Mister President,

Since I last had the honour of addressing the General Assembly in November 1994, there have been numerous positive developments in the work of the International Criminal Tribunal for the former Yugoslavia. Unhappily, there continue to exist major obstacles in the path of the Tribunal's success - obstacles which are only surmountable if the world community provides assisteance.

The ICTY is now operational

Mister President, the International Criminal Tribunal now has the capacity fully to operate as a judicial body. At present we are at last in a position to prosecute those responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia since 1991.

We have come a long way in the two years since November 1993 when the Tribunal was established. At that point in time, the Tribunal consisted of 11 judges and a Statute. It had no budget, no seat, no courtroom, no prison, no staff, no code of criminal procedure. Most debilitating of all, for the first nine months of its existence the Tribunal had no functioning Prosecutor. In the time since then we have taken great strides. As a result, we can now proudly state that everything is in place at the Tribunal. At long last we are engaged in the administration of justice.

In the two years since November 1993 we have gone from being a lofty - some might have said nebulous - idea to a living reality. The idea was that Member States could unite to ensure that vicious crimes against international humanitarian law would be punished. It was an idea which was met with skepticism, even with ridicule, by many who believe it to be unattainable. But it has been attained, at least in part, by dint of patience and perseverance. We Judges felt strongly that it was our moral duty to do our utmost to make the Tribunal an effective judicial mechanism.

I shall briefly recall what I consider to be our major achievements so far:

First, our Prosecutor has issued 9 indictments charging 43 individuals with serious of international humanitarian law. These indictments have all been confirmed by a reviewing Judge. Arrest warrants have been issued against all the accused. These accused include political and military leaders.

Second, a number of further investigations are under way in the Office of the Prosecutor with the result that more indictments are being issued almost every month.

Third, in pre-trial hearings, significant issues have been raised and argued before a Trial Chamber and the Appeals Chamber. These issues are of crucial importance; for instance some concern the international legitimacy and lawfulness of the Tribunal's establishment by the Security Council. Others relate to the Tribunal's subject-matter jurisdiction, i.e. its power to prosecute certain crimes. Other issues concern the protection of witnesses. The relevant Trial Chamber and the Appeals Chamber have thus had the opportunity to pronounce upon these important matters, thereby breaking new ground in international criminal law.

Fourth, the trial of an accused is set to start in a few months, now that all the pre-trial motions have been heard. The delay in the commencement of the actual trial is due entirely to problems raised by the Defence. Counsel for the Defence has asked the Tribunal to give him the financial wherewithal necessary to prepare his case as well as the time necessary to interview witnesses. It is his contention that, so far, he has been unable to contact witnesses for the Defence both because they are in a war zone and because of the total non-co-operation of the Bosnian-Serb authorities in Pale. The Tribunal, of course, considers the rights of the Defence and the principle of fair trial as sacrosanct; it therefore felt it was appropriate to grant the delay.

Fifth, a Hearing has been held under Rule 61 of the Tribunal's Rule of Procedure and Evidence. This Rule provides for a special procedure to which resort may be had when the accused is not brought to Trial either because he evades arrest or because the authorities refuse to cooperate withe Tribunal. This special procedure, which is by no means a trial in absentia, is designed to avoid giving the accused the power thwart or obstruct international justice by simply failing to appear in court. Under this procedure witnesses can be called by the Prosecutor, and they may testify in public and have their testimony recorded for posterity. On the basis of their testimony the Trial Chamber may conclude that there are reasonable grounds for believing that the accused has committed the crimes charged in the indictment, and issue an international arrest warrant. Last month the Tribunal applied Rule 61 for the first time. Thirteen witnesses appeared in court to give testimony regarding the alleged atrocities at the

hands of the accused. At the end of the proceedings the Trial Chamber issued an international arrest warrant against the accused. Further, the Trial Chamber asked me, as the Tribunal's President, to advise the Security Council of the failure of the Bosnian-Serb Administration in Pale to co-operate with the Tribunal. I did so on 30 October 1995.In sum, the Tribunal is boldly travelling towards the accomplishment of its mission. The path is not, however, without certain obstacles. I shall now outline three such obstacles.

Outstanding Problems:

1. Difficulty in obtaining State Co-operation

First, the decisions, orders and requests of the International Tribunal can only be enforced by others, namely national authorities. Unlike domestic criminal courts, the Tribunal has no enforcement agencies at its disposal: without the intermediary of national authorities, it cannot execute arrest warrants; it cannot seize evidentiary material, it cannot compel witnesses to give testimony, it cannot search the scenes where crimes have been allegedly committed. For all these purposes, it must turn to State authorities and request them to take action. Our Tribunal is lake a giant who has no arms and no legs. To walk and work, he needs artificial limbs. These artificial limbs are the State authorities; without their help the Tribunal cannot operate. Admittedly, this holds true for all international institutions which need the support of States to be able to operate. This concept was tellingly expressed as early as 1923 by a famous international lawyer, who pointed out the following:

"To fulfil its tasks, international law is continuously obliged to rely upon national law. Without it it is, in several respects, completely powerless. It is similar to a field marshal who can only give orders to generals and cannot therefore attain his goals unless he is sure that the generals, complying with his instructions, will issue new orders to their subordinates. If the generals do not pass on the orders to the soldiers engaged in fighting, the field marshal will lose the battle"

However, our Tribunal need the support of States more than any other international institution, because its actions have a direct impact on individuals who live in the territory of sovereign States and are subject to their jurisdiction. The adoption by States of all legislative, administrative and judicial measures necessary for the expeditious execution of the Tribunal's decisions thus proves of crucial importance.

Unfortunately, despite a clear decision of the Security Council in resolution 827 of 23 May 1993, at present only some 15 of the 185 Member States of the United Nations have enacted implementing legislation. A few other States have only gone so far as to indicate their intention to adopt such legislation in the near future.

Mister President, this lack of co-operation proves particularly paralysing for our Tribunal when it comes to the execution of arrest warrants. As I said before, the Tribunal does not have enforcement agency of any description at its disposal; we therefore need the assistance of States for the execution of arrest warrants issued by the Tribunal. Regretfully, so far two of the entities of the former Yugoslavia have refused to cooperate: I and referring to the Federal Republic of Yugoslavia (Serbia-Montenegro_, a Member State of the United Nations, and the Bosnian-Serb Administration in Pale. Their total lack of co-operation has greatly hampered the work of our Tribunal: 41 of the first 43 accused are in their territory but they have failed to apprehend these suspects and surrender them to our Tribunal. Without suspects physically in our presence, we cannot proceed to trial.

2. Difficulty in Administering Justice During an Ongoing Armed Conflict

A second obstacle facing the Tribunal arises out of the fact that the Tribunal is trying cases while an armed conflict is still under way and bloodshed and suffering are daily occurrences. This is in stark contrast to the usual situation of judicial institutions dealing with crimes committed in the course of hostilities: thy only step in when the conflict has ceased. This is what occurred at Nuremberg and Tokyo.

By contrast, our Tribunal has been called upon to dispense justice while armed conflict continues and while the planners and perpetrators of crimes shelter under the protective umbrella of military or political power. Plainly, no suspect will be surrendered to the Tribunal by those authorities which have been criminally complicit, or at least criminally negligent in preventing or stopping serious violations of international humanitarian law.

All of this greatly complicates the task of the Tribunal. For one thing, investigators - whether acting on behalf of the Prosecutor or the Defence - may be prevented from collecting evidence or interviewing witnesses due to continuing armed clashes. For another, witnesses may, in the absence of a protective state apparatus, fear immediate "reprisals" against themselves or their relatives, and therefore may create in many citizens a mood of partisanship: war criminals may be hailed as heroes and co-operation with the Tribunal may be viewed as traitorous.

3. Problems Resulting from Denial or Curtailment of Resources

A third concern is the difficulty the Tribunal has faced, and continues to face, in obtaining the financial and practical resources necessary to carry out its work. The budget for the biennium 1994-1995 was approved only in July 1995. Until that time the Tribunal went forward on limited resources made available as "provisional " amounts. This gave us little ability to plan, or to make the best use of their resources. Two short months later, the financial crisis in the United Nations crated new problems. These kinds of financial limitations strike at the very heart of our Tribunal, for two main reasons. First, the Tribunal is a new and innovative institution which is in the early stages of its growth, and we are undertaking activities which have never before been carried out by the United Nations. we urgently need to recruit a full complement of staff, we need to provide them with adequate tools to work, and we need to have adequate funds available to cover the initial expenses of setting up the Tribunal's wo

rking environment.

There is a second reason why the budget restrictions have made our lives particularly difficult in the Tribunal. The need to investigate crimes which are being committed half a continent away, and in a constantly changing environment, calls for immediate and responsive action by our investigators. They must move while the events are fresh. Restrictive financial policies do not allow us to react as quickly as possible. When mass graves are suddenly available for inspection, we should not be agonizing over whether the funding is available for travel.

Also essential to the Tribunal's work is the need for victims and witnesses of these atrocities to be reached for interviews, or to be able to travel to give testimony. These individuals live in all four corners of the world. No less important is the funding for court-appointed defence counsel. How can we secure full respect for the principle of fair trial if indigent accused cannot be provided with adequately funded lawyers and the means to provide a full and fair defence?

All of these undertakings are costly, of that there is no doubt. But if the United Nations want to hear the voice of justice speak loudly and clearly then the Member States must be willing to pay the price.

One step in the right direction was the recent decision of the Secretary-General to give to all relevant departments the direct responsability for implementing the cost-saving measures which were put into effect. This is indeed welcome news to the Tribunal - at least the responsability is now in our own hands to set priorities and spending goals. But it is not enough. We urge this Assembly to help us fulfil our mission by providing the badly needed resources.

Mister President, for us to overcome the hurdles I have outlined so far, the increasing support of Members of the General Assembly is vital. In this connection, I am happy to report that so far a number of States have substantially assisted our Tribunal both politically, morally and financially. In particular, the host country, the Netherlands, is providing unreserved and continuing assistance, for which we are deeply grateful. The European Union should also be greatly commended for its invaluable support in many areas; without this support our task would have been even more daunting.

It is Imperative that the Tribunal Succeeds in its Mission

Mister President, we are aware at The Hague that the world is watching our every move very closely and with mixed feelings; generous expectations but also profound scepticism. We cannot afford to disappoint these expectations; we must dispel this scepticism. The failure of our Tribunal would mean the failure of the Rwanda Tribunal as well, and the very idea of a permanent international criminal court could be set back for decades. What is even more important, Mister President, the Tribunal's failure would mean leaving unfulfilled the hopes and demands of so many victims in the former Yugoslavia who are insistently calling for justice. It has been said that the two dominant feelings in our age are fear and indifference. The Tribunal is a symbol to show that the United Nations cannot be accused of indifference vis-a-vis the fear and suffering prevailing in former Yugoslavia. Hence, to allow our Tribunal to fade away or eventually succumb to the obstacles I mentioned earlier, would ultimately mean that the worl

d community is impotent in the face of terrible human tragedies such as that currently unfolding in the former Yugoslavia.

Justice and Peace

Mister President, let me briefly tackle another topical matter, namely the possible impact on our Tribunal of successful peace negotiations. At present there appears to be a real prospect for a lasting peace in the region. Should that day arrive, is the Tribunal going to become useless? The answer must be a clear "No". If anything, the importance of the Tribunal will be even greater. For there to be a lasting peace it must be accompained by a sense of justice in the minds of all citizens and, in particular, the victims of atrocities, in the former Yugoslavia. It is universally acknowledged that peace without justice is no peace at all. If, at the end of a war, torturers and their victims are treated alike, the war's legacy of hatred, resentment and acrimony will not have been snuffed out; rather it will continue to smoulder. The existence of peace in such a climate would be precarious indeed. If, however, the Tribunal as an impartial body continues in its work of bringing to justice at least some of the most

egregious offenders, those who have suffered through four years of hellish war will be better able to find the forgiveness required for peace to last.

Indeed, with peace the Tribunal will become more efficient and better able to accomplish its mission. With peace, States will no longer be in a position to eschew co-operation with the Tribunal; they will have to comply with the Tribunal's requests to surrender suspects. Similarly, those States in the region which have so far evinced little interest in helping the Tribunal willnow have a real stake in co-operating, in order to ensure their good standing in the United Nations.

Concluding Remarks

Mister President, let me conclude by stressing once again that, despite the myriad difficulties encountered over the past year, the Judges - indeed, all those working for the Tribunal - have not been discouraged. Rather, they have worked unsparingly, bearing in mind the forceful words uttered fifty years ago thi month, on 21 November 1945, by the United States Chief Prosecutor, Justice Jackson, in Nuremberg, with respect to the trial that was opening there. He said:

"This trial represents mankind's desperate effort to apply the discipline of law to statesmen who have used their powers of State to attack the foundation of the world's peace".

The Judges at The Hague felt that these words should hold true for the Tribunal as well. They too are making a "desperate effort" to pursue the goal of applying the discipline of international humanitarian law to those who have planned, directed or perpetrated horrific crimes in the former Yugoslavia.

I very much hope, now that the Tribunal has moved on to a second, operational stage of its development, that it will be able to bring to fruition its immense potential and thus show that international criminal justice may fulfil an indispensable role in the pacification of the world community.