[Congressional Record Volume 142, Number 138 (Monday, September 30, 1996)]
[Senate]
[Pages S12017-S12020]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   A CALL FOR JUSTICE: SUPPORT THE INTERNATIONAL WAR CRIMES TRIBUNALS

 Mr. PELL. Mr. President, as I look back over my years of 
service here in the Senate, I am struck by how much international 
relations have changed and how much they have stayed the same. In just 
the last few years, we have witnessed the dramatic end of the cold war 
and a wave of democracy spreading around the globe from the Republic of 
China on Taiwan to the newly established countries in Eastern Europe. 
Advances in technology have opened new channels of communication 
between people of different cultures and languages. Economic 
development, investment and trade have become major factors in 
bilateral relationships. And in unprecedented fashion, the 
international community has reached consensus on the need to reduce 
nuclear weapons, to protect the environment, and to promote 
international peace and security.
  Yes some things have not changed since my arrival in the U.S. Senate. 
The world is still plagued with civil wars. Children continue to lack 
access to basic health care and immunizations. And despite the lessons 
learned from the horrible atrocities that took place under the Nazi 
regime in World War II, we have failed to stop genocide and ethnic 
cleansing from occurring once again. In wars that have ravaged both the 
former Yugoslavia and Rwanda, aggressors have flown in the face of 
international law and committed the gravest crimes against humanity. If 
we in the international community are determined to learn the lesson 
this time,

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we must support the work of the International War Crimes Tribunals. The 
work of these tribunals is critical in the effort to establish genuine 
and long-lasting peace in war-torn areas around the globe.
  Created by the United Nations Security Council, the current two war 
crimes tribunals seek to find justice for the victims of genocide and 
other war crimes that took place in the former Yugoslavia and in 
Rwanda. After witnessing the brutality of the wars in these two 
regions, the international community seized the opportunity to once 
again publicly prosecute and punish the planners and executioners of 
the genocide. The tribunals at Nuremberg after World War II have served 
as an important precedence for the current tribunals. The trials at 
Nuremberg were the first time that the international community 
recognized some crimes as so heinous that all states have the right and 
responsibility to prosecute the offenders. I am proud to say that my 
father, the late Herbert C. Pell, a former congressman from New York 
City, was President Franklin Roosevelt's representative to the U.N. War 
Crimes Commission which established the Nuremberg Tribunals. It is a 
tragedy that today there is once again a need for these tribunals to 
punish those who commit atrocities and other crimes against humanity.
  The task confronting the two war crimes tribunals is immense and 
complex. In both the former Yugoslavia and in Rwanda, U.N. 
investigators are struggling to collect documentation and eyewitness 
accounts of the murder, rape, ethnic cleansing, and other horrible 
crimes that were committed during those violent conflicts. But despite 
the difficulties encountered in trying to amass evidence and to arrest 
the accused, the international community has recognized that the work 
of the tribunals is critical to finding a long-term solution to the 
conflicts in both Bosnia and Rwanda. Unless the perpetrators of the 
genocide are held accountable for their actions, the cycle of violence 
will not be broken and could start once again in either country. 
Equally alarming, unless the international community decisively 
condemns these crimes, others may be encouraged to commit similar acts 
without fear of retribution.
  The significance of the war crimes tribunals has been emphasized 
most compellingly by the head prosecutor of the tribunals, Justice 
Richard Goldstone. In a recent statement to the Canadian Bar 
Association at the eleventh Commonwealth Law Conference, Justice 
Goldstone noted that:

       Without meaningful justice, there cannot be enduring peace 
     in either the former Yugoslavia or Rwanda . . . it is surely 
     unrealistic to expect the survivors to forget and forgive--to 
     accept blanket amnesties and impunity for those most 
     responsible . . . Accountability is essential if the hated is 
     finally to come to an end.

  Mr. President, I would like to submit a copy of Justice Goldstone's 
address for the Record.
  As the head prosecutor for both tribunals, Justice Goldstone has 
placed an indelible mark on the course of international human rights 
law. Under his tenure, the Yugoslav tribunal has indicated 76 persons, 
and the Rwandan tribunal has indicted 19. Despite constant frustrations 
caused by insufficient resources and communications problems, the 
tribunals are setting important legal precedence for prosecuting those 
who commit appalling atrocities in the name of conventional warfare. It 
is truly a testament to the legal, diplomatic, and political skills of 
Justice Goldstone that so much progress has been made. With this in 
mind, I would like to note my own deep regret that Justice Goldstone 
will be leaving the tribunals at the end of this month to return to 
South Africa and a seat on its constitutional court. Over the last few 
years, I have had the privilege of meeting with Justice Goldstone on 
several occasions, and I found him to be an eloquent and influential 
spokesperson for the tribunals. He will be sorely missed, but I will 
join with many others in expressing my high expectations for his 
successor, Louise Arbour. We look forward to seeing the work of the 
tribunals continue with the same high caliber of leadership set by 
Justice Goldstone.
  Clearly this is a critical time for the war crimes tribunals. Now 
more than ever, the international community must renew its commitment 
to the tribunals so that the progress accomplished thus far is not 
lost. The hard work of Justice Goldstone, and of the prosecutors, 
justices, and staff, certainly merits greater financial and political 
support from all U.N. member states. The victims who have survived the 
genocide and other horrible crimes are looking to the tribunal to see 
justice handed down. We must ensure that the tribunals are given the 
resources and political will to achieve their mandates. That is why I 
strongly supported the Clinton administration's efforts to establish 
the Yugoslav and Rwandan tribunals through the United Nations. And this 
year, I joined my colleagues in supporting a provision of the fiscal 
year 1997 foreign operations appropriations bill to provide $25 million 
of U.S. financial support to the tribunals. Of course, U.S. support 
alone is not enough. But through the contributions and cooperation of 
all states, the international war crimes tribunals will work to ensure 
that the human rights of all people are protected under international 
law.
  Justice Goldstone's address follows:

                       Prosecuting War Criminals

       Almost a year ago, in Ottowa I was invited to address the 
     Conference of Commonwealth Chief Justices and International 
     Appellate Judges on the work of the UN International War 
     Crimes Tribunals. It was extremely encouraging that the 
     subject of the prosecution of war crimes found a place on the 
     agenda. It is no less encouraging that almost a year later, 
     at this important Conference, the subject is again receiving 
     attention.
       Before the Nuremberg and Tokyo Trials, the prosecution of 
     war criminals would universally have been considered to be of 
     national and not international concern. Victims of war crimes 
     had recourse only to national courts which had jurisdiction 
     over the perpetrators. States whose forces were responsible 
     for the crimes seldom, if ever, prosecuted their own 
     combatants. That state of affairs was changed by the Nazi 
     Holocaust. It was that affront to human dignity which led to 
     the internationalisation of humanitarian law. The recognition 
     by the international community of the concept of a crime 
     against humanity was the essential key to international 
     jurisdiction. There were crimes so evil and so over-reaching 
     that it was the right and the duty of all of humankind to 
     try, and if found guilty, punish the perpetrators. There was, 
     in short, universal jurisdiction. It was that recognition 
     that provided the moral and legal underpinning for the 
     conferment of jurisdiction to punish perpetrators outside the 
     country where the crimes were committed or where the accused 
     happened to be found.
       At the time of the establishment of the United Nations, it 
     was widely assumed that an international criminal court would 
     be set up. Indeed, there was an express reference to such a 
     court in the 1948 Genocide Convention. But it was not to be. 
     States were too jealous of their own sovereignty even to 
     allow their citizens to be surrendered to an international 
     jurisdiction even for the most serious war crimes. Alas, 
     there was no court before which Pol Pot, Saddam Hussein and 
     other post-World War II genocidal leaders could be 
     prosecuted.
       The establishment by the Security Council of the 
     International Criminal Tribunal for the former Yugoslavia 
     came as a surprise. It was generally accepted by the experts 
     that an international criminal court would have to be 
     established by treaty. It had never been seriously 
     contemplated that such a court would be established as a 
     measure which could assist in the re-establishment of 
     international peace and security. It was that determination, 
     under Chapter 7 of the UN Charter, that gave the Security 
     Council the power to take that step. It was that act and the 
     subsequent establishment of the Rwanda Tribunal that have 
     drawn wide attention to the global dimensions of justice. In 
     the case of both tribunals, the Security Council made a 
     determination that the widespread and systematic atrocities 
     perpetrated in both countries constituted a threat to 
     international peace and security. That, in itself, was 
     significant, because it was the first time that the linkage 
     had ever been made by that body. Even more significant was 
     the consequential decision that bringing to justice the 
     individuals responsible for those violations was an 
     appropriate response to that threat. The linkage between 
     justice and peace in the international arena was born.
       Notwithstanding that action by the Security Council, there 
     have been serious challenges to the concept that peace and 
     justice not be in opposition to each other. There were, and 
     still are, those who argue that the establishment of the 
     Tribunal for the former Yugoslavia would derail any nascent 
     peace process. Just recently, an anonymous article appeared 
     in the 1996 Human Rights Quarterly published by The Johns 
     Hopkins University Press, in which the author wrote:

       ``Targeting violators of human rights and bringing them to 
     justice is essential. Accusation, however, comes more easily 
     than making peace. The quest for justice for yesterday's 
     victims of atrocities should not be pursued in such a manner 
     that it makes today's living the dead of tomorrow. That, for 
     the human rights community, is one of the lessons of the 
     former Yugoslavia. Thousands of people are dead who should 
     have been alive--

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     because moralists were in quest of the perfect peace. 
     Unfortunately, a perfect peace can rarely be attained in the 
     aftermath of a bloody conflict. The pursuit of criminals is 
     one thing. Making peace is another.''
       This debate over the potential of the Tribunal to 
     destabilise the peace process was particularly intense just 
     before the negotiations at Dayton. More particularly, there 
     were those who argued that it would be impossible to 
     negotiate a peace agreement in circumstances where the 
     leaders of a principal party were under indictment for war 
     crimes. Radovan Karadzic and Ratko Mladic were, of course, at 
     the centre of that concern. The implication was that peace 
     would require the sacrifice of the laudable but unrealistic 
     objective of pursuing justice. Happily the cynics have been 
     proven wrong. Notwithstanding the indictment twice over both 
     Karadzic and Mladic, the peace agreement was signed in Paris 
     and its military objectives have been successfully carried 
     out by IFOR. I have no doubt that it those alleged war 
     criminals had been present at Dayton no agreement would have 
     been reached. And, if they had been allowed to stand for 
     election next month that election would not take place. 
     Certainly, the Muslim leaders would not consider 
     participation.
       The position with the Rwanda Tribunal is somewhat 
     different. In the first place, it was established by the 
     Security Council at the request of the Government of Rwanda--
     the Government whose forces brought an end to the genocide of 
     mid-1994. The leaders who were responsible for the 
     organisation of the atrocities leading to the murder of about 
     one million people had fled the country. They are not amongst 
     the estimated 70,000 people who are today being kept in 
     atrocious prison conditions in Rwandese prisons. They have 
     moved to other countries in Africa, Europe and North America. 
     Some of them took much of wealth of Rwanda with them. For 
     these reasons, in particular, it is appropriate that there is 
     an international tribunal. Few countries are likely to be 
     willing to extradite persons to Rwanda before that country's 
     criminal justice system has been re-established and it has 
     reasonably acceptable prison conditions.
       The Rwanda Tribunal was established at the end of 1994. It 
     took many months to staff an office in very difficult 
     conditions in Kigali. It took the UN Headquarters eleven 
     months to appoint a Registrar for the Tribunal at its seat in 
     Arusha in Northern Tanzania. The first cells there were only 
     completed two months ago. At the time of writing this address 
     seven indictments have been issued. Three of those indicted 
     have been transferred from Zambia to the Tribunal in Arusha. 
     They have made their initial appearances and the first trial 
     is about to begin. Apart from the persons already indicted, 
     provisional charges have been brought against four persons 
     held in The Cameroons. They are expected to be transferred to 
     Arusha in the coming days. They include Colonel Theoneste 
     Bagasora, against whom we have evidence that, as chief of the 
     Cabinet of the Ministry of Defense at the time the genocide 
     began, he was one of the central persons responsible for the 
     atrocities which followed. Another was one of the senior 
     directors of the radio station, Radio Milles Collines, that 
     spewed out hateful propaganda which was so important a weapon 
     in the hands of the perpetrators.
       I have no doubt that without meaningful justice, there 
     cannot be enduring peace in either the former Yugoslavia or 
     Rwanda. Where peoples have witnessed and suffered mass 
     systematic murder, rape, torture and other unspeakable 
     atrocities, and where millions have been displaced, it is 
     surely unrealistic to expect the survivors to forget and 
     forgive-to accept blanket amnesties and impunity for those 
     most responsible. Such a policy would inevitably 
     perpetuate the cycles of violence which have marked the 
     recent histories of both Rwanda and the former Yugoslavia. 
     Accountability is essential if the hatred is finally to 
     come to an end-there is no substitute for avoiding 
     collective guilt upon which genocide feeds. In short, 
     without effective justice, there is little hope for an 
     enduring peace in societies suffering the aftermath of 
     gross human rights violations.
       Unfortunately, notwithstanding the remarkable and 
     praiseworthy efforts of the Security Council, we are still a 
     long way from effective international criminal justice. The 
     failure by the Implementation Force (IFOR) to go out and 
     arrest those indicted by the Yugoslav Tribunal is a matter 
     for deep regret. The 60,000 strong force undoubtedly has the 
     capability to do so, Under the Dayton Agreement it has the 
     legal right to do so. The fault lies not with the IFOR 
     commanders but with their political bosses. Their policy is 
     not to risk the lives of members of IFOR. But what are there 
     for. As their name proclaims, they are there to implement the 
     Dayton Agreement-but in this important respect they are being 
     precluded for doing so. As is well known, the policy of the 
     North Atlantic Council is that only those who literally fall 
     into the hands of the IFOR soldiers will be arrested. It 
     should come as no surprise that not one arrest has taken 
     place since the IFOR troops first entered Bosnia Herzegovina 
     at the end of last year. And, if the policy is not changed 
     none is likely to be made. Far from endangering what may be a 
     fragile peace in Bosnia, the arrest of some of the leading 
     Serb and Croat indicated war criminals would have avoided 
     many of the recent difficulties of Mr. Carl Bildt and the 
     OSCE election organizers. It would have avoided the 
     unfortunate spectacle of Mr. Karadzic making fools of some 
     international leaders. That policy is also calculated to 
     undermine the credibility not only of the international 
     community but also of the Tribunal and international justice 
     itself in the long term, this could create a disastrous 
     precedent for the future exercise of international criminal 
     jurisdiction.
       The establishment of the two ad hoc tribunals for the 
     former Yugoslavia and Rwanda has to be understood in a 
     broader context. Even their most ardent supporters would not 
     suggest that the response by the Security Council to two 
     specific instances of humanitarian law violations is a 
     satisfactory solution to the problem of world-wide massive 
     war crimes. Many people question, with justification, why we 
     are investigating and prosecuting violations in the former 
     Yugolslavia and Rwanda and not similar shocking conduct in 
     other parts of the world. It is disciminatory, and worse, the 
     decision as to where such atrocities should be prosecuted is 
     a political one taken by a political body-the Security 
     Council. It is hardly fair or just that, by definition, war 
     crimes committed by a permanent member of the Security 
     Council, or by a country protected by such a member, would 
     never be the subject of the exercise of that power. That 
     notwithstanding, the establishment of the two tribunals is a 
     significant step in the direction of having a permanent and 
     independent international criminal court To the extent that 
     they are successful, they will hasten that development. And, 
     if we are unsuccessful in The Hague and Kigali, we will 
     retard that process. It is for that reason that those of us 
     involved in this process are so concerned when the 
     international community fails adequately to support and 
     protect a judicial body created by it.
       On the more positive side, we have accomplished far more 
     than many informed observers anticipated when the two 
     tribunals were established. The Yugoslav Tribunal has issued 
     16 indictments in which some 76 defendants have been named. 
     One of them, Erdemovic, a former member of the Bosnian 
     Serb Army, recently pleaded guilty to crimes against 
     humanity. He was involved in the murder of innocent Muslim 
     civilians in the vicinity of Srebrenica in July 1995. He 
     accepted responsibility for shooting at least seventy of 
     the many hundreds who were killed. At this time he has not 
     yet been sentenced by the trial chamber. Apart from 
     Karadzic and Mladic, other leaders indicted Dario Kordic, 
     the former vice-president of the self-proclaimed Croatian 
     Republic of Herceg-Bosnia and Milan Martic, the 
     ``President'' of another self-proclaimed Serb 
     Administration in Knin prior to its destruction last year 
     by the Croatian Army. The most recent indictment relates 
     to the town of Foca in Bosnia Herzegovina. The charges 
     arise out of the systematic rapes and sexual assaults 
     perpetrated against the female population of that town by 
     members of the Bosnian Serb Army. At present we have seven 
     of the indictees in our custody, but alas, none of the 
     leaders to whom I have just referred.
       The trial of Dusko Tadic, which began many weeks ago, is 
     likely to be followed by that of Tibotil Blaskic, a Croatian 
     general, who voluntarily surrendered himself to the Tribunal 
     to stand trial. He is the former regional commander of the 
     Croatian Defense Council in the Lasva River Valley area of 
     Bosnia Herzegovina, and was subsequently promoted to the 
     Chief of Staff of the Mostar Headquarters of the HVO. He has 
     been indicted on charges of crimes against humanity and grave 
     breaches of the Geneva Conventions.
       We have also brought a number of reconfirmation hearings 
     where indicted persons have not been arrested and surrendered 
     to the Tribunal. In these proceedings, the Prosecutor is able 
     to present, in public, some of the evidence in support of the 
     indictments. This is not a trial in absentia but a proceeding 
     designed to enable a trial chamber to issue an international 
     arrest warrant. The most recent proceeding of kind was that 
     against Karadzic and Mladic and resulted in the issue of such 
     warrants against both of them. Having regard to the evidence 
     led it is even more difficult to accept the supine policy of 
     the leading western nations with regard to their apprehension 
     and surrender to the Tribunal.
       This is an important time in the lives of both tribunals. 
     The financial crisis of the United Nations has made our 
     progress very difficult. We have constantly been under-
     resourced. Without the generosity of a number of governments, 
     and particularly the United States and The Netherlands, we 
     would not be at the trial stage in either The Hague or 
     Arusha. I have already referred to some of the credibility 
     problems facing the Yugoslav Tribunal. If the people we 
     indict are not brought to trial then we will not be able to 
     fulfil our mandate. In particular, we will be seen to have 
     failed by the victims themselves. The Security Council 
     undoubtedly raised their expectations in establishing the 
     Tribunal for the former Yugoslavia and endowing it with 
     peremptory powers under the UN Charter. It sent a message to 
     those victims that the international community had taken 
     notice of what they had suffered and that message carried 
     with it the promise that some justice would be afforded them. 
     Their expectations were again raised when, from time to time, 
     the Tribunal issued indictments. Imagine their frustration 
     when they heard and read that IFOR would not be permitted to 
     take the risk of seeking to arrest those indicted. Imagine 
     their frustration

[[Page S12020]]

     when Karadzic and Mladic continue to flaunt the terms of the 
     Dayton Agreement. Whether the elections are able to take 
     place in a reasonably free and fair atmosphere still remains 
     to be seen.
       In Rwanda the problems are different and no less serious. 
     Two years after that country was destroyed by its then 
     genocidal rulers, its criminal courts are still not 
     functioning. The frustration of the members of its present 
     government cannot be exaggerated. Not the least of their 
     frustrations is what they understandably regard as an 
     unacceptable delay in the International Tribunal becoming 
     operational. Then, there is the unfortunate imbalance by 
     reason of the Rwandan Law recognizing death sentence while 
     the International Tribunal has no such power. Add to this the 
     recent wish of the Rwandese Government wishing to try leading 
     members of the former government in Kigali and the clash 
     between that wish and the Tribunal legitimately exercising 
     its right of primacy and insisting on the leaders being tried 
     in Arusha. Finally, there is the disturbing fact that the 
     Rwanda Tribunal has increasingly become forgotten by the 
     Western media. This may change when the trials are under way.
       I hope that I have said sufficient to bring to your 
     attention some of the positive and some of the negative 
     features which have emerged in consequence of the 
     establishment of the two tribunals. Without strong public 
     pressure in a number of countries they would certainly not 
     have come into being. Without continued pressure they will 
     not succeed. It is for that reason, in particular, that I am 
     grateful for this opportunity to bring to your attention some 
     of the important issues relating to the future of the 
     tribunals. Not only are they important for the victims. If 
     they succeed they can also provide a powerful deterrent for 
     the future. Your support for the work of the tribunals and 
     for a permanent international criminal court is of cardinal 
     importance.

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