Mister President,

I am most grateful for the signal honour of being invited to address this Assembly.

Of course, I shall not summarize the First Annual Report of the International Criminal Tribunal for the Former Yugoslavia (A/49/342;

S/1994/1007). I shall simply draw your attention to come crucial issues concerning the establishment and functioning of the Tribunal.

Mister President, with your permission I shall divide my exposition into four parts. First, I shall briefly recall the unique nature of the Tribunal. Second, I shall try to cast some light of the tribunal. Third, I shall provide an update to our Annual Report. Fourth, I shall set out a few final reflections.

Just a few words will suffice to bring to the fore the novelty and crucial significance of the Tribunal. It cannot be danied that we are currently witnessing an escalation in both national and international violence. This escalation is not only quantitative. It is also qualitative, in a sinister way. In previous times, whem individuals and State agents perpetrated vicious crimes, they hastened to cover them up, or else they denied being involved in their commission. These expedients, however hipocritical, showed nevertheless that individuals and States endeavoured to cleanse their consciences, by claiming that they had not, in fact, misbehaved. In recent years even this pretence of good behaviour has been dropped: individuals and State agents engage in barbarous misdeeds without fear of the moral and political blame of the world community. They slaughter, maim and kill without even attempting to conceal their murderous hand.

The quality of violence has also changed in a second respect. Conflict, animosity, ethnic, racial and social tension tend to radicalize dramatically and to find their sole outlet in physical violence. We are also witnessing an evil implementation of the concept whereby the political universe falls into two categories, friend or enemy: either you are on my side, and I shall lend you a supportive hand, or you are my foe, and I shall give you no quarter. In this Manichean vision of life and society, little or no space is left for mutual inderstanding, for compromise, for the amicable settlement of differences. The principle of dialogue, advocated by such thinkers as Gandhi and Martin Buber, has been thrown overboard.

Faced with this calamitous plunge into violence, the international community's response -- at least with regard to first one and now a second area of conflict: the former Yugoslavia and Rwanda -- has been drastic: those suspected of outrages against humanity must be brougth to justice at the international level; if found guilty, they must be sternly punished by a truly international and truly impartial body, before the very eyes of the whole international community.

Clearly, the United Nations also pursued two other objectives when it created these two new institutions. International justice must discourage further crimes. Wherever there are people in the former Yugoslavia or Rwanda viciously intent on destroying others, thery are now served notice: the international community will be inexorable in meting out condign retribution.

The other objective that these two Tribunals have been called upon to pursue is to introduce true reconciliation once the clamour of weapons has come to an end. Even after a peace settlement has been forged, how can a man regrain from harboring hatred and suspicion if he believes -- rightly or wrongly -- that a neighbour has raped his wife, has killed his children, has looted his property? How can we prevent someone from instinctively hating a whole ethnic group, and thus leaving a spark of hatred to reignite the whole conflict, if the particular member of that group who has allegedly wrought havoc upon him or her is not brought to book? Collective responsibility must be replaced by individual responsibility. Only international justice can dissolve the poisonous fumes of resentment and suspicion, and put to rest the lust for revenge.

If this, Mister President, is the basic rationale behind the establishment of the International Tribunal for the former Yugoslavia and now the International Tribunal for Rwanda, it is apparent that the creation of these institutions, so strongly willed by the international community, signals an impressive turning point. Not only has the United Nations built up a powerful bridge-head in its fight against inhumanity but it has reinforced that position at the first possible oportunity. The advance thus made in international relations is striking: international standards on respect for human dignity in armed conflict, a body of law which, in 1952 a great lawyer, Sir Hersch Lauterpacht, saw as being "at the vanishing point of international law", will no longer be impervious to international judicial enforcement. These important steps make it possible to cherish the hope that the United Nations will eventually establish a criminal court of a permanent nature for the punishment of outrages against humanity, w

herever they may be perpetrated.

Mister President, let me move on to my second point. This point can be set out as follows: how is it that, twelve months after the establishment of this ground-breaking institution -- the Tribunal for the former Yugoslavia -- no trials have yet been conducted at The Hague?

To answer this question, I need, Mister President, to draw your attention to something which may seem obvious, and is indeed obvious, but ought nevertheless to be borne in mind. To make an international criminal tribunal function one needs several things. One needs a courtroom as well as a secure place to hold the accused pending trial; they must be built specifically for that purpose: of course one cannot use a national courtroom or a national jail; otherwise, how would one avoid inferences of national influence? One also needs international prosecutors and judges, as well as law clerks, experts in court management, court reporters and other appropriate staff. In addition, one needs security officers responsible for the protection of both judges and prosecutors as well as of victims, witnesses and defendants; on top of that one needs guards charged with the custody of persons awaiting trial. As you see, Mister President, even at this simple level, it is clear that the logistic requirements of an intern

ational criminal court are numerous and varied and markedly different from those necessary for setting up any of the various administrative bodies of the United Nations. What is no less important, they are expensive and consequently call for adequate financial appropriations.

To depict graphically the way the International Criminal Tribunal for the former Yugoslavia has tackled this huge array of problems, let me draw a parallel with the most important precedent at hand: the International Military Tribunal at Nuremberg. Nuremberg, which was in the American zone of occupation, was chosen because it had a Palace of Justice relatively undamaged by war and a large adjacent prison. The basic facilities were thus close at hand and the necessary alterations and enlargement of the courtroom were quickly carried out by the American forces of occupation. The bulk of the logistic resources was provided by the army of the four victor Powers, and in particular by the American Army. To quote a great authority on the matter, Telford Taylor, the American Army not only chose and repaired the premises but "brought the defendants and witnesses to Nuremberg and guarded and safeguarded them; procured the necessary duplicating, recording and communications facilities for the trial staff and thre

press, and a large part of the administrative facilities and clerical personnel (...); (it also) provided overall security". Whenever investigators, court reporters and other personnel were needed, the Nuremberg Tribunal tapped the huge resources of one of the occupying Armies, and the problem was settled with military dispatch and efficiency. For example, it was from General Eisenhower that the Tribunal obtained its "Secretary-General" (in our tribunal we would call him "Registrar") as well as approval for the payment of compensation to defence counsel. The occupying Armies also arrested all available defendants and brought them to Nuremberg. This made it possible for the trial to start with surprising speed: only three and a half months after the adoption of the Nuremberg Statute.

Things have gone differently with our Tribunal. This is a truly international institution; it is the expression of the entire world community, not the long arm of four powerful victors. As a consequence, our Tribunal could only draw upon the resources made available to it by this World Organization. Mister President, I shall not recount all the logistic, financial and other practical problems bedeviling the initial life of the Tribunal. These problems are set out in full in our Annual Report. Let me just draw your attention to three of those problems.

First, for many months after the institution of the Tribunal, the lack of a regular budget made it impossible to build a courtroom. As a consequence, a courtroom (only one, of the three which are required) is only now available, twelve months after the setting up of the Tribunal. The same applies to the construction of a special detention unit under U.N. authority and control at The Hague: despite the best efforts of all involved, this unit was ready only eleven months after the institution of the Tribunal.

Even more serious problems were caused by the lack of a Prosecutor. For many months this has been a matter of serious started unless the Prosecutor submits an indictment: plainly, the key to the Tribunal's action lies in the hand of the Prosecutor. As you know, Mister President, a Prosecutor was appointed by the Security Council in October 1993 but did not take office immediately, in order to complete his mandate in his national State; then, in February 1994, when he was due to start his activities, he resigned for personal reasons. Only in July 1994, that is eight months after the Tribunal's establishment, was it possible for the Security Council to reach agreement on the appointment of another Prosecutor. Our Prosecutor, Justice Richard Goldstone, took office on 15 August of this year, that is eight and a half months after the initiation of the Tribunal's work. Before this date the Deputy Prosecutor, in spite of his best efforts and untiring activity, had no legal authority -- according to the prevail

ing view -- even to start investigations, let alone prosecutions. In addition, for months the Deputy Prosecutor was all alone: for months the Office of the Prosecutor Consisted of just the Deputy Prosecutor and one secretary.

In addition to these two major problems, let me draw your attention to a third and fundamental difficulty our Tribunal has had to face. This difficulty is not caused by financial or logistic strictures but is inherent in the conduct of international criminal proceedings with what normally happens in a national criminal case, on the one hand, and with the way international bodies normally collect information about serious breaches of international law, on the other hand. I shall start with a comparison with domestic criminal investigations.

Let us take a case of murder, that is the crime closest to those over which our international Tribunal has jurisdiction. Within a national setting, when a murder is committed normally there is one victim and one offender. The police, comprising investigators and forensic teams, are on the spot and are able to commence their investigations immediately, in the very area where the offence occurred. As a rule, witnesses are not far from the location of the crime and real evidence such as weapons, blood and so on can be readily collected. If the evidence includes any written material, all this is in the language of the investigators. Furthermore, the police are guided by a set of clear legal rules and well-thumbed legal precedents. Let me stress two more points, which are also important: on average five to ten investigators are called in to take part in the inquiry, which, again on average, may last many months; in addition, as soon as a suspect is identified, he or she is arrested by the police, who can the

n carry on their investigations and collection of evidence without fear that the presumed offender will escape.

This is what happens in most States, at the national level. Let us now turn to the international setting, in particular the setting of our Tribunal at The Hague. Here things are quite different. First of all, the crime scene is normally far from the seat of the investigators, as well as being inaccesible - or at any rate not immediately accessible. Secondly, the crimes normally involve dozens of victims and scores of perpetrators. Thirdly, there is little or no forensic evidence available when the investigators arrive. Often the investigators will not have the body of the murder victim, and proving murder without a body is a hughly complex and time-consuming exercise. Furthermore the victim's relatives do not normally keep, or cannot keep, the outward evidence of the alleged crime. As for witnesses, many are dead; the whereabouts of others are unknown; other witnesses are scattered in various countries. Investigators may therefore have difficulty in tracing them; those who can be found are often traumat

ized, fearful or disillusioned; if they are willing to give testimony, they speak a language other than that of the investigators; therefore an interpreter is needed and this makes the interview (as well as all the subsequent proceedings) even more difficult. Fourthly, often many States are involved in the investigations; the victims may have fled to various countries, while the witnesses may have taken refuge in others. Since each State has its own laws and its own bureaucracy, our Prosecutor needs to get in touch with and obtaing cooperation from many different States. Fifthly, there often arise jurisdictional problems. Our Prosecutor cannot be content with ascertaining whether a murder has been committed and, if so, by whom: he must satisfy himself that the killing in question comes under the heads for which the Tribunal has jurisdiction: grave breaches of the Geneva Conventions, genocide and so on. To this end it is often necessary to look into a whole range of events or relationships such as the chain

of command or patterns of behaviour. Furthermore, the applicable international law may be uncertain or unclear or, at any rate, not as developed and clear-cut as a national statute or a whole body of national case-law. Sixthly, and most importantly, our Prosecutor has no immediate power of arrest, search or seizure. For this purpose he must turn to national authorities. However, before requesting the arrest, search or seizure, he must prove that there is a prima facie case, namely that there is sufficient evidence leading to the reasonable belief that the suspect can be accused of the crime. It follows that our Prosecutor cannot first arrange for the arest of the suspect and then collect the necessary evidence: no, he must first collect compelling evidence and only at the end of this long process can he, through one of our Judges, ask that the national authorities aprehend the suspect.

Mister President, all these difficulties inherent in international criminal investigations are compounded by one striking fact: currently our Tribunal has approximately twenty investigators for all the crimes over which it has jurisdiction. In other words, it can count on the number of investigators normally used at the national level for just two or three murders. This, I believe, speaks volumes for the tremendous problems with which we are confronted.

Let me now move on to a comparison of the criminal investigation and prosecution processes of our Tribunal with the way in which other international bodies collect information about egregious violations of international legal standards. This comparison is also necessary because many commentators have been wondering why, given the wealth of documentation existing on alleged crimes in the former Yugoslavia -- press reports, reports of Governments and NGOs as weel as the impressive work accomlished by the Commission of Experts created by the Security Council -- why, given all this material, the Prosector did not issue indictments immediately after taking office. The problem, Mister President, is that those reports are a far cry from

evidentiary material capable of standing up to judicial scrutiny. The task of our Prosecutor is to produce "credible evidence to prove incredible events". This is a task which is fundamentally different from that of other bodies which are simply called upon to collect information. Those bodies frequently do not attach great importance to the distinction between eye-witness evidence and evidence at third- or fourth-hand; if they interview witnesses, they normally do not have the time or the resources to double-check such interviews in order to verify their reliability; furthermore, in most cases they do not try to identify, let alone trace, the possible authors of the crimes, simply because this is not part of their brief or because they lack the necessary resources.

Needless to say, the methods and standards of our Prosecutor must of necessity be different. Let me give you an example. Let us assume that the representative of an NGO finds that there are fifty bodies in the mortuary of a village inhabited by a certain ethnic group; he notes that all of them been killed by shelling; in addition he is told by an inhabitant of the same village that on the previous day a military group belonging to an enemy army, located in the vicinity, attacked the village. In this case, the NGO representative may be warranted in concluding that a massacre of civilians was perpetrated by that particular army. Our Prosecutor needs to undertake much more extensive and complex investigations. He needs to prove that the deaths of those people were indeed cause by the shelling and not by any other explosion or firing; he needs to ascertain whether or not all those in the mortuary were killed by the same shelling, whether they all died as a result of the one incident, whether before dying th

ey were themselves fighters or peaceful civilians, whether any military objective was located close to the place where they were killed. Furthermore, our Prosecutor needs to indentify those who carried out the shelling, the chain of command, whether or not orders were given to fire on the village and so on. The Prosecutor also has the onus of establishing the guilt of the suspects beyond any reasonable doubt. For all these purposes he needs to locate and interview all the relevant witnesses, not only those implicating the suspects in the commission of the alleged crime but also those witnesses who may be able to exculpate the suspects. Let me add thet in undertaking all these actions, our Prosecutor has to comply strictly with a set of rules (our Rules of Procedure and Evidence); in particular, he is bound fully to respect stringent rules on the rights of victims, witnesses and suspects. As you see, the task of our Prosecutor is more demanding than, and indeed different from, that of bodies and organizations

responsible solely for collecting information and preparing reports.

Mister President, I am aware that this is indeed a gloomy picture. Let me however emphasize one important point: the difficulties to which I have drawn you attention should in no way lead one to conclude that the conduct of international criminal proceedings raises problems of such magnitude as to discourage resort to international criminal tribunals. Not at all! The speedy functioning of such tribunals are undoubtedly outweighed by the great merits of international criminal justice: indeed, in cases of gross and large scale violations of international legal standards on human rights, particularly when such violations occur in time of armed conflict, international justice can guarantee absolute independence and objectivity and a correct application of those legal standards. Often the national courts of the State or States where the gross breaches have occurred may not be in a position to render impartial justice, free from emotional or political overtones, and the courts of other States may lack the nec

essary jurisdiction. International justice thus becomes indispensable, the more so because the crimes at issue are on such a scale as to concern the whole international community. True, the realization of international justice faces a lot of practical problems. The response to these problems must be: more patience, perseverance and a strong will to overcome all existing and future difficulties.

That this must be the response is borne out, Mister President, by what has happened to our Tribunal for the former Yugoslavia. In spite of the numerous and diverse handicaps to which I have referred, the Tribunal's action has only been slowed, not hamstrung. It was an uphill battle, but we won the fight. Without waiting until all the necessary financial and practical measures were taken in New York, the Tribunal's judges resolutely put in hand all those activities that were within their power. They have thus laid the groundwork for the initiation of criminal proceedings. Suffice it to mention, in this respect, the expeditious elaboration and adoption of a mini-code of international criminal procedure (the Rules of Procedure and Evidence), of the Rules of Detention, governing the holding of accused in the Tribunal's custody while awaiting trial, and of the Directive on the granting of legal aid to defendants (which has been formally promulgated by the Registrar). These three sets of legal rules are indee

d unprecedented in the international community: given the huge differences between our Tribunal and those of Nuremberg and Tokyo, we had to sail into uncharted waters. Let me stress in particular the novelty of our Rules of Procedure and Evidence. Often we had to create new procedures or set out our own definition of procedural concepts. This we did by drawing upon some basic principles underlying the United Nations standards on human rights and the major legal civilizations of the world. Thus, in spite of inevitable flaws and lacunae that we shall make good in due time, we believe that we have been able to distill as well as harmonionsly amalgamate the most advanced aspects of the various legal systems, within the general framework of the principle of a "fair trial".

The three sets of legal rules to which I have just referred will now make it possible for trials to commence, as soon as the necessary legal and practical conditions are fulfilled.

Mister President, one of the most important of these conditions - if not the major condition - is the filing of indictments by the Prosecutor and their confirmation or rejection by a Judge of the Tribunal. This is a crucial issue on which I third point: the updating of our First Annual Report.

At present, in spite of all the existing difficulties, the Prosecutor's Office is investigating Twelve cases involving multiple suspects. Many of these investigations may require interviewing more than one hundred victims or witnesses, of whom possibly sixty will be called to each trial.

The investigations of the Prosecutor's Office have already yielded important results. In October the Prosecutor lodged with the Registrar an application for the deferral to our Tribunal of an important case then pending before the German authorities, a case involving charges of genocide, ethnic cleansing, torture, rape and murder of civillians and prisoners of war. Last week a Trial Chamber held a hearing at The Hague to examine the application as well as the statements made by the German Government and the defence counsel, who had been granted leave to appear as amici curiae. The Trial Chamber upheld the Prosecutor's application and requested Germany to remit the case to the International Tribunal. Mister President, this first public hearing has at last made our International Tribunal visible to the parties concerned and to world public opinion. In a way, it has not only marked the public birth of our Tribunal; it has also countered, at least in part, the scepticism so frequently expressed.

In addition, at the beginning of November the Prosecutor issued an indictment involving charges of gross violations of the Geneva Conventions and of the laws and customs of warfare, as well as charges of crimes against humanity. This indictment has already been confirmed by the reviewing Judge and made public. The reviewing Judge also issued two arrest warrants addressed to the relevant national authorities. Son the Prosecutor will submit further indictments.

It is thus apparent that the initial difficulties are being overcome and the Tribunal's work is proceeding at an increasingly rapid pace. If -- as I fervently hope -- this Assembly supports our efforts and approves the budgetary requests submitted by the Secretary-General, we expect a very busy 1995. We anticipate that, as from March 1995, the Tribunal will be in continous session throughout the whole of the year. The two Trial Chambers and the Appeals Chamber, having at their disposal only ne courtroom, will carry on alternate morning and afternoon proceedings.

Mister President, I shall wind up my statement with a few general reflections - and this will be my fourth and final point.

We in The Hague are, of course, aware of the limitations on the role of our Tribunal. War, this "leprosy of the human soul", and all other forms of armed violence are difficult to stamp out. This was bitterly acknowledged back in 1932 - when the Second World War already loomed large -- by two great men: Albert Enstein and Sigmund Freud. At the Suggestion of the League of Nations and its International Institute of Intellectual Co-operation, Einstein had invited Freud to try to give an answer to the crucial question of whether there was any way of delivering mankind from the menace of war: in particular, what impelled men to kill and die, why were so many men aroused " to such wild enthusiasm" as to be ready to massacre other human beings? In his reply Freud pointed out that there was little likelihood of our being able to suppress "humanity'S aggressive tendencies"; all that could be done was to divert man's destructive instinct "into a channel other than that of warfare" and to resort to some minor reme

dial measures which might, at least in part, stem those aggressive tendencies -- "palliative measures", we would call them. I feel, Mister President, that our Tribunal can be looked upon as such a palliative device.

We, the members of the International Criminal Tribunal for the former Yugoslavia, are fully aware that the sentences we will pass wll not exhaust the poisoned wells of racial, national or religious hatred. We also know, however, that the setting up of our Tribunal is intended to signal that the world community will not stand idly by,impassive or resigned, and watch while barbarous acts are perpetrated, unconcerded unaffcted by them only because thay are committed in what is, for most of us, a far away land, the former Yugoslavia. You, Members of this Assembly, together with the Security Council, have decided that massacre, rape, ethnic cleansing, the wanton killing of civilians, affect each and every one of us, whatever our nationality and wherever we live. They affect each and every one of us because they imperil the great principles of civilization enshrined in international legal standards on human rights.

In concluding, let me emphasize that our Tribunal could not have achieved even the initial progress it has made to date without the support of all of you, State representatives sitting here today. Some of you have supported us with donations to the Trust Fund of money, equipment, personnel and so on. For that I thank you most sincerely and assure you that every last bit will be used effectively. May I also thank the Kingdom of the Netherlands, whose hospitality seemingly is without limit. Furthermore, many NGOs have assisted us with our task so ably, and I hope that more and more will do so as our needs become fully apparent to the watching world. More especially, I must ask all States to continue to assist us generously, both by way of individual contributions and with overall support for our budget, which is again before this Assembly.

Mister President, the tasks that the United Nations has entrusted to us are daunting. On the eve of the United Nations' 50th anniversary, you have decided that the United Nations shluld broaden its arsenal of pacific means to include resort to international criminal justice, as a lawful response to force and violence. All those who are working on behalf of the Tribunal are aware of the heavy responsibility they have been called upon to shoulder on behalf of the whole international community. We shall all accomplish the Tribunal's mission to the very best of our ability and energy. We hope thus to make our contributin to alleviating the anguish and sorrow of all those who still continue to suffer, even as I speak now, in the former Yugoslavia.