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Stefano Sannino

"The tribunal has always been, I think, whatever has been said about it, friendly and impartial, friendly to Serbia, friendly to all the people in the area."

Theodor Meron, president of the ICTY, judge Theodor Meron

The president of the Intenrational Criminal Tribunal for the Former Yugoslavia, Judge Theodor Meron, has been visiting Belgrade. B92's Ljubica Gojgic spoke to him.

B92: Judge Meron, you are the first president of the tribunal to pay an official visit to Serbia and Montenegro. Is this a change of policy at the Tribunal or is it an acknowledgment of the changes in the policy of Belgrade towards the ICTY?

Meron: The tribunal has always been, I think, whatever has been said about it, friendly and impartial, friendly to Serbia, friendly to all the people in the area. The change is that this is the first time ever that the government of Serbia–Montenegro has invited officially the president, indeed also the vice–president to visit the country. And I believe that this reflects a changing mood of co–operation, a much greater spirit of co–operation, improvement, progress… So we were happy to accept this invitation in order to acknowledge the positive developments that have been happening and promote more positive things yet to come.

B92: What do you expect from this trip to Belgrade?

Meron: Certainly, more progress on actual issues which are still on the agenda of cooperation and which have not been resolved. But I would like to do that in a spirit of cooperation and encouragement, not in the spirit of acrimony or confrontation, and I do believe that the time is right to move things forward.

B92: You will be meeting a number of state officials in Belgrade. The Serbian justice minister said you would discuss the possibility of transferring some cases to local courts. I assume this is part of the completion strategy for the Tribunal which you will define in the next few months.

Meron: The completion strategy – let me make it clear – is something that has been developed by my predecessor president Claude Jorda and endorsed by the Security Council on two occasions: in July 2002 and most recently in the last resolution adopted two weeks ago. It is also something that we are developing in cooperation with Lord Ashdown in Sarajevo because of the creation of credible war crimes chamber in Sarajevo which would be in compliance with international standards of human rights and due process. This is essential, it is an essential condition for us to transfer eventually some low–level cases for local trials.

Personally, I've always believed the trials in the area, war crimes trials in the area where crimes have been committed have the greatest resonance because they would then take place close to the victims, close to the people, and not thousands of miles away. But this objective, this goal, this target can only be achieved when those courts are courts about which I and my colleagues, and the Security Council would be confident that they are up to the international standards. We will not refer cases before we are quite sure that those international standards have been complied with.

Now, where the government of Serbia–Montenegro could be extremely helpful to the international community in making the completion strategy realistic and speedier is by more rapidly focusing on arresting those fugitives from justice whom we still do not have in custody. We will not go out of business before we have tried Karadzic and Mladic and let nobody think that we will go out of business before that, and that they can just sit us out. This will just not happen. The completion strategy – it is not a strategy for obtaining impunity from prosecution.

B92: Do you think it is realistic to expect all trials to be completed by 2008, and proceedings on appeals to end by 2010, as envisaged in the completion strategy, and what would happen to those indictees who are still waiting for their trials to begin and what about those who will be indicted by 2004?

Meron: Well, let me start from the last point. If they are going to have a trial here, it is going to be a fair trial, or no trial at all. I can assure you that we will not compromise this quality of justice. There are no quick trials. Is it realistic? This depends on lots of questions which are beyond judicial control. How many fugitives will be arrested? What will be the co–operation of the governments in the area in producing, giving the prosecutor maximum access to archives and documents? How many guilty pleas there will be? How many more indictments will the prosecutor submit? Will the fugitives arrive in time for us to enable us to hold joint trials? When they do not arrive at the same time, the tribunal sometimes – on the same indictment – may be forced to have two trials. And that, of course, slows down the process. So the answer to your question is that we will do our very best to comply with the target established by the United Nations Security Council and we'll do so without compromising due process. And it very much depends on the co–operation of the international community and, of course, this includes the government in Belgrade, the government in Zagreb, the government in Sarajevo…

B92: While in Belgrade you will give a lecture at the Centre for Human Rights about the challenges and problems of the ICTY. What are the problems and the challenges the Tribunal is facing?

Meron: Well, why don't you come to my lecture? I would not like to pre-empt it now, I'm going to have, I hope, fairly serious discussions of the sort of problems that have been involved in the creation of the tribunal as we are developing our jurisprudence and towards the completion of our mandate one day. I am very glad to have this opportunity to speak at the Belgrade Centre for Human Rights and, incidentally, I will also have an opportunity to meet with the representatives of the principal NGOs and see what problems are that they have.

B92: You have just made an official visit to Paris. How strong is the support and assistance the Tribunal receives from the international community today, ten years after it was established?

Meron: I think our support is very strong within the Security Council, among the permanent members of the Security Council, and my visit to Paris itself will be a reflection of that continuous support. I think that the international community has realised that we are very useful and very credible model of international justice, that our jurisprudence is something that in the future will be a model for courts such as the International Criminal Court, ICC, and others. I think the quality of justice that we dispense is something which is for any score of the humanitarian law a great example. I think that the support is as strong as ever, perhaps even stronger. And the reason for that is that there is general realization of how efficient and successful we have been, and how credible we have been as a model for dispensing international justice.

B92: There has been criticism that the Tribunal's work has gone on for too long, and that it has indicted too many suspects instead of focusing on the senior officials who are suspected of being most responsible for the wars in former Yugoslavia.

Meron: Perhaps, if we started all over again, the prosecutor perhaps would have tried to indict from the beginning more senior officials, but I don't believe that it's very useful to criticise the past because account must be taken of the fact that at that time, we had so little support from the governments in the area that we just couldn't get custody for people of any rank. It is a sign of our success that during the last few years we have been getting very senior, very prominent people. During our first year of existence, we could get Dusko Tadic! So how can we be criticised for the slow beginning? It was a slow and painful beginning, but we are now up to speed. I mean, who would have ever thought that this tribunal would have such principal leaders as Milosevic and he is just one of several very major figures. We are all learning from experience, but I think that here the problem was not so much with the tribunal or the policy pursued by any of the organs of the tribunal, including the prosecutor. I think that the problem has been such a lack of cooperation at the beginning. I am so happy to be able to say that today the situation is different.

B92: Are people like Dusko Tadic, the small fry, paying for the fact that at the time they were indicted no senior officials were available?

Meron: I don't think so. I'm quite sure that their trials were individual trials of the accused without regard to a wider policy. A judge sitting in judgement in front of the accused must think of that accused. And he must think of justice for that accused. And the accountability for that accused. I do not believe that anybody has been punished or given a longer sentence of imprisonment because he was one of the few defendants here. I don't think that's the case at all.

B92: I am sure that one of the questions you will be asked in Belgrade, perhaps by many of the people you are going to meet, is about the impartiality of the Tribunal. You've probably often heard the argument from Belgrade that the vast majority of indictees are Serbs, including the former president of Serbia, the prime minister, the deputy prime minister and the chief of the army general staff. On the other hand, almost no prominent figures from Croatia and Bosnia have been indicted, or put on trial. Could you comment on that?

Meron: Well, the arrests are not a judicial function. Indictments are not within the judicial function. Those questions, I think, would be more appropriate to address to the prosecutor madam Carla del Ponte. I think that the question from our perspective is: Have we been giving equal justice to whoever the person who's in the dock might be? And I am completely at ease and comfort in telling you that we are dispensing equal justice for everybody.

And again, surely the question who is before us is related to broader historical events and cooperation of the governments, but in any event I think that – on the indictments and who is here – it would be more appropriate to discuss with the prosecutor these questions pertaining to penal policy. I am personally confident that she pursues the same goal that we all have been pursuing. Namely, that the ethnicity or the religion of the person who's committed serious violations of international humanitarian law does not matter at all, that all those people who have been indicted, and they believe that the indictments have been issued on a broader scope, should be here, and be accounting for the acts that they have done. And I'm quite sure that the prosecutor is motivated by the same objective as all of us are.

B92: Judge Meron, your published works have served as a legal foundation for the international courts. As a US citizen and a former counsellor in the US State Department, how do you feel about your own country's reservations about International Criminal Court? The behaviour of the US on this issue seems to indicate that only small countries and nations are bound by international law.

Meron: I don't think that this is the question which I would like to go into. I am the president of ICTY, and I have enough problems with the ICTY without worrying about the ICC. But I think that the problems of accountability and American attitude to international justice are much more complex than you have presented them. I wish we found a way to achieve rapprochement between the ICC and the United States. The United States, historically, have been second to none in promoting international justice in general, starting from Nuremberg, ICTY, ICTR, but also Sierra Leone and Cambodia so the record is much more complex than the one you are suggesting, but this is not the subject which I would like… which would be proper for me to address as the president of the ICTY.

B92 : But as president of the ICTY, is it true that you are from time to time exposed to pressure from the US Administration to wrap up your mission more quickly, perhaps, than the prosecutors and your colleagues would?

Meron: Well, I am glad that you're asking me this question to answer. I have never, ever been exposed to any pressure from my government, and would I be exposed to any pressure from my government, I would tell them that I am an international judge elected by the United Nations General Assembly. I have been elected to presidency by my colleagues, the judges, and my objective is to serve this tribunal, and only this tribunal. In other words, to say that I would be more subject to pressure applied by the United States government because I am an American is something that is completely unacceptable.

B92: Finally, Judge Meron having served in the Tribunal since 2001 and as its president since February this year, do you believe that the ICTY sends a proper message to the region, and to the international community? Does the Tribunal serve as a solid foundation for the ICC and does it promote the idea of putting an end to the culture of impunity, which you have often mentioned?

Meron: Well, I think that my answer to that is the tribunal serves an essential role in the region itself by showing the victims of those terrible crimes that, in fact, some of the principal offenders will not go unpunished, that there is accountability, that it really presents an opportunity to put an end, in a some way, to this notion of impunity which has plagued the international community for such a long time. Between the ICC and Nuremberg, as you know, no international criminal courts have been created. Nobody did anything, for example, in the aftermath of the genocide in Cambodia. So here, for the first time since Nuremberg, the international community has established an international court, an international court with a statute which incorporates all the principal guarantees of human rights stated, for example, in the international covenant on civil and political rights.

I do believe that more cases we try, the more important our jurisprudence becomes, the more guilty pleas, in fact, we have which show the victims and their families that there is some kind of, at least, repentance on the part of those who have committed the crimes. The more we will accomplish the objective of not only ending the culture of impunity, but also promoting reconciliation in the region. As regards that other prong of your question – namely, what is the legacy and what is the kind of model we are building – I think it's a marvellous model of international justice. You know, we have this issue of not only very many judgements on substance by trial courts, and by the appeals chamber, but we have also developed an extremely complex, an extremely developed, sophisticated body of procedure alone which we have rendered in various procedural decisions that we have given, and the numbers now run into the hundreds.

There's no question that ICC, the International Criminal Court, will have the luxury of benefiting from something that we could not have benefited from. We had to start from scratch and even when we consider the Tadic case, or particularly if we consider the Tadic case, this case gave rise to some very, very seminal jurisprudence in international humanitarian and international criminal law which has, since then, become the basis, for example, for similar provisions in the statute of the Rome Treaty on the International Criminal Tribunal. The goal now is to make sure that we are not only a successful institution while we are alive and functioning, but that we eventually wind up our tribunal in such a way that our legacy would be at its very best. And there is, I want to assure you, that in this sort of sense that you have implied, there is no pressure on us, but yet I'm aware of the fact that not a single country nor the Security Council would like us, as an ad hoc tribunal, to be here forever, neither would we want to be here forever. We have the mission and the sooner we accomplish that mission which depends on the cooperation of the states in the region, the sooner we get the fugitives from justice, the sooner we get access to archives and documents, the sooner we'll be able to accomplish our task and go home with the feeling that we have done a good job.

B92: The rules of procedure and evidence have been changed more than a dozen times. Defence counsels say that different trial chambers hand down different sentences for more or less the same offences. And that is because the judges come from different judicial systems. And you have twice mentioned that guilty pleas are something that speeds up the procedure, whereas I have heard many of my journalist colleagues asking what sort of message the tribunal gives when there are so many plea bargains and when a person like Drazen Erdemovic, for example, who admitted to have killed a hundred people, is sentenced to five years' imprisonment and gets out after three years because he pleaded guilty and he agreed to testify in other cases?

Judge Meron: There has been an op-ed. piece recently in the NYT by someone who's victim in the sense that he lost many members of his family in Srebrenica. It was a very moving piece saying that from the guilty plea of a person who was involved in Srebrenica he got more comfort and more reassurance than he would have received from just mere sentence imposed on that person and the absence of guilty plea. That's because he saw in that guilty plea the beginning of remorse, the acknowledgement of responsibility, the acknowledgement of accountability. I think guilty pleas should not just be taken just in the technical sense but in the context of the fact that the accused comes to terms to what he has done, and then a broader purpose is being served. That procedure, therefore, has a significance going far beyond speeding up our process. It is very important to speed up our process because the less time people await trials, the more we serve the interests of justice, but the interests here are broader.

At the same time, I think that it is very important that the sentences that should be imposed were recognising agreements between the prosecutor and the defendant and should also reflect the gravity of the crime. And I think that this is something that we have to watch very, very carefully. Let us remember, however, that the imposition of the penalty is a judicial function and not to be determined simply by what has been agreed between the prosecutor and the perpetrator.

Also, I think that the fact that we have revised so many times the rules of procedure and evidence shows that we are pragmatic people, that we are trying to improve the score as we go along. When the tribunal was established, we did not have any rules of procedure and evidence. The ICC started differently. They had the time to have the assembly of participating states, then preparatory commission and so on to prepare all those subsidiary types of legislation. Here, this was a judge-written law. And, of course, they started from a scratch, they had to experiment. I think that when we see there is a problem where justice can be improved, when the process can be made more effective, of course, we amend the rule. Are we going simply to refuse to do that because we adopted that rule earlier. It would make no sense. What is interesting is that we are learning from experience, that we have been moving much more in the direction of reconciliation between the civil law and the common law. As a result of that, our rules of procedure and our rules of evidence are becoming ever better and more credible.

Theodor Meron
(United States of America)

Judge Theodor Meron was born in Poland on 28 April 1930 and became a citizen of the United States in 1984. Prior to that he was Israel’s Ambassador to Canada and later to the United Nations in Geneva. He studied law at the Universities of Jerusalem, Harvard and Cambridge.

From 1978 he was Professor of International Law at New York University School of Law. Between 1991 and 1995 he was Professor of International Law at the Graduate Institute of International Studies in Geneva and has lectured in several other universities in Europe and the US.

He is a leading scholar of international criminal and humanitarian law apart and was Editor-in-Chief of the American Journal of International Law (1993-1998) and a member of the Board of Editors of the Yearbook of International Humanitarian Law. He is a member of French and American International Law Societies and serves in several international humanitarian law committees. He was a member of the US delegation to the 1998 Diplomatic Conference on the establishment of the International Criminal Court in Rome, Italy. He was also Counsellor on International Law to the US Department of State. He was elected as a judge of the ICTY on 14 March 2001 and designated as a member of the Appeals Chamber of the ICTY and ICTR on 23 November 2001.

B92, 2003