Reflections from the Hague
Gabrielle Kirk McDonald USHMM
GABRIELLE KIRK MCDONALD: When I first saw the title of the speech, “Reflections From The Hague,” I thought, well: it’s cold, it’s wet, very windy, very quiet. But then I figured that such esteemed individuals as you would expect a little bit more.
So it is a singular honor for me to be here today in this setting addressing this audience. A great many of you have inspired me over the past three decades. It is also, therefore, rather daunting.
In general the international community has had a tempestuous relationship with international law. It has had its ups -- the periodic codification of the universal norms that have together proclaimed individuals, rather than states, as the international community’s primary concern -- and it’s downs -- failing to follow through on those commitments. In The Hague, we are exposed to the sharp end of this dichotomy. Indeed, as an institution that is trying, literally, to enforce international law, we live with and struggle against it on a daily basis.
Today, therefore, I will discuss the role of the Tribunal in this battle of collective right over political might. Since its creation in 1993, we have been constantly reminded that it is one of the most important developments in international law. There is no question that it is. But for the Tribunal, and the principles on which it is founded, to triumph, we must ensure that it does not remain the sole preserve of academics, jurists, and the history books. It must succeed in the former Yugoslavia by giving some redress to the hundreds of thousands of victims and by showing that the rule of law takes precedence over the law of the jungle.
The French philosopher, Paul Ricoeur, wrote that the victims of the Holocaust were “delegates to our memory of all victims in history” (1). I would add that they are also martyrs. Their deaths led directly to the codification of the crime of genocide, developed over ages, but not legally recognized until this Century. This building, and others like it around the world, serve as a constant reminder of their sacrifice. It is also a wake-up call to our memory. As it is said, do not forget, for then it will happen again. But humankind’s collective memory is fading.
The terror of the Holocaust, and the reason why it the most shocking event in the history of humanity, is that it actually happened. A legally elected government calmly made the decision to exterminate whole classes of people. This was a policy, which coexisted with and was implemented as part of the government’s program for Germany. The full resources and processes of the State were used to turn a theory that was based on the objectification of individuals into an inconceivable reality. At the end, as the Allied powers liberated the camps, the rest of the world stared full in the face at what humanity had been able to do to itself. Over a twelve-year period, using first the law and then starvation and finally murder, the Nazis accomplished the literal destruction of people through the denial of their status as human beings.
“Never again” was the phrase that seemed to signal that, with the Nazis, a fine line had been crossed, that would never again be breached. A raft of treaties, trials and the founding of the United Nations lent weight to this aspiration. Yet it has become nothing more than a cliché. “Ever again” more accurately reflects the reality. This has been the bloodiest century in our history, with some 210 million people having been the victims of mass killings. And, what is even more shocking, is that more than 80% of those were civilians. Slaughter, torture, and wanton destruction have become instruments, rather than consequences, of war.
They were killed in every corner of the globe, in Vietnam, in Uganda, Nigeria, Argentina, Chile, El Salvador, Guatemala, Iraq, Iran, India, Cambodia, Burundi, Rwanda, and the Former Yugoslavia. In Bosnia and Herzegovina concentration camps and mass graves reappeared in Europe representing “an insult to humanity [and an…] unanswered challenge to the international community” (2). Then in Rwanda, only four and a half years ago, indeed, less than one year after this museum opened its doors to all of our consciences, around 800,000 people were butchered in 100 days. Philip Gourevitch has written: “neighbors hacked neighbors to death in their homes, and colleagues hacked colleagues to death in their workplaces. Doctors killed their patients, and school teachers killed their pupils…” (3). Fifty years after Nazism, killing was once again being carried out on an industrial scale, and the world again utterly failed to read the warning signs and failed to prevent it.
The absolute detachment of the international community, especially the Western world, from the plight of Rwandans was, and remains, literally, incredible. But, in spite of apologies and contrition for such detachment, the lessons still do not appear to have been learned. In the same region, as conflict erupted first in Zaire and then later resurfaced in the Democratic Republic of Congo, international human rights groups have reported another 200,000 people, many associated with the genocide in Rwanda, may have been slaughtered. Just last month, in its most recent report, Amnesty International presented evidence of a “war against civilians” in which ethnically-motivated killing and incitement to kill has been used as the driving force.
In Europe, too, amnesia predominates. In the discussions leading to the establishment of the Tribunal, UN delegates noted that the humanitarian implications of the mass expulsion of civilians, the rapes and the ethnic cleansing were “enormous, not only for the present generation, but also for generations to come” (4).
Yet, in Kosovo, in terms of territory, literally next door to Bosnia and Herzegovina, it has been said that over one quarter of a million people were forced from their homes as village after village was destroyed. The symbols of terror are the same. The tools are the same. To quote the ICRC, once again, “civilians have become the main victims -- if not the actual targets of -- the fighting” (5). Although the UN High Commissioner for Refugees recently announced that she felt that a humanitarian catastrophe in Kosovo had been averted, there are worrying signs that the fighting will recommence in coming months. Moreover, as I’m sure you’re all aware, the Government of the Federal Republic of Yugoslavia is refusing to allow the Tribunal’s prosecutor access to Kosovo to investigate alleged violations of international humanitarian law. The end of the conflict is not the end of the story. Those responsible for alleged killings, rapes, and other torture, destruction of property and other offenses must be identified and prosecuted. The Tribunal has been given authority to carry out this task, indeed was directed to do so in March by both the Contact Group of States that monitor the situation in the former Yugoslavia and by the Security Council. Yet eight months later, the prosecutor remains unable to do her job.
It has been said that “international relations or even the community of liberal democracies, is not yet characterised by a situation in which systematic concern for individual responsibility under the rule of law trumps other policy considerations” (6). So as we approach the 21st century, we have evolved to take care of our surroundings and our fellow creatures. But we can’t yet take care of ourselves. This decade, Africa and Europe have revealed the magnitude of the hypocrisy of the past fifty years.
I am, however, an optimist. This decade also witnessed the creation of the Tribunal, and its sister court in Arusha, Tanzania. After a difficult start, I believe that we have now reached the point of no return. At The Hague, we have built three courtrooms, which our fourteen judges use for trial and appellate hearings every day. We are now engaged in an extraordinary amount of litigation activity: four cases have been completed (Erdemovic, Furundzija, Tadic, and Celebici), the most recent judgment rendered last month. Our next will be issued tomorrow. Four trials are on-going (Blaskic, Aleksovski, Jelisic and Kupreskic). Seven cases are in the pretrial stages (Kordic, Simic, Kunarac, Meakic, Knorjelac, Todorovic and Krstic). Three appeals are pending. Two cases were closed this summer after the unfortunate deaths of the accused (Dokmanovic and Kovacevic). The five member Appeals Chamber also considers appeals from Rwanda. From that tribunal there are two appeals pending and four Applications for Leave to Appeal. Our Detention Unit has had to expand to accommodate the twenty-six accused in custody. Just think about that for a moment. Twenty-six men from Bosnia and Herzegovina and Croatia who have been charged by an international tribunal with committing genocide, crimes against humanity and war crimes in their own countries have gone to a foreign jurisdiction to answer those charges in court. Some have been arrested by their States, some have surrendered, some have been detained by a coalition of international forces. Their very presence is, thus, proof that there is such a thing as international law, that it does have teeth and that it can be used to uphold individual rights and secure justice.
Both tribunals have made immensely important contributions to international criminal law, and in the process, to its efficacy. Genocide has moved from the pages of its convention, which we honor here over the next two days, to the courtroom. The ICTY has charged five individuals, including two camp commanders, with genocide. One appeared before a Trial Chamber in January this year and proudly proclaimed himself as the “Serbian Adolph Hitler.” His trial started last month. The ICTR has accused forty-two individuals of this crime of crimes. Moreover, the majority of the detainees at the ICTR’s detention facility are alleged to be planners of the genocide, those who conspired to organize, direct and facilitate the tempest of destruction in mid-1994, including Jean Kambanda, the man who was Prime Minister during the genocide. Its first two verdicts detailed the “widespread and systematic attack against the Tutsi population” (7), “the intent being to destroy the group while inflicting acute suffering on its members in the process” (8). It is now a matter of judicial record that hundreds of thousands were pursued and killed in a carefully planned attack which was prepared, incited and encouraged through the media and political and military structures and which implicated all sectors of society. Churches failed their parishes; teachers failed their pupils; government failed its citizens.
In identifying and convicting Kambanda, who has now admitted his role in this organized extermination, the ICTR has laid one of the cornerstones of reconciliation in Rwanda. In recent times, relations between the national government and the Tribunal have improved dramatically, as I witnessed during my own visit there earlier this year. While I was there, I also traveled to one of the thousands of 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?”
This experience deeply saddened me but it emboldened me to continue the work of the Tribunal. Their work must succeed. For that reason, I am confident that the strengthened relationship between the Rwandan government and the Tribunal will facilitate the rendering of justice that is so necessary to move on from genocide.
That is the crux of the matter. The tribunals are becoming a part of the fabric of the international community. In proclaiming justice as the catalyst for recovery, they represent a long-term investment that will ultimately shape people’s perceptions of what is right and wrong. They are crucial to the evolution of proscriptions that will prevent a reoccurrence of this bloody century. The Kambanda of the 21st or the 22nd century may well stop himself because he knows that what he is doing is wrong and that he will be held accountable for it. The Rwanda Tribunal, on behalf of the world community, made a judicial pronouncement that this behavior is unacceptable.
This is a lofty aim but there are already signs beyond the Tribunal that the message is being heard. Action is gradually replacing the lip service paid to human rights. In the last twelve months, we have witnessed unprecedented progress in enforcement of the laws and rights proclaimed in the last fifty years. We have heard discussion of new international tribunals for Cambodia’s bloody past and for what seems to be the Democratic Republic of Congo’s bloody present. We have rejoiced as the vast majority of States signed a permanent International Criminal Court into existence. And just in the last few weeks we have seen steps taken to compel General Pinochet to answer outstanding charges against him. All accused, whether Pinochet or Disco Tadic, are innocent until proven guilty. But ending impunity requires that they face their accusers. This ground-breaking progress holds out the hope that our children’s children will be able to look back on impunity as an anachronism of the twentieth century.
The establishment and operation of the Tribunals has shown that international justice is an achievable goal, rather than a utopian liberal fantasy. But that must not blind us to the difficulties in actually achieving the goal. The Tribunal has made monumental progress in transforming the paper resolution 827 into a fully functioning, self-regulating international criminal jurisdiction. Yet, at the operational level, we have had to struggle daily to execute our mandate.
This continues today, most graphically and most distressingly with respect to Kosovo. Ambassador Shattuck described the situation there as “a humanitarian emergency and a human rights catastrophe.” Secretary General Annan noted that the “international community pronounce[d] itself appalled by the continuing violence in Kosovo” (9). Someone is responsible for that violence. It didn’t just happen. It is the task of the Tribunal to identify and to bring to justice those individuals. But in spite of our four Security Council resolutions reaffirming both the Tribunal’s right to investigate and the FRY’s obligation to cooperate with the Tribunal, and extensive consultation between myself, the prosecutor, and the Security Council, the FRY has been able to obstruct our work with impunity. Similarly, for three years it has refused to arrest or surrender the three individuals indicted for the 1991 murder of 260 men at Vukovar in Croatia. It is time, therefore, to stop warning the FRY. It is time to take action to ensure that it obeys the law and the will of the international community. For how do we advance the principles of a more just society for the future if we trample on those principles in the present?
As both I and my predecessor have noted time and time again, if States will not help us, we will not fulfill the purpose for which the Security Council created us. We have done all we can, in literally creating an institution. We have built a court, hired staff and written a code of international criminal procedure to govern our proceedings. But our judgments and the courtrooms are not the ends in themselves, they are but a tool to heal divided communities. The Tribunal demonstrates that we can use the law to help bring about change. Bringing to justice the architects of the crimes exposes and records policies designed to expel people who are perceived as different and create ethnically homogeneous States, as well as the deception used to sway the masses into implementing those policies. This is the first step in the reconciliation process. Thus, although reconciliation cannot be imposed from outside, the importance of the Tribunal lies in creating conditions in which it can develop. But we cannot do that without the willing assistance of the members of the international community. We need States to recognize two things. First, that we must continue to grow and that they need to fund that growth accordingly. Second, that absent any territorial or enforcement agency, it is they who must imprison people we convict, protect witnesses at risk, provide evidence and investigatory assistance and arrest accused. Slowly, we are making progress in each of these areas.
That is one of the ways in which the Tribunal can make international justice a reality. Another is by deterring criminal conduct. It is here that the Tribunal can make a very real difference, by preventing people from becoming future victims of genocide, crimes against humanity or war crimes. The record to date is not good. The Tribunal did not deter the killers in Srebrenica, and it has not deterred those who have killed in Kosovo. But, as I have noted, in attempting to resolve the latter crisis, the Security Council has focused on the role of the Tribunal. Although this is welcome progress, nevertheless, the crimes have been committed. In this case, it is simply too little too late. Like justice, our perception of the importance of real-time deterrence must not be limited to our dream of what we hope to achieve fifty years, or one hundred years from now.
The situation in the former Yugoslavia remains daunting. Contact between communities of different ethnicities is still the exception, not the norm. Trust has been replaced by collective victimhood and collective guilt. Just last month when I visited Sarajevo, President Izetbegovic told me that the Tribunal could not succeed until the architects of “ethnic cleansing” were in The Hague. While they retain their influence and their power, they are able to disseminate hatred and falsehood and prevent return or reconstruction. The Tribunal as a judicial body can only achieve so much. However, it is now recognized by all that it is the golden thread of the peace process, that there can be no peace without justice, while those responsible are free to continue poisoning their societies. May I make it clear that this applies to all persons of all ethnicities who have misused their positions of power.
Thus, if peace is to prosper in the countries of the former Yugoslavia, the Tribunal must succeed. But it is no longer up to us in The Hague. The court exists and it functions. We need the support of our founders. We were created to help communities in the countries of the region. We were created by the community of States as a signal to future tyrants that the laws of humanity would, finally, be enforced. So if we continue to be impeded as we try to fulfill that mandate, the Tribunal will not have failed. It will have been failed by the very States that created it.
If the victims of the Holocaust and other tragedies of this century’s hypocrisies and slaughter are not to have suffered in vain, that cannot and must not happen.
- “Time and Narrative,” Volume 3, Paul Ricoeur, University of Chicago Press, quoted in “From Mein Kampf to Auschwitz,” Dominique Vidal, November 1998: 2.
- Djibouti’s Permanent Representative to the United Nations, speaking during the debate on the SCR 827.
- We Wish to Inform You that Tomorrow We Will Killed With Our Families: Stories from Rwanda, Philip Gourevitch (Farrar, Strauss, and Giroux, 1998: 356).
- Japanese Permanent Representative speaking during the debate on SCR 827.
- ICRC update no 8, 20 September, 1998.
- International Criminal Courts: A Political View, David P. Forsythe, Netherlands Quarterly of Human Rights (vol 15/1, 1997: ?-19).
- Kambanda at para 39.
- Akayesu at para 733.