Mr. Hans Holthuis's speech

19 May 2001 in Belgrade.

 “It is an honour for me to be here as a speaker at this conference on “Truth and Responsibility” and to participate in your discussion on how those notions can pave the way towards a democratic future. It is a topic about which people in general should be talking more often, and this holds especially true for people who live in parts of the world where strife and conflict are recent, like your country.

Before I start, I would like to commend the organisers for the vision they have demonstrated by organising this gathering. It is quite a feat to bring together so many different experts from various parts of the world and from so many different institutions, both national and international, to talk about the past as a way to get to the future. The fact that this conference is being held so soon after the remarkable changes which the Federal Republic of Yugoslavia has undergone in the past months makes the very fact of this gathering even more remarkable.

Exellencies, Ladies and Gentlemen, we all know that the concept of “Truth” is a scarce commodity, one of the reasons being that there are so many facets to it. One may perhaps liken it to a cloud: from afar, a single, clear and visible form, but, as one gets closer, something so nebulous that it can not be physically touched, held, and understood except through the each of the many individual drops of water of which it is made up. Those drops are the particles we seek, for only they can help us understand the cloud as a whole.

What then, can be said about Veran Mati}’s statement in the editorial comment which was included in the invitation to the conference, that  “the truth is essential if we wish to confront the past and the future”?

As I understand it, that is where the notion of “Responsibility” comes into the picture. “Responsibility” is based on “Truth”, or, if I may follow the metaphor of the cloud through, on the each of the different drops of water which make up the cloud. Those drops are the groups of people, individuals, forces, or events, which have caused the “Truth” that constitutes the past. And, indeed, if history has taught us anything, it would be that it is that past which holds the key to the future. As others have indicated today, knowing what happened ends uncertainty, answers questions, allows books to be closed, and enables people to take steps which may make it possible to prevent past errors.

So much for amateur philosophy. What does all this have to do with the International Tribunal?

In the context of the important questions that are being asked at this conference it is important to understand which particle of “Truth” the Tribunal has been tasked to seek, and to which “Responsibility” that particle can be linked. That, in turn, will enable us to understand where the Tribunal’s prerogatives lie. Knowing and understanding those prerogatives may help us envisage where other devices seeking other facets of “Truth” are conceivable.

The 15 Member States of the Security Council which voted with unprecedented broad support and on behalf of the international community as a whole, to establish the International Tribunal, made a number of determinations in the resolution 827 (1993).

Firstly, it was determined that “continuing reports” (there was no final determination of fact yet) of widespread and flagrant violations of international humanitarian law in the territory of the former Yugoslavia constituted “a threat to international peace and security”.  That determination, an obvious one to make at the time, made it possible for the Security Council to utilise its so-called compulsory Chapter VII powers, powers which, as we all know, allow the Council to overstep the traditional boundaries of State sovereignty.

Secondly, it was determined by the Security Council that the persons - not States, not groups of persons, but persons - responsible for such reported crimes must be brought to book.

Thirdly, the Council decided that holding the perpetrators accountable must be done though a criminal legal process.

Finally, the Security Council determined (the exact words used are that it was “convinced”) that this judicial process would contribute to “the restoration and maintenance of peace”.

In the more eloquent words of the Tribunal’s judges in the Tadi} case (“Appeal on jurisdiction” (2 October 1995)): The Security Council […] resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.

 The search for individualised criminal justice thus commissioned the search for a very specific particle of the cloud alluded to before.

By focusing on individual responsibility, the founders of the Tribunal wished to prevent the stigmatisation of a whole national, ethnic or religious group and to neutralise those persons who sustain the climate of hatred and nationalism which caused the terrible chaos. By making individuals responsible, the international community hoped deter others from taking that same road.

In opting for a criminal process as the tool to deal with these issues, the international community also made certain choices.

First and foremost, the criminal process is a judicial process, determined by written rules of law which prescribe the course it must take. Much like a train, it follows a track and a time-table, from which departure is difficult. It is no different for the International Tribunal. The Member States of the Security Council gave it a Statute which determines its jurisdiction, organisational structure and powers.

Another feature of the criminal process is that, by its very nature, it is a process which is accompanied by a degree of coercion. Judgements are binding, arrests can be ordered and witnesses can be summoned. Again, it is no different for the Tribunal. Based on its Statute and Rules of Procedure and Evidence binding requests can be made to States to have individuals arrested, detained and transferred to the seat of the Tribunal, premises can be entered and searched, witnesses can be summoned, and, provided a pre-set burden of proof has been met, an accused can be sentenced to jail.

Within the framework of those prescribed rules, and with the help of its enforcement powers, the essence of the criminal process is that it seeks to determine a judicial truth with a high burden of proof: can it be concluded beyond reasonable doubt that the crime as defined in the indictment was committed and that accused was responsible for it?

Nothing of what I have just said about the essentials of the criminal process will strike you as new, and perhaps one may even be so bold as to say that, from that point of view, the International Tribunal is nothing new. It is just another criminal court.

Having said that, I will immediately contradict myself. The acts brought under what is quickly developing into a fully mature branch of law, namely international criminal law, do make the International Tribunal a special type of criminal court. Here, we are talking about acts which have been well-described in Israel v. Eichmann (36 International Law Reports 277) as: acts which damage vital international interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilised nations.

 It is obvious that international criminal law as a way to define, and international criminal courts as a way to deal with such acts, are no longer an aspiration for the future but very much a thing of the present. In this connection, one can no longer view the International Tribunal as an isolated incident. It part of a much wider development, involving the International Criminal Court, and the special courts which are being set up in Cambodia, East Timor, and Sierra Leone.

The nature of the acts which have been brought under the jurisdiction of the International Tribunal also determine its relationship with national criminal courts. While it was envisioned that national courts would work in concert with the Tribunal in dealing with serious violations of international humanitarian law, and would so become part of the machinery which was set up to deal with these acts, that concurrent jurisdiction was made subject to the primacy of the International Tribunal. The Appeals Chamber of the Tribunal concisely set out in the Jurisdiction Decision of 2 October 1995 why this is so:Otherwise, human nature being what it is, there would be a perennial danger of international crimes being characterised as "ordinary crimes" […] or proceedings being "designed to shield the accused", or cases not being diligently prosecuted […]. If not effectively countered by the principle of primacy, any one of those stratagems might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute.

Going back to the cloud of truth that we are discussing today, I believe it is now possible to picture those particles of the cloud which are the exclusive realm the International Tribunal and to understand why this is so.

The starting point must be the acts over which the International Tribunal has been granted jurisdiction. It is these heinous acts which pushed the international community in 1993, and, I may add, on previous occasions in human history, to set up an institution which is both international judicial, and which pronounces itself on individual perpetrators.

Those international and judicial components are reflected in the constituent act establishing the Tribunal, binding on all UN Member States, with solid and undisputed legal roots in the Charter of the United Nations. That constituent act set up a criminal court, and nothing else. It lays clear foundations for the binding powers - both investigative and judicial - bestowed upon the Tribunal. The binding powers to request the handing over of information, to summon witnesses, to demand the arrest and transfer of indicted persons, are, in and of themselves, nothing unusual for the criminal process, despite assertions to the contrary of some.

These tools are the tools which the International Criminal Tribunal for the former Yugoslavia can use to find what international criminal law as it has been defined today owes to the multitude of victims of the conflict which has ravaged the territory of what used to be the Socialist Federal Republic of Yugoslavia: “Truth” and “Responsibility” to pave the way for understanding and reconciliation.

Having a criminal process in place to deal with those serious violations of international humanitarian law means that truth-seeking mechanisms, which work against the very principles upon which that criminal process is based, must be avoided. In that sense, the international arena is no different from the national one. Projects, which aim to bring down the murder rates in run-down neighbourhoods by forging a sense of community and enhancing mutual respect between the ethnic groups which live in that neighbourhood, have a very important role in society, but such projects cannot start bypassing the criminal justice system, by, for instance decriminalising violent crime or granting forgiveness upon confession.

Similarly, a reconciliation process which is set up to understand a past conflict cannot start by declaring an amnesty for all indicted war criminals or those which may, in the future, have to be held accountable for serious violations of humanitarian law, either by the Tribunal or by the national courts. Persons who have taken part in mechanisms to help understand the past should not be rendered, by law or otherwise, unusable as witnesses in the criminal justice system which deals with war crimes. National initiatives to understand the past should not become an impediment to the flow of information to feed the criminal process.

I hope that what I have just set out not only clarifies what should remain within the exclusive realm of the International Tribunal and the criminal process it has been mandated to complete, but that it also brings to light the limitations of what the Tribunal can do for reconciliation, and the vast open space where other initiatives are essential to help build a democratic and stable future.

The criminal judicial process may be compared with a precision surgical instrument, designed and aimed to work only in respect of parts of the body and in respect of certain ailments. As we all know, there is a great need, and a lot of room for further healing once the surgical wound has been stitched up and closed. But those further healing processes should not re-open the wound and negate the painstaking work of the surgeon.

National initiatives for reconciliation and understanding the past can be, and should be complementary to the work of the International Tribunal.

This should work as a two-way street. Arresting indicted criminals and transferring them to the seat of the Tribunal is, in my view, an act of truth seeking, and therefore, in the end, reconciliation in itself. Much the same applies to all initiatives that help create a climate in which the International Tribunal and its work are understood, because that will encourage more witnesses to come forward to tell their story. By helping the Tribunal find the particle of “Truth” it was tasked to find, thus enabling it to determine whether that “Truth” can be linked to a “Responsibility”, uncertainty can be ended, questions can be answered, books can be closed, and a society can be assisted in the wider reflective process of learning from the past. At the same time, it can be envisaged that data which has been gathered by the Tribunal and the judicial determinations it has reached in the course of the criminal process should become part of national truth-seeking initiatives.

Conferences such as these, and the many other initiatives in which B-92 has been involved, are perfect examples of complementary work between the International Tribunal and other initiatives which seek truth and understanding.

 To borrow words from the Tribunal’s Appeals Chamber in the Tadi} case one last time: one cannot but rejoice at the thought that, universal jurisdiction being nowadays acknowledged in the case of international crimes, a person suspected of such offences may finally be brought before an international judicial body for a dispassionate consideration of his indictment by impartial, independent and disinterested judges coming, as it happens here, from all continents of the world.

 It is from that point, taking into account the specific tasks assigned to the International Tribunal, that national initiatives must depart. It is from that point that national initiatives are pivotal if the patient is ever to fully recover his health.”