism had adopted measures that met efficiency requirements and he expected its progress would include continuing to strictly implement Council resolutions. He hoped the Tribunal could maintain a close relationship with the Mechanism to ensure a smooth transfer of work.
IHAB MOUSTAFA AWAD MOUSTAFA (Egypt) said the Council must support the Tribunal to ensure the completion of its mandate, with Member States cooperating. In the OIOS review of working methods, it must recognize the role the Mechanism played and its mandate. Agreeing on a methodology for such reviews would have a positive bearing on the nature of outcomes and their implementation when the Council established similar mechanisms in the future. Turning to the detention of Judge Akay, he looked forward to a resolution of the matter that was in line with international law.
YURIY VITRENKO (Ukraine) said remaining challenges to closing the Tribunal must be addressed. Noting Serbia’s defiance of arrest warrants and orders, he called on that country to comply with its obligations. A strong message must be sent that no one could avoid accountability for serious violations of international humanitarian law. Urging all States to cooperate with the Tribunal and the Mechanism, he emphasized their important roles in maintaining international peace and the delivery of justice throughout the world.
ANNE GUEGUEN (France) said activities being carried out must be sustainable to ensure that the Mechanism fully fulfilled its mandate. Commending efforts the Tribunal had made to ensure its closure, she said its experience had demonstrated its pioneer role as a model for future such mechanisms. She urged all States to support efforts to locate and arrest the remaining fugitives involved with the Rwandan genocide. Turning to the Mechanism, France supported OIOS efforts and initiatives to build national judiciaries.
KANAT TUMYSH (Kazakhstan) said an effective solution must be found to existing challenges in the Tribunal. He underlined the importance for victims of the crimes in question to see that justice was served. The work of the Tribunal and Mechanism had given many significant examples of that and he hoped there would be a smooth transition of responsibilities upon the former’s closure in December.
MAHLET HAILU GUADEY (Ethiopia) said important contributions of the Mechanism included collaborating with national courts through activities such as sharing information, which would help to bring to justice perpetrators of serious crimes. Noting reports of the early release of genocide convicts without thorough consultations with the parties involved, she said those situations could have serious implications for the victims, particularly in light of Mr. Brammertz’s findings. Turning to the issue of Judge Akay, she hoped the issue would be resolved. In terms of trafficking in fugitives and lack of cooperation, she said the Tribunal’s successful completion depended on collective efforts to address those concerns.
IRINA SCHOULGIN NYONI (Sweden) underscored the role of international criminal tribunals in the fight against impunity. Their work had helped rebuild foundations and enable societies to move forward. Holding perpetrators to account, in international or national courts, was fundamental to national reconciliation. Hence, it was important that there were no outstanding cases at the time of the former Yugoslavia Tribunal’s closing. He urged Serbia to cooperate fully with the Tribunal and carry out the three arrest-and-surrender orders pending since January 2015. “Denying the reality of what happened in the past will only undermine prospects for peace in the future,” he stressed. Expressing concern about the widespread denial of crimes and facts established by the Tribunal in relation to its cases, he said an irreversible break with the past could only happen alongside truth. He looked forward to the Tribunal’s smooth transition to the Mechanism and commended the latter’s issuance of more than 150 decisions and orders in the reporting period.
HELEN MULVEIN (United Kingdom) said the Tribunal’s judicial work and the transfer of its residual functions to the Mechanism must remain on track to be completed by the end of the year. She also welcomed measures adopted to retain core staff. The United Kingdom remained concerned that the arrest warrants of three individuals had still not been executed, she continued, urging Serbia to comply with the Tribunal on the matter. Failure to do so undermined the rule of law. The Tribunal’s legacy must make a lasting contribution in the region. The legacy must send a clear and resounding message to those who committed crimes that they would not escape justice. The Mechanism must continue its expeditious and efficient treatment of residual matters. She expressed concern over the case of Judge Akay and said she was troubled by the Tribunal Prosecutor’s report stating that regional judicial cooperation was moving in the wrong direction. She also stressed the need to remove any barriers and adopt practical proposals.
SACHA SERGIO LLORENTTY SOLÍZ (Bolivia), Council President for June, spoke in his national capacity, saying the establishment of both Tribunals had helped restore the rule of law in the countries concerned. In order to ensure that the former Yugoslavia Tribunal could complete remaining cases by December 2017, the full support of Member States was needed. It was important that dedicated staff continue working during the drawdown of the Tribunal and that its closure be carried out in an appropriate manner. He welcomed the work of the Tribunal and the discussions with civil society and academia about its legacy. Legacy dialogue efforts must keep memories alive and ensure that atrocity crimes were never repeated. Bolivia would remain fully committed to the fight against impunity.
DAVOR IVO STIER, Deputy Prime Minister and Minister for Foreign and European Affairs of Croatia, said it was little wonder that 25 years ago Croatia was one of the States that supported the establishment of the Tribunal. Global TV audiences had witnessed how Croatian villages were levelled to the ground and their inhabitants massacred. After the carnage, the perpetrators wrote on the wall of an elementary school: “Welcome to a dead village”. Although he was not indicted for the events in that Croatian village, Ratko Mladić began his infamous warpath in surrounding towns in 1991. The Tribunal would soon enter history with a significant legacy: fighting impunity and giving a voice to the thousands of victims of horrific crimes.
In creating the Tribunal, the Council had strictly confined it to the application of existing international humanitarian law and not in any way to creating precedent, he continued. Any attempt to expand beyond those limits could seriously damage international criminal law. Military and civilian officials with authority over forces should not be held liable for crimes committed by those forces, he warned. Holding States and political leaders responsible for offences committed by others who may share their goals, regardless of whether those leaders shared intent to commit criminal offences, would seriously jeopardize, if not disable, States from conducting any military operations and even peacekeeping missions.
MILOŠ VUKAŠINOVIĆ (Bosnia and Herzegovina) said that his country’s cooperation had been steadfast as evidenced by statistics presented by the Tribunal. Bosnia and Herzegovina had remained committed to improving the efficiency of domestic war crime proceedings bearing in mind that only an independent judiciary would render justice in an impartial manner. To that end, his Government would continue to strengthen its national judicial system at all levels in order to bring forth justice. A 2014-2018 justice sector reform strategy remained crucial to improving rule of law and further consolidating the judicial system. That included measures to improve judicial independence and efficiency. He welcomed the support his country received from the European Union, the Organization for Security and Cooperation in Europe (OSCE) and the United Nations Development Programme (UNDP) for witness protection activities and support to victims.
The National War Crimes Strategy had played a crucial role in enhancing public trust in judicial institutions and in promoting reconciliation, he continued. Its implementation would continue to improve the consistency of judicial practices through the country. Despite numerous challenges, important results had been accomplished, including in the effectiveness in prosecuting war crimes cases. Consistent cooperation with the Prosecutor’s offices and relevant authorities in Bosnia and Herzegovina, Serbia and Croatia was crucial in investigating and prosecuting pending cases. The fight against impunity remained an essential precondition for sustainable peace. That would not end with 2017, he added. Prosecution of war crimes regardless of the national or religious origin of the perpetrators and victims was crucially important for peace in Bosnia and Herzegovina.
ČEDOMIR BACKOVIĆ, Special Representative of the Government of Serbia, said it was clear that his country had shown its commitment to fight impunity. Its criminal legislation was fully aligned with relevant standards and had enabled its cooperation with the former Yugoslavia Tribunal without exception. Serbia had handed over 45 defendants to the Tribunal out of the total of 46 defendants whose surrender had been demanded. One defendant had committed suicide. In addition, Serbia had provided free access to important evidence including documents, archives and witnesses. Serbia had also allowed 757 witnesses to testify freely and had carried out all 11 requests for witness protection. While freedom of speech was highly ranked on the list of Serbian priorities, single statements of some individuals or civil society organizations must never be interpreted as official positions of his Government. He warned against generalizations based on speculations and innuendo.
Noting that the prolonged procedure for election of the new Prosecutor had caused some delays in strategy implementation, he said his country was working to move the election procedure forward. A new prosecutorial strategy would be finalized and adopted in the next few months. The trial monitoring of war crimes proceedings would start again in September together with a special training for judges, public prosecutors and police officers in charge of investigating and prosecuting war crimes. Some 10 indictments of war crimes against 21 individuals had been confirmed in Serbia in 2016 and 2017. Serbia should not be negatively assessed because it respected its Constitution, laws and court decisions, all of which were in accordance with basic legal principles. Addressing the call to surrender three persons, he reiterated that Petar Jojić, Vjerca Radeta and Jovo Ostojić were accused of contempt of court, not war crimes. His Government remained fully committed to cooperating with the Tribunal and hoped that other Governments in the region were equally willing to work together towards reconciliation.