Security Council SC/5624 3217th Meeting 25 May 1993 NIGHT SUMMARY
SECURITY COUNCIL ESTABLISHES INTERNATIONAL TRIBUNAL TO PROSECUTE VIOLATIONS OF HUMANITARIAN LAW IN FORMER YUGOSLAVIA
Adopting Resolution 827 (1993) Unanimously, Council Acts Under Chapter VII of Charter; Also Adopts Statute of Tribunal(A MORE DETAILED ACCOUNT OF THE MEETING APPEARS IN TAKES 1-10 OF THIS RELEASE)The Security Council, acting under Chapter VII of the Charter, tonight established an International Tribunal to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Council upon the restoration of peace there.
The Council took that action by unanimously adopting resolution 827 (1993), by which it also adopted the Statute of the International Tribunal. The Council also decided that all States must cooperate fully with the Tribunal and take any measures necessary under their domestic law to implement its Statute.
The Secretary-General was requested to urgently make practical arrangements for the effective functioning of the Tribunal. The Council decided that the determination of the seat of the Tribunal was subject to the conclusion of arrangements between the United Nations and the Netherlands acceptable to the Council, and that the Tribunal may sit elsewhere when necessary.
The Council further decided that the work of the Tribunal should be carried out without prejudice to the right of the victims to seek compensation for damages incurred as a result of violations of international humanitarian law. States and organizations were urged to contribute funds, equipment and services to the Tribunal, including expert personnel.
In the preambular part of the resolution, the Council, stating that the establishment of the Tribunal would contribute to halting violations of international humanitarian law in the former Yugoslavia, noted 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.
Statements were made by the representatives of Venezuela, France, United States, United Kingdom, Hungary, New Zealand, Japan, Morocco, Cape Verde, Pakistan, China, Brazil, Spain, Djibouti and the Russian Federation.
The Security Council meets this evening to consider proposals of the
Secretary-General on the establishment of an international tribunal for the
prosecution of those responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1 January 1991.
In his report (document S/25704 and Add.1), the Secretary-General states
that such a tribunal should be established under Chapter VII of the Charter
as a subsidiary organ of the Council; it should perform its functions
independently of political considerations and not be subject to the
authority or control of the Council with regard to the performance of its
judicial functions; its life span should be linked to the restoration and
maintenance of international peace and security in the territory of the
former Yugoslavia; and that its seat be at The Hague.
The Secretary-General proposes that the tribunal should consist of three
organs: two trial chambers and an appeals chamber; the prosecutor; and a
registry, servicing both the chambers and the prosecutor. The chambers
would be composed of a total of 11 judges -- three in each trial chamber
and five in the appeals chamber. It is proposed that the prosecutor's
office combine investigative and prosecutorial functions. Judges should be
elected for a four-year term by the General Assembly from a list of
nominees put forward by Member States and short-listed by the Council to a
number no less than 22 and no more than 33.
Having determined that the involvement of the Assembly in the drafting of
the tribunal's statute would not be reconcilable with the urgency expressed
in Council resolution 808 (1993), as some had suggested, the
Secretary-General says there are other ways of involving the authority and
prestige of the Assembly in the establishment of the tribunal.
Should the Council establish the tribunal on the basis proposed, the
addendum to the report estimates that the operating costs for the first
full year of operation would be approximately $31.2 million as a regular
budget expense. Those estimates cover staff of 373, plus 11 judges and
relating operating costs, including language and verbatim records services.
However, a significant number of costs, for which no accurate estimates can
be ascertained at this time, are not included. Among them are: possible
rental of premises, detention facilities before and during the trial, and
imprisonment.
On the competence of the international tribunal, the Secretary-General
states that it should apply only those rules of international humanitarian
law which are part of customary law beyond any doubt and which are embodied
in: the 1949 Geneva Conventions for the Protection of War Victims; the 1907
Hague Convention on the Laws and Customs of War on Land; the 1948
Convention on the Prevention and Punishment of the Crime of Genocide; and
in the category "crimes against humanity", which were first recognized in
the Charter and Judgement of the Nurnberg Tribunal.
That category refers to inhumane acts of a very serious nature committed as
part of a widespread or systematic attack against any civilian population
on national, political, ethnic, racial or religious grounds. In the
conflict in the former Yugoslavia, states the report, such inhumane acts
have taken the form of so-called "ethnic cleansing" and widespread and
systematic rape and other forms of sexual assault, including enforced
prostitution.
On individual criminal responsibility, the report states that acting upon
an order of a Government or a superior cannot relieve the perpetrator of
his/her responsibility and should not be a defence. Obedience to superior
orders may, however, be considered a mitigating factor, should the
international tribunal determine that justice so requires.
The report also contains recommendations on investigation and pre-trial
proceedings; trial and post-trial proceedings; and cooperation and judicial
assistance. It states that trial proceedings should not commence until the
accused is physically present before the tribunal. It also stipulates that
measures must be taken to protect victims and witnesses and that penalties
should be limited to imprisonment. Such imprisonment should be served in a
State designated by the international tribunal from a list of States which
have indicated to the Council their willingness to accept convicted
persons.
A draft statute for the international tribunal is annexed to the report.
(END OF TAKE 1)
Also before the Council is a draft resolution (document S/25826), sponsored by France, New Zealand, the Russian Federation, Spain, the United Kingdom and the United States, which reads as follows:
"The Security Council,
"Reaffirming its resolution 713 (1991) of 25 September 1991 and all subsequent relevant resolutions,
"Having considered the report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993),
"Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of 'ethnic cleansing', including for the acquisition and the holding of territory,
"Determining that this situation continues to constitute 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 as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace,
"Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed,
"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),
"Reaffirming in this regard its decision in resolution 808 (1993) 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,
"Considering that, pending the appointment of the Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report (S/25274),
"Acting under Chapter VII of the Charter of the United Nations,
"Approves the report of the Secretary-General;
1. " Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace, and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report;
2. " Requests the Secretary-General to submit to the judges of the International Tribunal, upon their election, any suggestions received from States for the rules of procedure and evidence called for in Article 15 of the Statute of the International Tribunal;
3. " Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute;
4. " Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel;
5. " Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions;
6. " Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law;
7. " Requests the Secretary-General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of the International Tribunal at the earliest time and to report periodically to the Council;
8. " Decides to remain actively seized of the matter."
(END OF TAKE 2)
SECURITY COUNCIL -- TAKE 3
The Council President, YULIY M. VORONTSOV (Russian Federation), called the meeting to order at 9:25.(END OF TAKE 3)The PRESIDENT informed the Council that he had received letters from the representatives of Bosnia and Herzegovina and Croatia requesting to participate in the discussion.
There being no objection, the PRESIDENT invited those representatives to participate in the discussion without the right to vote, in accordance with rule 37 of the Council's provisional rules of procedure.
In addition to the report of the Secretary-General (document S/25704 and Add.1) and the text of a draft resolution (document S/25826) before the Council, the PRESIDENT drew attention to the following documents: note verbale dated 12 March, from Mexico (document S/25417); letters, dated 31 March and 13 April from Canada (documents S/25505 and S/25594); letter, dated 5 April from the Russian Federation (document S/25537); letter, dated 6 April from Brazil (document S/25540); letter, dated 5 April from the United States (document S/25575); letter, dated 20 April from Slovenia (document S/25652); note verbale dated 30 April, from Netherlands (document S/25716); letter, dated 11 May, from Canada (document S/25765); letter, dated 19 May from Yugoslavia (document S/25801); letter, dated 24 May from France, the Russian Federation, Spain, the United Kingdom and the United States (document S/25829).
The Council then adopted the draft resolution unanimously as Council resolution 827 (1993).
Speaking after the Council's action, DIEGO ARRIA (Venezuela) said modern society required a forum to address crimes against humanity that tore at the conscience of mankind. The Council had created a tribunal to try and punish those guilty of abominable crimes. Today's action was an essential component of the Vance/Owen plan. The Khmer Rouge, the warlords of Somalia, Iraq and Sudan, to name a few, had also committed crimes. The Council had acted this evening to address crimes in the territory of the former Yugoslavia and, in so doing, had sent a message to criminals in other areas of the world. Such acts would not be tolerated.(END OF TAKE 4)The fact that the Tribunal was created as a subsidiary body of the Council in no way suggested that it would be charged with creating laws, he continued. Rather, it would implement existing humanitarian laws. Venezuela had accepted the establishment of the Tribunal given the exceptional nature of events, even though it would have been preferable to do so with greater attention to the concerns prevailing in various countries. Today's action in no way was intended to target the Serbs or any one party to the conflict. The Tribunal would impartially deal with all branches of humanitarian law.
He said that crimes such as terrorism, money laundering and drug trafficking transcended borders. Organized crime easily flouted national laws. Just as "ethnic cleansing" was being carried out in the former Yugoslavia, systemic persecution of judges, lawyers and others who dared to prosecute organized crime persisted in other parts of the world. Nothing encouraged crime more than impunity. By delaying the establishment of a permanent international Tribunal, the international community was allowing organized crime to flourish.
HARVE LADSOUS (France) said the Nurnberg and Tokyo Tribunals, which had judged in the name of humanity all those who had transgressed elementary rules, had been created by the victors at the end of a war. The statute of the Tribunal just established had been elaborated, in conformity with Council resolution 808 (1993), by the Secretary-General and others, notably Carl-August Fleischhauer, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, in a relatively short period of time, he said. Its references to "laws or customs of war" covered all obligations under humanitarian law. Article 5, which detailed various crimes, was applicable in the framework of general or systematic attacks against a civilian population on national, political, ethnic, racial or religious grounds.
The resolution had been adopted under Chapter VII of the Charter, he went on, which was justified by the threat to international peace and security. Under Article 25 of the Charter, all States were required to fully cooperate with the Tribunal, even if that obliged them to amend certain provisions of their domestic law. The Council was communicating the determination of the United Nations to not tolerate infamy. He hoped that that message would be understood by all.
MADELEINE K. ALBRIGHT (United States) said today the international
community began to cleanse the hatred that had torn apart the former
Yugoslavia. Only the truth could cleanse the ethnic and religious hatreds
and begin the healing process. The crimes being committed there were not
just isolated acts of drunken militia men, but often the systematic crimes
of government officials, military commanders, and disciplined soldiers. The
men and women behind these crimes were individually responsible for the
crimes of those they purported to control. The fact that their power was
often self-proclaimed did not lessen their culpability.
To those skeptics -- including the war criminals -- who derided the
Tribunal as being powerless because the suspects might avoid arrest, she
said they should not be so confident. The Tribunal would issue indictments
whether or not suspects could be taken into custody. They would become
international pariahs. While those individuals might be able to hide within
the borders of Serbia or parts of Bosnia or Croatia, they would be
imprisoned for the rest of their lives within their own land. "Under
today's resolution, every government, including each one in the former
Yugoslavia, will be obligated to have over those indicted by the Tribunal",
she said.
The voices of the groups most victimized must be heard by the Tribunal, she
said, referring particularly to the detention and systematic rape of women
and girls, often followed by cold-blooded murder. "Let the tens of
thousands of women and girls who courageously survived the brutal assault
of cowards who call themselves soldiers know this: your dignity survives,
as does that of those who died", she said. The International Tribunal would
prosecute the rapists and murderers and their superiors.
Her Government was also determined to see that women jurists sat on the
Tribunal and that women prosecutors brought war criminals to justice, she
continued. "Our view is shared by all of the women permanent
representatives of this Organization". She said, taking note of the
recommendation of the Organization of the Islamic Conference, that gender
be duly represented on the Tribunal.
Referring to the just adopted resolution, she said it ensured that the
United Nations Commission of Experts continued to puruse its work of
establishing a database and preparing evidence during the interim period,
before the appointment of the Tribunal's Prosecutor and hiring of staff to
begin authoritative investigations and preparations for trials. "We expect
that the Secretary-General will provide the Commission with the space,
resources and personnel necessary to continue its mandate", she said,
urging other countries to follow the United States lead in pledging
financial contributions to the Commission. At the appropriate time, the
Commission would cease to exist and its work would be folded into the
Prosecutor's office.
She commended the Secretariat for the outstanding report, which had laid
the foundation for today's action by the Council. While the Council had
adopted the statute for the Tribunal as proposed in that report, members of
the Council had recognized that the statute raised several technical issues
that could be addressed through interpretive statements.
It was understood, she continued, that the "laws or customs of war"
referred to in Article 3 of the statute included all obligations under
humanitarian law agreements in force in the territory of the former
Yugoslavia at the time the acts were committed, including Common Article 3
of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these
Conventions. Further, it was also understood that Article 5 applied to all
acts listed in that article, when committed contrary to law during a period
of armed conflict in the territory of the former Yugoslavia, as part of a
widespread or systematic attack against any civilian population on
national, political, ethnic, racial, gender, or religious grounds. In
addition, it was understood that the primacy of the International Tribunal
referred to in paragraph 2 of Article 9 only referred to the situations
described in Article 10.
Regarding other provisions of the statute, she offered the following
clarifications:
with respect to paragraph 1 of Article 7: "it is our understanding that individual liability arises in the case of a conspiracy to commit a crime referred to in Articles 2 through 5, or the failure of a superior (whether political or military) to take reasonable steps to prevent or punish such crimes by persons under his or her authority; it is, of course, a defense that the accused was acting pursuant to orders where he or she did not know the orders were unlawful and a person of ordinary sense and understanding would not have known the orders to be unlawful;"with respect to Article 10: "it is our understanding that the Tribunal is authorized to conduct proceedings against persons previously tried by a national court for the same crime when national proceedings (including clemency, parole, and other similar relief) were not impartial or independent, were designed to shield the accused from international criminal responsibility, or were not diligently prosecuted;"with respect to Article 19: "we understand that the reference to a 'prima facie' case in paragraph 1 means a reasonable basis to believe that a crime as defined in Articles 2-5 has been committed by the person named in the indictment;" andwith respect to Article 24: "it is our understanding that compensation to victims by a convicted person may be an appropriate part of decisions on sentencing, reduction of sentences, parole or commutation and that the Tribunal may impose a sentence of life imprisonment, or consecutive sentences for multiple offenses, in any appropriate case."
The Tribunal must succeed, for the sake of the victims and for the credibility of international law, she concluded.(END OF TAKE 5)
Sir DAVID HANNAY (United Kingdom) said his Government had been horrified at the continued reports of massive breaches of international humanitarian law and human rights in the former Yugoslavia, the abuse of women, the deliberate obstruction of humanitarian relief convoys, forced population movements, forcible surrender of property and the deliberate military targeting of civilian populations.(END OF TAKE 6)All parties shared responsibility for those crimes, and today's action was not aimed at one party alone, he said. The Security Council had repeatedly demanded the immediate cessation of such atrocities, but its demands had not been heeded. Those who committed such acts must realize that they would be held individually responsible whoever and wherever they might be. The establishment of the Tribunal had been an exceptional step to deal with exceptional circumstances.
He stressed that for the effective functioning of the Tribunal, the judges, prosecutor and staff must have considerable practical experience in the field of criminal prosecution. The primacy of the Tribunal covered in Article 9 related primarily to the courts in the territory of former Yugoslavia. Elsewhere, it would only be in the kinds of exceptional situations outlined in Article 10(2) that primacy could be applicable. Articles 2 to 5 of the draft Statute described the crimes within the jurisdiction of the Tribunal. The Statute did not create new law, but reflected existing international law. The reference to the laws or customs of war in Article 3 was broad enough to include applicable international conventions and Article 5 covered acts committed in time of armed conflict.
As the resolution made clear, he said, it would be necessary for States to establish their own procedures for implementing their obligations under the Statute. Domestic procedures would be needed to give effect to the obligation under Article 29 to comply with a request or order concerning the surrender or transfer of an accused to the international Tribunal. The General Assembly would make the necessary budgetary allocations for the effective functioning of the Tribunal, and in due course the appropriate organs would need to carefully scrutinize the financial arrangements for the Tribunal. The establishment of the Tribunal should send a clear signal to all in the former Yugoslavia to stop immediately violations of international humanitarian law. "We hope that signal will be heeded", he said.
ANDRE ERDOS (Hungary) said today's action was a logical follow-up to Security Council resolution 764, which referred to violations of international law that had not been seen in Europe for decades. The Statute of the Tribunal allowed for the prosecution of all persons -- not groups -- for their crimes. Those committing acts of violence, including the massacre of children, women and the elderly, the destruction of cultural and religious property, and ethnic cleansing, must not be allowed to escape prosecution. Today's action sent a strong signal that such violations would not be tolerated.