(THE PARTY new, N. 11, 27 july 1993)

Organizational and administrative problems, financial cut-backs, protection of witnesses and the real power of the Public Prosecutor are the main issues which are putting a question mark on the ad hoc International Court to prosecute crimes committed in the former Yugoslavia, and its actually becoming operational. Not to mention the apparent lack of political will on the part of many members of the UN Security Council, which formally instituted the Court.

"It would be a resounding defeat for the initiative which hopes to create international justice, if the Tribunal for the Ex-Yugoslavia is not permitted to start its work. Indeed, it wouldbe worse than it's not having been instituted at all." declared a worried Cherif Bassiouni, Professor of Law, Head of the Syracuse Criminology Institute and member of the Radical Party.

Professor, what significicance does the Tribunal have with regard to the juridical and political structure of the UN?

BASSIOUNI - The Court was set up on the authority of the Security Council. For the first time in the history of the United Nations, this executive organ used its power to institute a Tribunal to support the efforts being made to re-establish peace in a specific zone. In short, up until now the competence of the Security Council in the area of peacekeeping was never seen as extending to the setting up of international legal institutions. Notwithstanding a number of doubts regarding the Council's capacity to set up this Court, its constitution has been wholeheartedly approved - with one or two exceptions - by international public opinion. Also because it has been the only real initiative undertaken to seriously deal with the tragic and inhuman situation existing in the former Yugoslavia. However, a Security Council Resolution is not enough for the Court to start functioning: the various States must also cooperate, and it is therefore essential that they create the necessary juridical instruments within their o

wn legal systems.

From what you are saying it would seem that there are still some political problems to be solved...

BASSIOUNI - The main problem is, without a doubt, the political will of the UN Member States. Almost all of these countries appear to support the institution of the Tribunal; neverthless, it is quite evident that some States still have reservations. These reservations stem from three basic situations: firstly, certain States are against the creation of international institutions on principal; secondly, countries that have presumably committed crimes against humanity would naturally fear that the ad hoc Court for the former Yugoslavia could create a precedent which would be damaging to them; thirdly, a number of powers have a vested interest in attaining peace in the former Yugoslavia at all costs, and I emphasize "at all costs".

Doesn't the institution of this Court risk underscoring a contradiction already evident in the UN's behaviour in the Balkans situation? For example, on the one hand the Security Council is setting up a Court to prosecute war crimes and, on the other hand, UN and EC mediators Lord Owen and Thorvald Stoltenberg, are negotiating daily at the Geneva peace talks with people who are possibly responsible for these crimes...

BASSIOUNI - The contradiction is there for anyone to see, without their having to be a jurist, expert or astute politician. The discrepancy that exists between the juridic model and the political and diplomatic model cannot continue for ever. Sooner or later, they will have to make a choice. The politico-diplomatic option, should it prevail, would obviously provide a safeguard against juridic action. It is equally obvious that should the juridic model prevail, it will not be able to coexist with a politico-diplomatic action which guarantees impunity to those presumed responsible for committing the war crimes.

At least the International Community is going to have to make a choice!

BASSIOUNI - Unfortunately, they don't have an alternative. However, the choices aren't always clear-cut in the world of politics. No one has the courage to assume responsibility and make well-defined choices, and so we always find ourselves in ambiguous situations.

What else could prevent the enforcement of the Security Council Resolution with which the Court was instituted?

BASSIOUNI - Aside from the political problems we have just discussed, the setting up of a new institution is naturally a complex business. There are always problems of a financial, organizational and practical nature. In this case, one of the major difficulties is how to bring the defendants to court. As you know, one of the founding principles ofthe Statute of the ad hoc Court is that no one shall be tried in absentia. It is highly probable that some countries will not want to cooperate and will limit themselves to handing over a few defendants of low standing, while refusing to surrender more important figures in their political or military hierarchies. There are also administrative problems, especially those concerning the office of Public Prosecutor. And these problems do not end with the appointment of a Public Prosecutor with the necessary autonomy, integrity and authority. For example, what if he is not equipped with the instruments and personnel indispensable to his work? And what will happen if vict

ims and witnesses are not protected from embarassing situations, or possible reprisals on the part of national governments?

Could the Tribunal for the Ex-Yugoslavia be the first step in setting up a permanent International Court?

BASSIOUNI - It could be, and it must be. But only if it functions properly. If it doesn't, not only will the ad hoc Tribunal be discredited but also every initiative that follows in its wake.

How could the Tribunal become an integral part of UN reform?

BASSIOUNI - In the same way that an International Court to judge civil and economic issues between States has been set up in the Hague, one could also insist on the institution of an International Criminal Court. This Court would naturally be one of the UN's permanent institutions.