Mr. Hans Holthuis's
19 May 2001 in Belgrade.
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
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
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
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
Thirdly, the Council decided that holding
the perpetrators accountable must be done though a criminal
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
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
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
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
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.”