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Security Council 3175th Meeting PM SUMMARY SC/5558 22 February 1993
Resolution 808 (1993) Asks Secretary-General to Report, Before 60 Days, on Proposals for Establishment and Operation of Tribunal
The Security Council this afternoon decided "that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991".
The Council took the action by adopting unanimously resolution 808 (1993) by which it also requested the Secretary-General to submit a report on all aspects of the matter, including specific proposals for the organization and operation of such a tribunal. The report is to be submitted at the earliest, but not later than 60 days from today, if possible.
The Secretary-General was also requested to take account of suggestions put forward by Member States on the establishment of the tribunal. France, Italy and the Conference on Security and Cooperation in Europe (CSCE) have put forward proposals for the statute, composition and rules of procedure of such an international tribunal. The Security Council has already set up a Commission of Experts to collect and investigate evidence of war crimes committed by all parties in the former Yugoslavia. An interim report of the Commission was before the Council today.
In the debate on the issue, several Council members pointed out that it was the first time the United Nations was to establish an international criminal court with the jurisdiction to prosecute crimes committed during armed conflict. They believed that it was a logical outcome of the Council's mandate to maintain international peace and security. Jean-Bernard Merimee (France) said that another resolution of the Security Council, acting under Chapter VII of the Charter, would be necessary to actually establish the tribunal, once all operational and legal details had been worked out.
Juan Antonio Ya9ez-Barnuevo (Spain) said the establishment of the tribunal was a necessary but ad hoc measure, limited to the prosecution of war crimes committed in the territory of the former Yugoslavia. A longer-term solution would be the establishment of a permanent international criminal court with universal jurisdiction that would prosecute all grave breaches of international law. The International Law Commission was currently drafting the statute for such an international criminal court.Other statements this afternoon were made by the representatives of Brazil, China, United States, United Kingdom, Russian Federation, Venezuela, Hungary, New Zealand and Morocco.
(A MORE DETAILED ACCOUNT OF THE MEETING APPEARS IN TAKES 1-10 OF THIS RELEASE)
The Security Council meets this afternoon to consider the question of establishing a war crimes tribunal to prosecute crimes committed in the territory of the former Yugoslavia.(END OF TAKE 1)For its consideration, the Council has before it an interim report of the Commission of Experts established by its resolution 780 (1992) to investigate grave breaches of the 1949 Geneva Conventions and other violations of international humanitarian law in that region. It also has the results of two national studies, conducted by France and Italy, respectively, on the establishment of such an international tribunal. A third proposal has been presented by Sweden on behalf of the Conference on Security and Cooperation in Europe (CSCE).
The interim report of the Commission of Experts (document S/25274) provides an overview of the Commission's work to date, its preliminary conclusions on the evidence examined, its views on certain legal issues, and describes a plan of work for the next stage of its activities. The report states that the five-member Expert Commission had received several thousand pages of documentation as well as video information on allegations of grave breaches of the Geneva Conventions and international humanitarian law. The Commission had, therefore, undertaken the preparation of database designed to provide a comprehensive, consistent and manageable record of all reported crimes.
In response to urgent and repeated calls, in particular from Cyrus Vance, Co-Chairman of the Steering Committee of the International Conference on the Former Yugoslavia, the Commission had arranged for an immediate investigation by a team of forensic experts of the mass grave of Ovcara, near Vukovar, in the United Nations Protected Area Sector East in Croatia. The preliminary conclusions of that investigation reveal that a mass execution took place at that site, probably of the patients and medical staff of Vukovar Hospital who disappeared during the evacuation of that hospital on 20 November 1991.
In its report, the Commission states its intention to further investigate mass killings and destruction of property in the Vukovar area and to conduct on-site investigations into the treatment of prisoners at two or more camps in Bosnia and Herzegovina. It will also study all available reports on systematic sexual assault and "ethnic cleansing". Finally, it intends to complete the database on alleged violations as soon as possible since that alone could provide the foundation for the formulation of conclusions on the evidence.
The Secretary-General, in a covering note to the report, states that he will set in motion the establishment of a trust fund to enable the Commission to continue its work.
The national and regional proposals for the establishment of the tribunal (documents S/25266, S/25300 and S/25307) deal with such issues as the jurisdiction of the tribunal, and its statute, composition and rules of procedure. Each study also details the types of crime that the tribunal can investigate, as well as the manner in which the investigation of alleged crimes and their prosecution will be conducted. Penal sanctions and the means for enforcement are also discussed as are possibilities for appeal.
All three studies agree that it would be feasible from a legal point of view to establish an international war crimes tribunal for the former Yugoslavia, given the necessary political will to do so. The French study recommends that the most appropriate mode of establishment of the tribunal would be a resolution of the Council, acting under Chapter VII of the Charter. The CSCE recommendation is that, in view of the urgency of the situation in certain areas, the adjudication of cases concerning war crimes and crimes against humanity should be dealt with by an ad hoc tribunal and should not wait for the elaboration of a draft statute for an international criminal court entrusted to the International Law Commission.
The Council has before it a draft resolution (document S/25314), which reads as follows:
"The Security Council,
"Reaffirming its resolution 713 (1991) of 25 September 1991 and all subsequent relevant resolutions,
"Recalling paragraph 10 of its resolution 764 (1992) of 13 July 1992, in which it reaffirmed that all parties are bound to comply with the obligations under international humanitarian law and in particular the Geneva Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Conventions are individually responsible in respect of such breaches,
"Recalling also its resolution 771 (1992) of 13 August 1992, in which, inter alia, it demanded that all parties and others concerned in the former Yugoslavia, and all military forces in Bosnia and Herzegovina, immediately cease and desist from all breaches of international humanitarian law,
"Recalling further its resolution 780 (1992) of 6 October 1992, in which it requested the Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse the information submitted pursuant to resolutions 771 (1992) and 780 (1992), together with such further information as the Commission of Experts may obtain, with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia,
"Having considered the interim report of the Commission of Experts established by resolution 780 (1992) (S/25274), in which the Commission observed that a decision to establish an ad hoc international tribunal in relation to events in the territory of the former Yugoslavia would be consistent with the direction of its work,
"Expressing once again its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of "ethnic cleansing",
"Determining that this situation constitutes a threat to international peace and security,
"Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,
"Convinced that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and the maintenace of peace,
"Noting in this regard the recommendation by the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia for the establishment of such a tribunal (S/25221),
"Noting also with grave concern the "report of the European Community investigative mission into the treatment of Muslim women in the former Yugoslavia (S/25240, annex I)",
"Noting further the report of the committee of jurists submitted by France (S/25266), the report of the commission of jurists submitted by Italy (S/25300) and the report transmitted by the Permanent Representative of Sweden, on behalf of the Chairman-in-Office of the participating States in the Conference on Security and Cooperation in Europe (CSCE) (S/25307),
1. " Decides that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991;
2. " Requests the Secretary-General to submit for consideration by the Council at the earliest possible date, and if possible no later than 60 days after the adoption of the present resolution, a report on all aspects of this matter, including specific proposals and where appropriate options for the effective and expeditious implementation of the decision contained in paragraph 1 above, taking into account suggestions put forward in this regard by Member States;
3. " Decides to remain actively seized of the matter."
(END OF TAKE 2)
The President of the Council, AHMED SNOUSSI (Morocco), called the meeting to order at 12:05 p.m.(END OF TAKE 3)The PRESIDENT informed Council members that he had received requests from Bosnia and Herzegovina and Croatia to be invited to participate in the Council's deliberations on the subject.
The Council then invited those representatives to participate in the debate, without the right to vote, in conformity with the relevant provisions of the Charter and rule 37 of the Council's provisional rules of procedure.
The PRESIDENT said the Council was meeting in accordance with the understanding reached in its prior consultations.
He said members of the Council had before them the following documents: a letter dated 10 February from the Permanent Representative of France addressed to the Secretary-General (document S/25266); a letter dated 16 February from the Permanent Representative of Italy addressed to the Secretary-General (document S/25300); and a letter dated 18 February from the Permanent Representative of Sweden addressed to the Secretary-General (document S/25307). Members of the Council also had before them a report of the Secretary-General on the activities of the International Conference on the Former Yugoslavia (document S/25221); a letter dated 9 February from the Secretary-General addressed to the President of the Security Council (document S/25274); and a letter dated 2 February from the Permanent Representative of Denmark addressed to the Secretary-General, (document S/25240).
Members of the Council also had before them the text of a draft resolution prepared in the course of the Council's prior consultations, (document S/25314).
Speaking before action on the draft resolution before the Council, LUIZ AUGUSTO DE ARAUJO CASTRO (Brazil) said the serious violations of international humanitarian law in the former Yugoslavia had outraged the conscience of humanity. The Brazilian Government and society at large had received the repeated news of unspeakable atrocities committed, within the context of the senseless conflict on European soil, with deep sorrow and concern. Those atrocities must end.
The information gathered by the Commission of Experts established under Security Council resolution 780 (1992), as well as by the Special Rapporteur of the Commission on Human Rights, had provided substantial evidence of grave breaches of humanitarian law on a mass scale and in a systematic fashion. It included reports of mass killings, torture, rape and the unacceptable practices referred to by the equally unacceptable expression "ethnic cleansing". The international community could not allow that to continue or to go unpunished, he said. Those grave breaches of the most elementary norms of humanity must be treated as what they in fact were: criminal acts -- crimes against women and children and other defenceless victims, but also, in the most proper sense of the expression, crimes against humanity.
Continuing, Mr. ARAUJO CASTRO (Brazil) said his country favoured strong action to ascertain the truth about each of the cases of war crimes and crimes against humanity. Brazil supported the establishment of an international criminal tribunal to bring to justice the individuals found to be responsible for such abominable acts. It was in that spirit that Brazil would vote in favour of the draft resolution before the Council.(END OF TAKE 4)It would contribute to the work to be carried out by the Secretary-General in elaborating specific proposals and options for the implementation of the decision to be taken today, he said.
It was of particular importance that the international tribunal to be established rest on a solid legal foundation, to ensure the effectiveness of its actions, he went on to say. To that end, Brazil believed that in dealing with many of the issues at hand use should be made of the studies and discussions undertaken within the United Nations on the exceedingly complex legal question of an international criminal jurisdiction.
As regards the definition of the best method for the establishment of an ad hoc international criminal tribunal, he said it should be borne in mind that the authority of the Security Council was not self-constituted, but originated from a delegation of powers by the whole membership of the Organization. He recalled that the Council, in the exercise of its responsibilities, had acted in accordance with Article 24.1 of the Charter.
Just as the authority of the Council did not spring from the Council itself, but derived from the fact that certain responsibilities had been conferred upon it by all the Members of the United Nations, he said, the powers of the Council could not be created, re-created or reinterpreted creatively by decisions of the Council itself. It must be based invariably on specific Charter provisions.
Because the Council exercised a delegated responsibility, in a field as politically sensitive as the maintenance of international peace and security, the task of interpreting its competences called for extreme caution, in particular when invoking language of Chapter VII of the Charter, he stated. With the Council being called upon increasingly to fully exercise the considerable powers entrusted to it, the definition of such powers must be construed strictly on the basis of the text of the relevant Charter provisions. To go beyond that would be legally inconsistent and politically unwise.
He said the Security Council could, and should, play a strong and positive role in promoting the implementation of the various elements that would contribute to the peace efforts developed by the International Conference on the Former Yugoslavia. That role, however, could and should remain within the scope of the powers expressly granted to the Security Council in accordance with the Charter. Brazil considered it increasingly important that the rule of law in international relations must be promoted through ensuring strict respect for the provisions of the Charter and other norms of international law.
CHEN JIAN (China) said he would support the draft resolution. However, China's participation did not prejudge its position on future Security Council actions on the same subject.(END OF TAKE 5)The Council then adopted, unanimously, the draft resolution on the establishment of an international tribunal as resolution 808 (1993).
Speaking after the vote, JEAN-BERNARD MERIMEE (France) said the world was once again reliving the horrors of a past era. But times had changed. The United Nations now had the responsibility of maintaining international peace and security and had firmly committed itself to that in the territory of the former Yugoslavia.
The atrocities committed by all parties to the conflict in the former Yugoslavia had created an intolerable situation that jeopardized international peace and security, he said. It was imperative that those responsible for such acts be duly prosecuted if justice was to be done for the victims of those crimes. It was also necessary to send a clear message that those responsible for such crimes would be duly punished. It was also the responsibility of the United Nations, and in particular the Security Council, to prosecute those responsible in the exercise of its mandate to maintain international peace and security.
The study prepared by the group of French jurists, containing precise proposals for the establishment of the tribunal, had been concluded in three weeks, he said. The study recommended, in particular, that the creation of an international tribunal for the former Yugoslavia could come through a Security Council resolution, under Chapter VII of the Charter. He supported that recommendation and, accordingly, had proposed a draft resolution on that issue to Council members. In adopting unanimously resolution 808, the Security Council had taken a decision of great historical significance, as it had decided to establish a mechanism with an international penal jurisdiction with the competence to judge the perpetrators of gross violations of international humanitarian law.
Those atrocities took many forms, including "ethnic cleansing", systematic rapes and other violence against women, as well as widespread massacres, he said. Those crimes were committed in many parts of the former Yugoslavia. The Security Council, by acting today, had solemnly declared its intention not to allow such crimes to go unpunished, and had declared that it would not allow such atrocities to continue.
The international tribunal envisaged in the resolution should be created as soon as possible, he said. It would require another decision of the Council, acting under Chapter VII of the Charter, to actually establish a tribunal. He was confident that the Secretary-General, who had been requested to study the practical aspects of establishing such a tribunal, would do so expeditiously.
He hoped the Council would then act with authority and unanimity, establish the tribunal and impose respect for the law.
MADELEINE K. ALBRIGHT (United States) said the Nuremberg principles had been reaffirmed. The Council had preserved the long-neglected compact made by the community of civilized nations 48 years ago in San Francisco: to create the United Nations and enforce the Nuremberg principles. The lesson that all States were accountable to international law might have finally taken hold in their collective memory.(END OF TAKE 6)The proposed tribunal would not be a victors' tribunal, she said; the only victor would be the truth. And unlike the world of the 1940s, international humanitarian law today was codified, well understood, agreed upon and enforceable. The debates over the state of international law that so encumbered the Nuremberg trials would not burden the present one.
She said the United States strongly supported the Council's adoption of today's historic resolution, which took the first step in establishing an ad hoc tribunal to prosecute persons accused of war crimes and other serious violations of international humanitarian law in the former Yugoslavia. Virtually all who had examined the issue -- including the General Assembly, the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia and the Commission of Experts established by Security Council resolution 780 (1992) -- had urged the creation of such a tribunal.
United States President Bill Clinton had long supported the establishment of a war crimes tribunal at the United Nations to bring justice and deter further atrocities in the former Yugoslavia, she said. Just 12 days ago, United States Secretary of State Warren Christopher, speaking on the President's behalf, had explained why the United States believed this and other actions were urgently required. Mr. Christopher had also explained that there was another reason why urgent action was required, that there was a broader imperative here. The world's response to the violence in the former Yugoslavia was an early and concrete test of how the Council would address the concerns of the ethnic and religious minorities in the post-cold-war world.
The United States had so far submitted five reports to the Council pursuant to resolution 771 (1992), she waid, which contained substantiated information about the atrocities that had taken place in the former Yugoslavia. The Council's action today had begun the process of establishing a war crimes tribunal. Her Government looked forward to working with the Secretary-General to expeditiously accomplish his task of providing the Council with options for the statute and rules of procedure of such a tribunal. Once the Secretary-General's report was received, the United States, along with the other members, would act quickly within the Council to establish a tribunal under Chapter VII. It would also, in cooperation with the United Nations, exert every effort to ensure that those individuals involved in the outrageous, heinous crimes were identified and held accountable for their actions which so affronted the world's collective conscience.
Continuing, Ms. ALBRIGHT (United States) recalled that the Nuremberg principles on war crimes, crimes against the peace and crimes against humanity were adopted by the General Assembly in 1948. By its action today, she said, the Security Council had shown that the will of the Organization could be exercised, even if it had taken nearly a half century for the wisdom of the earliest principles to take hold. She hoped it would not take another half century to achieve the peace and security that would render the hideous crimes which many suspected had been committed, as strictly historical phenomena.
THOMAS L. RICHARDSON (United Kingdom) said the international community had become aware of the massive breaches of international law in Bosnia and Herzegovina, such as the forcible movements of populations, removal of property, systematic rape and massacres.(END OF TAKE 7)All parties shared the responsibility for such acts, but the Serbs were the most culpable, he said. All such actions must be condemned and the perpetrators brought to justice. Each culprit must be held individually responsible for his actions.
An international legal mechanism must be established to prosecute such violations, he said, and it must have jurisdiction over all parties and bring those concerned to justice.
The Secretary-General's task, to work out the practical details, would not be easy, he continued. It was vital that necessary evidence be provided to any international mechanism prosecuting war crimes. Sufficient resources must be provided to the Commission of Experts that was collecting and investigating evidence of alleged violations. While he supported, in the short term, the establishment of a war crimes tribunal to prosecute crimes committed in the territory of the former Yugoslavia, for the longer term his country would continue to support the work of the International Law Commission in drafting the statute for an international criminal court.
YULIY M. VORONTSOV (Russian Federation) said his country could not remain unconcerned about the violations of international humanitarian law. Rape, "ethnic cleansing" and other atrocities must be halted and the guilty punished. The proposed tribunal reflected the will of the international community to have the parties agree to a settlement of the conflict.
It should not be forgotten, he said, that violations of international humanitarian law were occurring in other conflicts and that today's action should serve as a warning to those involved in them.
DIEGO ARRIA (Venezuela) said that, 40 years after the Nuremberg trials, the world was witnessing once again the barbarity that no one had conceived was possible.(END OF TAKE 8)The policies of "scorched earth", "ethnic cleansing" and "ethnic extermination", as well as the systematic rape practised by the Serb militias, had reached sinister and unthinkable levels, he said. As the Council deliberated, Sarajevo remained under siege and the city had been converted into a giant cemetery.
The resolution was consistent with the plan of action envisaged within the International Conference on the Former Yugoslavia, he said. He awaited urgently the recommendations of the Secretary-General on the practicalities of establishing an international tribunal so that the Council could act expeditiously to create the tribunal and bring to justice those responsible.
ANDRE ERDOS (Hungary) said Europe had not known such violations of international humanitarian law since the Second World War. The conscience of mankind could not condone such activities and allow those guilty of violations to escape justice.
The action by the Council would relieve the pain that the conflict had caused the people of the former Yugoslavia who for centuries had lived together. They were watching closely the work of the Council, whose success or failure would have repercussions around the world. Information and reports being received confirmed that the gravity and nature of the violations affected international peace and security.
The resolution adopted by the Council contained a message to the perpetrators, he said. Hungary was prepared to join in the second stage of the Council's consideration of the question following the submission of the Secretary-General's report.