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Panel: "Role of war crimes trials in truth-telling"
Dear colleagues, Ladies and Gentlemen,
First of all, I would like to thank the organisers together with the sponsors of this conference for their continuous and noble effort on the subject of war crimes and related matters. Allow me to go straight to the point of this panel.
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In general terms, notions like justice and truth are simply said and understood, but they are not easily achieved in practice and to everyone's satisfaction. With the Tribunal's clearly defined mandate, limitations in resources, timeline and co-operation of states - it is inconceivable to satisfy every specific interest, whether national or individual. Our task is to do our best in
establishing facts about crimes and bringing a measure of justice to the victims and peoples of the former Yugoslavia.
Responding to the critics, including here in Croatia, who even now continue to dispute even the jurisdictional basis of the ICTY, I can proudly say that the Tribunal has achieved remarkable results. The UN Security Council, in its wisdom and knowledge of international law, mandated ICTY to deal only with the individual criminal responsibility. Presidents, prime ministers,
ministers, senior military and police commanders, paramilitary leaders, public figures were indicted and brought before the international Judges. Without any shred of a doubt the most serious and most emblematic crimes committed during the conflicts in the former Yugoslavia have been addressed, and are being addressed in the courtrooms in The Hague.
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This leads me to the main point of discussion today - the role of the war crimes prosecutions in establishing the truth. In the process of achieving this goal the prosecution is representing the victims of the crimes and therefore is primarily responsible for bringing to the courts' and public's attention truthful testimonies. Not all perpetrators are brought to justice, as not all
evidence is always available and there is no possibility - physically or in time - to bring all the willing witnesses to take stand. Therefore, even a proper judicial process, as the one in The Hague, might not be enough for the thousands of victims. This conference, following the one in Sarajevo, is looking further into different ways to address the issue of establishing and telling
the truth in the aftermath of the conflicts.
The debate on the conflicts and war crimes committed in the former Yugoslavia has only somewhat subsided. It is still present in the daily life and media. It is often politicized, as it usually addresses the war crimes issues through the political glasses, - not through the perspective of the victims. These debates often mix the notions of truth with establishing facts. Truth can
be a very complex and very subjective issue based only loosely on facts, and it could easily be seen differently by two sides or individuals. Facts, on the other hand, are indisputable.
A judicial process like war crimes prosecutions, with all the checks and tests involved, can answer serious questions and can establish facts beyond reasonable doubt. By establishing these facts criminal prosecutions contribute to a clear understanding of the crimes committed and a fair understanding of the context of the conflicts. Prosecution is required to adduce evidence on the
nature of the armed conflicts - internal or international, and by that to place criminal charges in the right legal framework.
Politicians, historians, anybody in position to argue will likely continue endless discussions about the nature of the conflicts, placing political and historical definitions above human dimension, human suffering and individual responsibility. Contrary to that, criminal prosecution is targeting exactly the human dimension of each criminal offence - the perpetrators and the
victims. Major prosecutions generate a comprehensive record of past violations.
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The courtroom testimonies of eyewitnesses are fundamentally important - they tell us about the horrifying conditions of the detention camps, ethnic cleansing campaigns, torture, rape and sexual slavery, mass executions, destruction of property and religious institutions, plunder and looting. Most importantly they tell us about human suffering. They must be told and listened to.
They put the picture about the conflicts burdened by ethnic hatred in the right perspective. They tell us what happened in a particular village, town, barrack, and farm. Their personalized stories make us feel how it was to be there - in that particular place at that particular time - be it Ovèara or Vukovar, Ahmići or Stupni Do, Medak pocket, Potoèari or Bratunac, Foèa or Višegrad,
Mostar or Grabovica, Sarajevo or Dubrovnik, Suva Reka or Djakovica.
Those willing to listen will understand that the testimonies of the very modest, not sophisticated people, very ordinary people can bring to understanding of the core issues. As it was, for instance, with many so called crime base witnesses, often very simple farmers from Kosovo, who had to face the late Milosevic in court. There is more in these stories of personal tragedy and
suffering than catches the eye at first. They pointedly lead to a conclusion that not only soldiers, policemen or some paramilitaries are responsible for the massive crimes, but also those who were in charge, who fuelled the conflicts using all available official, unofficial and propaganda tools. Those willing to hear will understand from these courtroom accounts that those who
ordered and commanded operations and campaigns which led to massive atrocities and suffering - must be held responsible.
While we can establish facts and a credible version of truth about the events from the past - we cannot establish all truth and all facts. Therefore, we must endeavour to establish the main facts and resolve the most essential developments of criminal nature. For instance, we have established in great details what happened in Ovèara, in Srebrenica, in Sarajevo, in Foèa. But we can
only assist people in understanding what happened to them and why. The extent of the crimes committed is so great, the cruelty so grotesque - that it is impossible to comprehend and cure through the process of war crimes trials only.
Obviously, the results of the judicial process, its record and established facts are a crucial part of efforts to establish the truth, face the past and embrace reconciliation. Crimes leave traces, no crime is without a trace. Investigating complex crimes require more than just eye witnesses and their testimonies. Very often no eye witnesses are left. The prosecution in The Hague
was lucky to find just a handful of survivors of the mass executions (like in Ovèara and Srebrenica). But the traces of terrible crimes are still possible to find, not only in the memories of people. The murderers themselves, for reasons known only to them, leave evidence of the crimes, like video tapes of executions in Trnovo by Scorpions or in Brèko by Goran Jelisić.
Another important way of reaching the truth through trials - is to achieve guilty pleas whenever it is possible. There were so far 20 guilty pleas before the ICTY, including those of Biljana Plavšić, Milan Babić, several accused for Srebrenica, Miroslav Bralo and others. Guilty pleas maybe considered being as close as possible to the truth telling from the perpetrator's point of
view. They are indeed very important - despite the fact they are often seen by the victims as something unacceptable. But they have great value, as first of all they confirm the commission of the crime, they do reflect remorse and guilt, though not always in genuine manner. And most importantly, they do provide information which the victims could not have known - for instance, about
the planning and organized manner of the crime and cover up. The guilty pleas also allow us to avoid numerous calls for the victims-witnesses to testify and be exposed to the trauma of facing the perpetrator. Closest to the truth telling as it may be, the perpetrator's story provides the essence of the intent to commit crimes, clarity of the context and chain of command.
In addition to witnesses the prosecutions bring into the courtrooms massive documentary evidence as a result of complex research and analysis. Various documentary collections are exposed in order to establish, for instance, the chain of command structures, formal and informal. As even military structures are not always clear, not to speak about various paramilitary groups, often
established illegally by the secret services or interested criminal groups. However, traces are still left and could be found in different administrative or financial record, official records, correspondence, and personnel files. The intercepts of different communications during the war, where everybody was listening to everybody else, if at all accessible and available, also
represents a source of truly valuable and often shocking information, as cynical remarks/ exchanges of the accused between themselves.
Such documents, though not stories of eye witnesses and without blood stains on them, very often tell us more than an individual witness. They tell us how the war efforts were organized and sustained as well as who was in charge, how the illegal plans were concocted and disguised - all in the service of a specific policy.
Just an example here. You may wonder why my office is so keen to have access to the personnel file and full record for Ratko Mladić? Because the file can speak for itself and show that Ratko Mladić was not an outcast, not a lunatic who went on a rampage in Bosnia to fulfil his crazy ideas. No. He was a senior officer of the Yugoslav army on duty in Bosnia as commander of VRS; he
was promoted twice during the war with highest marks in his dossier, the full approval of the Belgrade military and political leadership and with very generous remuneration. If, for a moment, you combine this with the facts from the ground, known to the whole world, and reported to Belgrade - you have the fact established beyond any doubt - and that is that Belgrade was directly
involved in the war in Bosnia. And later? Belgrade organized comfortable hiding places for Ratko Mladić in Serbia, so he can evade international justice. And where he is now? He is still in Serbia. Nothing was done to stop Mladić or his associates; nothing was done to punish him or his associates.
There are other interesting examples of the documents which can speak for themselves. Here in Croatia, for instance, we have truly remarkable documents, such as the transcripts of the meetings from the office of the late President Franjo Tudjman. Official meetings were recorded very diligently and accurately and therefore represent an authentic and powerful account of the thinking
and planning of the leadership. At the same time - you should not have any illusions - there are still missing archives and documents: for example, in Serbia the authorities still cannot find where the Milošević archive has disappeared; strangely enough the war time archive of Karad¾ić (President of Republika Srpska) has also disappeared without a trace. What a coincidence!
In searching for the truth it is certain that much more has to be done, and many more perpetrators must be brought to justice for the war crimes. We are yet to see the kind of collective search for the truth when we will be able to see soldier(s) coming out and admitting the crime by saying 'it was me, not my unit'; or a commander of the unit saying - 'I was responsible, these were
my people, I ordered them to do it, I knew what happened but looked the other way'; or a politician admitting the knowledge of the crimes and failure to speak out or seek punishment for perpetrators. When we see that, we will be definitely much closer the truth about the war. In the words of the British philosopher and mathematician Bertrand Russell (1872-1970), "war does not
determine who is right, only who is left."
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In conclusion I would like to repeat - the Tribunal is your partner in the search for the truth. We are concentrated now on achieving successful "finale" of the Tribunal's mandate in partnership with the national judicial and prosecutorial authorities. We are working together, with the same goal, and will continue to share our experience and whenever possible and applicable - our
evidence. The challenges remain serious.
Thank you.
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