The Hague Tribunal’s response to “Voice of Russia”

Judge Meron refrained from comments about the Tribunal’s latest news, namely about the start of Ratko Mladic’s trial. He explained that he’s not allowed to discuss ongoing cases. But he intends to discuss with Russian ambassador in UN Vitaly Churkin the state of affairs in the ICTY.

I had a meeting with Ambassador Churkin when I visited the United Nations Security Council in December. I will be in the Security Council again the first week of June, and we are requesting another meeting with Ambassador Churkin. Russian understanding and sympathy are very important to us, and I will be sure to do everything I can to explain our situation to him. You were leaders in the great fight against Nazism during the Second World War, and I am very much aware of the suffering the Russian people endured as a result of Nazi war crimes. No country in the world suffered as much as Russia did. Therefore, I am quite sure that once Russia understands our problems and our mission of bringing an end to impunity, it will be sympathetic to our role.

Russia supports the closure of the ICTY, so this is one of the problems you will discuss?

I can assure you that I also support the closure of the ICTY. The ICTY was not created to exist forever. The point, however, is that it must finish its work in a lawful way; in a way which respects the law and due process, and which takes account of the rights of the accused.

The ICTY was established in 1993, could you sum up the results of its work over this time?

Since its establishment in 1993, the ICTY has indicted 161 persons, and thanks to the strong support of the international community, all 161 indictees have been accounted for.

Proceedings have been concluded against 126 persons and there are ongoing proceedings against 35 others: one in pre-trial, 17 in trial, and 17 in appeal proceedings.

I mentioned the 161 indictees, and I believe one of our most significant achievements is that we are perhaps the only court or tribunal which has seen 100% enforcement – 161 indictments, 161 people accounted for. Our sister-institution in Arusha, the ICTR, still has 9 fugitives from justice.

Moreover, the Tribunal is the first international criminal tribunal to have been established since the Nuremburg and Tokyo tribunals of World War II. After Nuremberg, for a half century, there were no international tribunals and the demand for ending impunity was remote. Thus, with the establishment of our Tribunal, we have become a pioneer in the development of substantive and procedural international criminal law. By doing so, the Tribunal was critical in laying the foundation for future international criminal courts, including the permanent International Criminal Court. Without our existence, without our success, it would never have been created. We have shown that international trials and international prosecutions of crimes so heinous that they offend our common humanity, are both possible and credible.

We have also helped influence the development, application, and enforcement of international humanitarian law in national courts, particularly in the former Yugoslavia. As you know, we have transferred cases involving mid- and lower-level accused to national jurisdictions in the region, as countries like Serbia, Bosnia, and Croatia have now developed the capacity to try cases involving international criminal law. We are assisting those jurisdictions by providing technical help and information, and we have developed outreach and education programs to encourage the development of the rule of law and to strengthen national prosecutions in countries of the former Yugoslavia. We are deeply aware of the fact that the future of international enforcement, criminal enforcement of humanitarian law, and human rights rests on sovereign countries. We cannot do most of this work – this work depends on national courts – international criminal tribunals can only serve as a model.

Finally, the fact that the Tribunal has impartially and fairly adjudicated the cases brought before it has been a source of great encouragement to victims in the former Yugoslavia. Many victims groups, such as “Mothers of Srebrenica”, have said that without the Tribunal they would not have had the courage to return to their homes after the conflict.

So, after the closure of the ICTY (in 2013) the International Residual Mechanism for Criminal Tribunals will start its work? 

Yes, we are supposed to conclude our work, as you have pointed out, by December 31, 2014. In Resolution 1966 of 2010, which was, I believe, a unanimous resolution of the Security Council, namely with the support of Russia, the Security Council decided that something called the International Residual Mechanism will then be established.

The Residual Mechanism will have two branches – one in the Hague, one in Arusha. The Arusha branch of the Residual Mechanism will start operating in just a few months, on July 1, 2012. The Hague branch will start on July 1, 2013. These are the dates that were determined by the Security Council. Given the fact that the ICTY’s trials and appeals will last until December 31, 2014, there will be a period of time during which the Tribunals and the Residual Mechanism will co-exist and operate side by side.

The Residual Mechanism will ultimately take over a number of functions from the ICTY, which will need to continue for several years. These functions include the protection of victims and witnesses, review proceedings (which arise if an appellant says “we have now discovered new evidence and want to reopen that case”), contempt proceedings (for false testimony, intimidations of witnesses, etc.), and the enforcement of sentences. All those functions will be taken over by the Residual Mechanism. However, it is also envisaged that the Residual Mechanism will have to complete a certain number of appeals from cases tried by the ICTY and ICTR.  If a notice of appeal is submitted before July 1, 2013, then the appeal will fall under our competence. If not, it will fall within the competence of the Residual Mechanism.

The Residual Mechanism has currently been established to operate for a period of four years. At that time, and every two years thereafter, the Security Council will review the need for continuing the Residual Mechanism.

What is the difference between the Residual Mechanism and the ICTY? First, the main difference is the question of size and budget. The idea is that the Residual Mechanism will be a small and lean institution. It is anticipated that the continuing activities of the Residual Mechanism, for instance, considering review cases and dealing with the protection of victims will be handled by roughly 70 staff members. As a comparison, our current staff is somewhere in excess of 800. We are drawing down rapidly in the ICTY, but, as I mentioned, the RM is supposed to have only about 70 for its continuing activities. Of course, we may also have to hire staff for cases and appeals, but at the moment we cannot predict how many.

Another important difference concerns the judges of the Residual Mechanism. The United Nations General Assembly, in December, elected a roster of 25 judges for the Residual Mechanism. These judges will not be paid full time. This is the first experiment in international judicial institutions where judges will be paid only per day of work. There is one existing model for this arrangement – the so-called “ad hoc judges” in the International Court of Justice, wherein a country which does not have a judge on the court may nominate an “ad hoc judge” for the duration of the proceedings. Those judges are also paid per day of work. But this is new for international criminal courts.

It is a very economical way of working, but, from a managerial perspective, it may be very difficult, as the Residual Mechanism will have 25 judges stationed all over the world. The United Nations Secretary-General appointed me as President of the Residual Mechanism, so I will have to ensure that I find judges who, despite the fact that they may have other jobs (because the Residual Mechanism will not be not a full-time job), will be ready to come when I need them. It is not a simple task, but I hope it works, as I hope people will feel enough of a commitment to international justice to respond to the call.

The ICTY considers crimes committed on the territory of Yugoslavia since 1991. During the entire existence of the ICTY has there ever been a reason to doubt that politics doesn’t influence the juridical decisions?   

I am quite convinced, and I’m speaking very honestly, that politics have never played a role at the ICTY. If politics were a guiding factor in our work, I would not stay here one more day. I am a judge, and at my age, I do not do things for my career – this is a public service. Article 7 of our Statute requires that the Tribunal considers only individual criminal responsibility, and Article 21 sets out extensive rights for the accused, including the right to a fair trial with the presumption of innocence. If you read the press, you will see that we are equally criticized by everybody. When we render a judgment against a Croat, we are criticized by the Croatian media, and sometimes even by the Croatian government. If we render a judgment against a Serb, we are similarly criticized in Serbia. The fact that we are criticized by everyone shows that we are not involved in politics, that we are impartial, and that we aspire to do justice.         

In Russia the ICTY is often called a “straight jacket” for Serbia. In your opinion what is the influence of the ICTY in relations between Serbia and the EU?

Given that I am in a judicial role, I cannot comment on the relations between Serbia and international organizations, such as the United Nations, or regional organizations, such as the EU. I feel that the ICTY has been a strong force for stability, peace, and reconciliation in the former Yugoslavia, and can only serve to benefit the countries in the region. I am personally very happy that we have no outstanding fugitives from the former Yugoslavia, and I have no doubt that the relations between Serbia and the Tribunal will only improve. At the moment, we are working with Serbia to see if it is interested in establishing information centers, where people in Serbia, law students, and advocates could access transcripts of the Tribunal’s proceedings. We are also in the process of trying to translate our judgments and records into the Serbian language. I must say, I am quite optimistic about the development of relations with Serbia, and the fact that there are no more fugitives also helps. There is no reason why the ICTY should be an obstacle to the best possible relations between Serbia and the world.              

The public committee for the protection of Vojislav Seselj was created in Russia and according to its information and information from some Russian mass-media we know that 19 people died in pre-trial prison. But The Voice of Russia received a reply letter from the ICTY with the information about 4 defendants died.

I will provide you with the appropriate names and figures.

Four indicted individuals died in ICTY custody: Slavko Dokmanović, Milan Kovačević, Slobodan Milošević, and Milan Babić. Babic had been transferred to a country with which the Tribunal had an enforcement agreement to serve his sentence, but returned to the Detention Unit to testify in one of the ongoing cases at the time. 

Miroslav Deronjić died outside the Netherlands, while he was serving his sentence. Rasim Delić passed away at his home while on provisional release pending the resolution of the appeals. Mehmed Alagić, Đorđe Đukić, Momir Talić died while on provisional release.

Ten people died before they were transferred to the Tribunal. The Tribunal had nothing to do with that, as they were not yet in our hands. These individuals were: Stipo Alilović, Janko Bobetko, Goran Borovnica, Simo Drljača, Dragan Gagović, Janko Janjić, Nikica Janjić, Slobodan Miljković, Željko Ražnatović, and Vlajko Stojiljković.

Thus, the truth is that, as of today, it is not 19 but four people who have died while in the custody of the ICTY. All of this information is not confidential; it is publicly available and can be found on the ICTY’s website.

You mentioned ex-president of Serbia Milošević who died. In your opinion did his death influence the reputation of the tribunal?

First of all, let me say that his death was a great tragedy. I wish he would have lived through the conclusion of this trial and the judgement. But, he died of natural causes, and this was established by the investigations carried out, including the judicial commission headed by Judge Parker who was the vice-president of the Tribunal at the time. When Milošević  died, investigations were performed in a very professional manner. There was an investigation by the Netherlands, and there was an investigation by Judge Parker, which was ordered by the President of the Tribunal. The reports of these investigations were made public to ensure full transparency concerning the circumstances that led to his death. Do I think that it affected the reputation of the Tribunal? I don’t think so.  

Did anything change for other prisoners after Milošević ’s death?

I think that there are misconceptions regarding the medical treatment Mr. Milošević received. Mr. Milošević was given the best medical care possible, as is the situation for all other ICTY prisoners. Let me point out that if there is criticism of the Detention Unit, it is often that it provides conditions that are too luxurious. In comparison with my own country, the United States, I think that the conditions in our Detention Unit are far superior to those of a typical prison in the US. Individuals have their own cells, separate shower facilities, their own televisions, and facilities to work on their defense. They are provided with very generous visiting time, with time to visit with their families in private, including spouses. It is thus, in a way, a modern type of prison.       

Milošević died before his trial was concluded and it gave him a chance to come out innocent. You know in Serbia many people consider Milošević as a hero. In your opinion is he really innocent?

I would put it in somewhat different terms. Before conviction by the Tribunal, all accused are entitled to a presumption of innocence. Mr. Milošević is also entitled to the presumption of innocence. This is a very fundamental principle of judicial process, which we must follow with the regard to every single one of our defendants including, of course Mr. Milošević. Since Mr. Milošević died before conviction, there is no formal finding regarding his culpability.     

The Hague tribunal is often reproached by condemning most of all the Serbians. In the beginning of 1990s in the period of disintegration of the country and the war, could we say that one was more criminal than other and the Serbians were more criminals than Kosovars? 

I think this is a very negative approach to adopt. We should not think in terms of culpability on grounds of nationality. We should not think in terms of ethnicity. Instead, we should ask ourselves whether a particular individual is responsible for war crimes. I certainly would refuse to attribute greater responsibility to any ethnic group – to the Serbs, or to anybody. Some people have committed crimes, and everyone who has committed crimes and crimes which were sufficiently serious, who was indicted by a prosecutor, should be afforded a trial based on the presumption of innocence. So, I am against attributing moral responsibility to any one group. The heart of international criminal justice is individual responsibility. Nationality plays no role.           

Let’s turn to Milošević’s case and the case of Vojislav Šešelj. He spent four years in pre-trial before the investigation started and it’s been five years after the investigation. Why it’s going on for so long? What is the problem? 

I’m afraid I have to insist that I am not allowed to discuss individual cases.

You know that Šešelj had a great juridical education and experience. What is your opinion of Šešelj as a lawyer because he intended to defend himself?

Again, you are asking me to make comments about an ongoing case. If you would have asked me how X or Y is preparing his argument when I was a professor of law at New York University, I would have been happy to answer. But as I am now a Judge, I cannot comment on individual cases.

Nowadays one talks about the creation of the Milošević's list and we understand that evidentially it’s like that answer of the creation of the Magnitsky’s list that could be created by the United States. Shouldn’t we think in whole about the principal reasons for making list like this? What is the idea of such lists and sanctions?     

This is really a political question. I do not know much about the Magnitsky’s case, but as I was saying with respect to the case of Mr. Milošević, the medical care he received was of the highest quality. And the investigation into the cause of his death was transparent. As I mentioned, in addition to the investigation conducted by the Tribunal, the Netherlands’ authorities, who have no reason not to be objective, also prepared a fully transparent report. I would refrain from any comparison. I think that lists have a political character. I do not believe in lists of any kind; I believe in individual responsibility.

In the book “The Hunt: Me and the War Criminals” Carla Del Ponte described that in the beginning of her work in the ICTY she wanted to get the support of the CIA in searching and arresting of those men who were accused of war crimes and especially in arresting Bosnian and Serbian leaders Karadžić and Mladić. And according to her, for Georges Tenet, Karadžić was even more important terrorist than Osama bin Laden. However she didn’t get any real help, according to her. She complains that particularly CIA did not do anything to catch those criminals.     

Carla Del Ponte wrote this book as an individual person, after she left the Tribunal. I do not think it would be appropriate for me to comment on Carla Del Ponte’s writings. However, the general point that I would like to make is this: when the work of the Tribunal began, the support of the international community was very limited.

I remember I was still a professor at New York University when the Tribunal started. In the beginning, I was quite pessimistic about the future of the Tribunal, as there was such limited support from the international community, and since, during the early years of the Tribunal, international forces in the former Yugoslavia did not cooperate in making arrests.

But, over time, the attitude of most countries towards the Tribunal has changed. In due course, we have seen much greater cooperation from NATO, the EU, and the United States in assisting the Tribunal. In this way, I assume that the picture Del Ponte is portraying is one that prevailed in the early years of the Tribunal’s work. Later, things changed. They have improved because we have established our credibility. People now realize that we are objective in our focus on individual responsibility.    

Is it true that the US covers 90% of the expenses of the Tribunal?

Where did you get this information? I prepared the official figures of the United Nations for you, so you can easily check them all. The Tribunal’s budget comes from the regular budget of the United Nations. It is not funded by any one state directly, and certainly not by the United States.

The United States, like all other nations, contributes to the UN’s budget. I checked the United States’ contribution to the budget of the United Nations before our meeting, and the US contribution to the United Nations budget is 22%. Thus, not only do we not get any funding directly from the United States, but you should also note that the United States’ contribution to the United Nations budget, and therefore to the budget of the Tribunal, is 22% and no more.        

During the Second World War you got into the concentration camp and in the beginning of our interview you told me about the fight of Russia with Nazism. What is your opinion on the Nazi ideas that gained popularity in some ex-USSR countries?

You can imagine how I feel about any Nazi ideology. I believe that countries have a responsibility to promote human rights and the values enshrined in the United Nations Charter. I do not want to comment about specific countries, as this would not be an appropriate role for a Judge, but I very much hope that we will see more and more commitment around the world to the value of human rights, including in countries that you have mentioned, and to the fight against anything that resembles Nazism. Several of my relatives managed to escape to Russia during WWII and they survived, so I am very conscious of the role that Russia played during WWII, not only in fighting against the Nazis but also in saving so many refugees who managed to escape from Poland as the Nazis were approaching.

Ksenia Plotnikova and Yulia Monakhova contributed to this publication.