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77–896PDF 2002

MARKUP ON A RESOLUTION URGING THE GOVERNMENT OF

UKRAINE TO ENSURE A DEMOCRATIC, TRANSPARENT,

AND FAIR ELECTION PROCESS LEADING UP TO

THE UPCOMING PARLIAMENTARY ELECTIONS;

AND HEARING ENTITLED

‘‘THE U.N. CRIMINAL TRIBUNALS FOR YUGOSLAVIA AND

RWANDA: INTERNATIONAL JUSTICE OR SHOW OF JUSTICE?’’

MARKUP AND HEARING

BEFORE THE

COMMITTEE ON 

INTERNATIONAL RELATIONS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MARKUP OF

H. Res. 339

FEBRUARY 28, 2002

Serial No. 107–71

Printed for the use of the Committee on International Relations

(

Available via the World Wide Web: http://www.house.gov/international—relations 

(II)

COMMITTEE ON INTERNATIONAL RELATIONS 

HENRY J. HYDE, Illinois, Chairman 

BENJAMIN A. GILMAN, New York 

JAMES A. LEACH, Iowa 

DOUG BEREUTER, Nebraska 

CHRISTOPHER H. SMITH, New Jersey 

DAN BURTON, Indiana 

ELTON GALLEGLY, California 

ILEANA ROS-LEHTINEN, Florida 

CASS BALLENGER, North Carolina 

DANA ROHRABACHER, California 

EDWARD R. ROYCE, California 

PETER T. KING, New York 

STEVE CHABOT, Ohio 

AMO HOUGHTON, New York 

JOHN M. MCHUGH, New York 

JOHN COOKSEY, Louisiana 

THOMAS G. TANCREDO, Colorado 

RON PAUL, Texas 

NICK SMITH, Michigan 

JOSEPH R. PITTS, Pennsylvania 

DARRELL E. ISSA, California 

ERIC CANTOR, Virginia 

JEFF FLAKE, Arizona 

BRIAN D. KERNS, Indiana 

JO ANN DAVIS, Virginia 

MARK GREEN, Wisconsin 

TOM LANTOS, California 

HOWARD L. BERMAN, California 

GARY L. ACKERMAN, New York 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

DONALD M. PAYNE, New Jersey 

ROBERT MENENDEZ, New Jersey 

SHERROD BROWN, Ohio 

CYNTHIA A. MCKINNEY, Georgia 

EARL F. HILLIARD, Alabama 

BRAD SHERMAN, California 

ROBERT WEXLER, Florida 

JIM DAVIS, Florida 

ELIOT L. ENGEL, New York 

WILLIAM D. DELAHUNT, Massachusetts 

GREGORY W. MEEKS, New York 

BARBARA LEE, California 

JOSEPH CROWLEY, New York 

JOSEPH M. HOEFFEL, Pennsylvania 

EARL BLUMENAUER, Oregon 

SHELLEY BERKLEY, Nevada 

GRACE NAPOLITANO, California 

ADAM B. SCHIFF, California 

DIANE E. WATSON, California 

THOMAS E. MOONEY, SR., Staff Director/General Counsel 

ROBERT R. KING, Democratic Staff Director 

STEPHEN G. RADEMAKER, Deputy Staff Director/Chief Counsel 

DANIEL FREEMAN, Counsel/Parliamentarian 

MARILYN C. OWEN, Staff Associate 

(III)

C O N T E N T S 

Page

MARKUP 

Markup of H. Res. 339, Urging the Government of Ukraine to ensure a 

democratic, transparent, and fair election process leading up to the March 

31, 2002, parliamentary elections. ...................................................................... 1

Text of H. Res. 339 .................................................................................................. 3

Amendment in the nature of a substitute to H. Res. 339, as reported 

by the Subcommittee on Europe ..................................................................... 10

HEARING 

The Honorable Henry J. Hyde, a Representative in Congress from the State 

of Illinois, and Chairman, Committee on International Relations: Opening 

statement .............................................................................................................. 16

WITNESSES FOR THE HEARING 

The Honorable Pierre-Richard Prosper, Ambassador-at-Large for War Crimes 

Issues, U.S. Department of State ....................................................................... 20

Jeremy Rabkin, Professor, Department of Government, Cornell University ..... 36

Larry A. Hammond, Attorney at Law, Osborn Maledon, P.A. ............................. 41

The Honorable Patricia M. Wald, Judge, International Criminal Tribunal 

for Former Yugoslavia, 1999–2001; U.S. Court of Appeals for DC Circuit, 

1979–1999; Chief Judge, 1986–1991 .................................................................. 48

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

The Honorable Pierre-Richard Prosper: Prepared statement .............................. 24

Jeremy Rabkin: Prepared statement ..................................................................... 37

Larry A. Hammond: Prepared statement .............................................................. 43

The Honorable Patricia M. Wald: Prepared statement ........................................ 51

Louise Mushikiwabo: Prepared statement ............................................................ 65

David Stoelting on behalf of the American Bar Association: Prepared statement ...................................................................................................................... 67

APPENDIX 

The Honorable Christopher H. Smith, a Representative in Congress from 

the State of New Jersey: Prepared statement ................................................... 79

The Honorable Cynthia A. McKinney, a Representative in Congress from 

the State of Georgia: Prepared statement ......................................................... 80

The Honorable Ron Paul, a Representative in Congress from the State of 

Texas: Prepared statement .................................................................................. 82

(1)

MARKUP ON A RESOLUTION URGING THE GOVERNMENT OF UKRAINE TO ENSURE A DEMOCRATIC, TRANSPARENT, AND FAIR ELECTION 

PROCESS LEADING UP TO THE UPCOMING PARLIAMENTARY ELECTIONS; AND HEARING ENTITLED ‘‘THE U.N. CRIMINAL TRIBUNALS FOR 

YUGOSLAVIA AND RWANDA: INTERNATIONAL 

JUSTICE OR SHOW OF JUSTICE?’’

THURSDAY, FEBRUARY 28, 2002

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON INTERNATIONAL RELATIONS, 

Washington, DC. 

The Committee met, pursuant to call, at 11:20 a.m. in Room 

2172, Rayburn House Office Building, Hon. Henry Hyde (Chairman 

of the Committee) presiding. 

Chairman HYDE. If we could come to order, please. 

We have the pleasant task of introducing a new Member to the 

Committee, and it is a great pleasure to welcome Representative 

Mark Green of the State of Wisconsin. 

Mark attended the University of Wisconsin, Eau Clare; received 

his law degree from the University of Wisconsin Law School at 

Madison. He served in the Wisconsin State Assembly for 6 years. 

He and his wife Sue have three wonderful children. 

Mark, we all welcome you to the Committee and look forward to 

your contributions. 

[Applause.] 

Mr. GREEN. Mr. Chairman, it is a great honor indeed. I look forward to working with you and all the Members of the Committee. 

It is a real honor to join this Committee. 

Mr. LANTOS. Mr. Chairman. 

Chairman HYDE. Mr. Lantos. 

Mr. LANTOS. May I just add from the Democratic side a warm 

welcome to a new colleague. We are delighted to have you. 

Mr. GREEN. Thank you, Mr. Lantos. Thank you. 

Chairman HYDE. By direction of the Republican Conference of 

the Committee, I have a motion at the desk which I will ask Ms. 

Bloomer to read. 

Ms. BLOOMER. Mr. Hyde moves that Mr. Green be assigned to 

the Subcommittee on East Asia and the Pacific, and the Subcommittee on Europe. 

Chairman HYDE. Without objection, the motion is agreed to. 

Pursuant to notice, I now call up H. Res. 339, relating to the upcoming election in the Ukraine. 

2

[The resolution, H. Res. 339, and the amendment in the nature 

of a substitute follow:]

3

1

IV

107TH CONGRESS

2D SESSION H. RES. 339

Urging the Government of Ukraine to ensure a democratic, transparent,

and fair election process leading up to the March 31, 2002, parliamentary

elections.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 29, 2002

Ms. SLAUGHTER (for herself, Mr. HOEFFEL, and Mr. SMITH of New Jersey)

submitted the following resolution; which was referred to the Committee

on International Relations

RESOLUTION

Urging the Government of Ukraine to ensure a democratic,

transparent, and fair election process leading up to the

March 31, 2002, parliamentary elections.

Whereas Ukraine stands at a critical point in its development

to a fully democratic society, and the parliamentary elections on March 31, 2002, its third parliamentary elections since becoming independent more than 10 years

ago, will play a significant role in demonstrating whether

Ukraine continues to proceed on the path to democracy

or experiences further setbacks in its democratic development;

Whereas the Government of Ukraine can demonstrate its

commitment to democracy by conducting a genuinely free

and fair parliamentary election process, in which all canVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL

f0228.AAB
4

2

•HRES 339 IH

didates have access to news outlets in the print, radio,

television, and Internet media, and nationally televised

debates are held, thus enabling the various political parties and election blocs to compete on a level playing field

and the voters to acquire objective information about the

candidates;

Whereas a flawed election process, which contravenes commitments of the Organization for Security and Cooperation in Europe (OSCE) on democracy and the conduct of

elections, could potentially slow Ukraine’s efforts to integrate into western institutions;

Whereas in recent years, government corruption and harassment of the media have raised concerns about the commitment of the Government of Ukraine to democracy,

human rights, and the rule of law, while calling into

question the ability of that government to conduct free

and fair elections;

Whereas Ukraine, since its independence in 1991, has been

one of the largest recipients of United States foreign assistance;

Whereas $154,000,000 in technical assistance to Ukraine was

provided under Public Law 107–115 (the Kenneth M.

Ludden Foreign Operations, Export Financing, and Related Programs Appropriations Act, Fiscal Year 2002), a

$16,000,000 reduction in funding from the previous fiscal year due to concerns about continuing setbacks to

needed reform and the unresolved deaths of prominent

dissidents and journalists;

Whereas Public Law 107–115 requires a report by the Department of State on the progress by the Government of


f0228.AAC
5

3

•HRES 339 IH

Ukraine in investigating and bringing to justice individuals responsible for the murders of Ukrainian journalists;

Whereas the disappearance and murder of journalist Heorhiy

Gongadze on September 16, 2000, remains unresolved;

Whereas the presidential election of 1999, according to the

final report of the Office of Democratic Institutions and

Human Rights (ODIHR) of OSCE on that election, was

marred by violations of Ukrainian election law and failed

to meet a significant number of commitments on democracy and the conduct of elections included in the OSCE

1990 Copenhagen Document;

Whereas during the 1999 presidential election campaign, a

heavy proincumbent bias was prevalent among the stateowned media outlets, members of the media viewed as not

in support of the president were subject to harassment by

government authorities, and proincumbent campaigning

by state administration and public officials was widespread and systematic;

Whereas the Law on Elections of People’s Deputies of

Ukraine, signed by President Leonid Kuchma on October

30, 2001, was cited in a report of the ODIHR dated November 26, 2001, as making improvements in Ukraine’s

electoral code and providing safeguards to meet

Ukraine’s commitments on democratic elections, although

the Law on Elections remains flawed in a number of important respects, notably by not including a role for domestic nongovernmental organizations to monitor elections;

Whereas according to international media experts, the Law

on Elections defines the conduct of an election campaign


f0228.AAD
6

4

•HRES 339 IH

in an ambiguous manner and could lead to arbitrary

sanctions against media operating in Ukraine;

Whereas the Ukrainian Parliament (Verkhovna Rada) on December 13, 2001, rejected a draft Law on Political Advertising and Agitation, which would have limited free

speech in the campaign period by giving too many discretionary powers to government bodies, and posed a serious

threat to the independent media;

Whereas the Department of State has dedicated $4,700,000

in support of monitoring and assistance programs for the

2002 parliamentary elections;

Whereas the process for the 2002 parliamentary elections has

reportedly been affected by apparent violations during the

period prior to the official start of the election campaign

on January 1, 2002;

Whereas monthly reports for November and December of

2001 released by the Committee on Voters of Ukraine

(CVU), an indigenous, nonpartisan, nongovernment organization that was established in 1994 to monitor the conduct of national election campaigns and balloting in

Ukraine, cited five major types of violations of political

rights and freedoms during the precampaign phase of the

parliamentary elections, including—

(1) use of government position to support particular

political groups;

(2) government pressure on the opposition and on

the independent media;

(3) free goods and services given in order to sway

voters;

(4) coercion to join political parties and pressure to

contribute to election campaigns; and


f0228.AAE
7

5

•HRES 339 IH

(5) distribution of anonymous and compromising information about political opponents:

Now, therefore, be it

1 Resolved, That the House of Representatives—

2 (1) acknowledges the strong relationship be3 tween the United States and Ukraine since

4 Ukraine’s independence more than 10 years ago,

5 while understanding that Ukraine can only become

6 a full partner in western institutions when it fully

7 embraces democratic principles;

8 (2) expresses its support for the efforts of the

9 Ukrainian people to promote democracy, the rule of

10 law, and respect for human rights in Ukraine;

11 (3) urges the Government of Ukraine to enforce

12 impartially the new election law, including provisions

13 calling for—

14 (A) the transparency of election proce15 dures;

16 (B) access for international election ob17 servers;

18 (C) multiparty representation on election

19 commissions;

20 (D) equal access to the media for all elec21 tion participants;

22 (E) an appeals process for electoral com23 missions and within the court system; and


f0228.AAF
8

6

•HRES 339 IH

1 (F) administrative penalties for election

2 violations;

3 (4) urges the Government of Ukraine to meet

4 its commitments on democratic elections, as delin5 eated in the 1990 Copenhagen Document of the Or6 ganization for Security and Cooperation in Europe

7 (OSCE), with respect to the campaign period and

8 election day, and to address issues identified by the

9 Office of Democratic Institutions and Human Rights

10 (ODIHR) of OSCE in its final report on the 1999

11 presidential election, such as state interference in

12 the campaign and pressure on the media; and

13 (5) calls upon the Government of Ukraine to

14 allow election monitors from the ODIHR, other par15 ticipating states of OSCE, and private institutions

16 and organizations, both foreign and domestic, full

17 access to all aspects of the parliamentary election

18 process, including—

19 (A) access to political events attended by

20 the public during the campaign period;

21 (B) access to voting and counting proce22 dures at polling stations and electoral commis23 sion meetings on election day, including proce24 dures to release election results on a precinct by

25 precinct basis as they become available; and


f0228.AAG
9

7

•HRES 339 IH

1 (C) access to postelection tabulation of re2 sults and processing of election challenges and

3 complaints.

Æ


f0228.AAH
10

1

H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H. RES. 339

AS REPORTED BY THE SUBCOMMITTEE ON

EUROPE

Strike the preamble and text of the resolution and

insert the following:

Whereas Ukraine stands at a critical point in its development

to a fully democratic society, and the parliamentary elections on March 31, 2002, its third parliamentary elections since becoming independent more than 10 years

ago, will play a significant role in demonstrating whether

Ukraine continues to proceed on the path to democracy

or experiences setbacks in its democratic development;

Whereas the Government of Ukraine can demonstrate its

commitment to democracy by conducting a genuinely free

and fair parliamentary election process, in which all candidates have access to news outlets in the print, radio,

television, and Internet media, and nationally televised

debates are held, thus enabling the various political parties and election blocs to compete on a level playing field

and the voters to acquire objective information about the

candidates;

Whereas a flawed election process, which contravenes commitments of the Organization for Security and Cooperation in Europe (OSCE) on democracy and the conduct of

elections, could potentially slow Ukraine’s efforts to integrate into western institutions;

Whereas in recent years, incidents of government corruption

and harassment of the media have raised concerns about


022702.AAB
11

2

H.L.C.

the commitment of the Government of Ukraine to democracy, human rights, and the rule of law;

Whereas Ukraine, since its independence in 1991, has been

one of the largest recipients of United States foreign assistance;

Whereas $154,000,000 in technical assistance to Ukraine was

provided under Public Law 107–115 (the Kenneth M.

Ludden Foreign Operations, Export Financing, and Related Programs Appropriations Act, Fiscal Year 2002), a

$16,000,000 reduction in funding from the previous fiscal year due to concerns about continuing setbacks to

needed reform and the unresolved deaths of prominent

dissidents and journalists;

Whereas the presidential election of 1999, according to the

final report of the Office of Democratic Institutions and

Human Rights (ODIHR) of OSCE on that election, was

marred by violations of Ukrainian election law and failed

to meet a number of commitments on democracy and the

conduct of elections included in the OSCE 1990 Copenhagen Document;

Whereas during the 1999 presidential election campaign, a

heavy proincumbent bias was prevalent among the stateowned media outlets, members of the media viewed as not

in support of the president were subject to harassment by

government authorities, and proincumbent campaigning

by state administration and public officials was widespread;

Whereas the Law on Elections of People’s Deputies of

Ukraine, signed by President Leonid Kuchma on October

30, 2001, which was cited in a report of the ODIHR

dated November 26, 2001, as making improvements in


022702.AAC
12

3

H.L.C.

Ukraine’s electoral code and providing safeguards to

meet Ukraine’s commitments on democratic elections,

does not include a role for domestic nongovernmental organizations to monitor elections;

Whereas according to international media experts, the Law

on Elections defines the conduct of an election campaign

in an imprecise manner which could lead to arbitrary

sanctions against media operating in Ukraine;

Whereas the Ukrainian Parliament (Verkhovna Rada) on December 13, 2001, rejected a draft Law on Political Advertising and Agitation, which would have limited free

speech in the campaign period by giving too many discretionary powers to government bodies, and posed a serious

threat to the independent media;

Whereas the Department of State has dedicated $4,700,000

in support of monitoring and assistance programs for the

2002 parliamentary elections;

Whereas the process for the 2002 parliamentary elections has

reportedly been affected by violations by many parties

during the period prior to the official start of the election

campaign on January 1, 2002; and

Whereas monthly reports for November and December of

2001 released by the Committee on Voters of Ukraine

(CVU), an indigenous, nonpartisan, nongovernment organization that was established in 1994 to monitor the conduct of national election campaigns and balloting in

Ukraine, cited five major types of violations of political

rights and freedoms during the precampaign phase of the

parliamentary elections, including—

(1) use of government position to support particular

political groups;


022702.AAD
13

4

H.L.C.

(2) government pressure on the opposition and on

the independent media;

(3) free goods and services given by many political

groups in order to sway voters;

(4) coercion to join political parties and pressure to

contribute to election campaigns; and

(5) distribution of anonymous and compromising information about political opponents:

Now, therefore, be it

1 Resolved, That the House of Representatives—

2 (1) acknowledges the strong relationship be3 tween the United States and Ukraine since

4 Ukraine’s independence more than 10 years ago,

5 while understanding that Ukraine can only become

6 a full partner in western institutions when it fully

7 embraces democratic principles;

8 (2) expresses its support for the efforts of the

9 Ukrainian people to promote democracy, the rule of

10 law, and respect for human rights in Ukraine;

11 (3) urges the Government of Ukraine to enforce

12 impartially its newly adopted election law, including

13 provisions calling for—

14 (A) the transparency of election proce15 dures;

16 (B) access for international election ob17 servers;


022702.AAE
14

5

H.L.C.

1 (C) multiparty representation on election

2 commissions;

3 (D) equal access to the media for all elec4 tion participants;

5 (E) an appeals process for electoral com6 missions and within the court system; and

7 (F) administrative penalties for election

8 violations;

9 (4) urges the Government of Ukraine to meet

10 its commitments on democratic elections, as delin11 eated in the 1990 Copenhagen Document of the Or12 ganization for Security and Cooperation in Europe

13 (OSCE), with respect to the campaign period and

14 election day, and to address issues identified by the

15 Office of Democratic Institutions and Human Rights

16 (ODIHR) of OSCE in its final report on the 1999

17 presidential election, such as state interference in

18 the campaign and pressure on the media; and

19 (5) calls upon the Government of Ukraine to

20 allow election monitors from the ODIHR, other par21 ticipating states of OSCE, and private institutions

22 and organizations, both foreign and domestic, access

23 to all aspects of the parliamentary election process

24 according to international practices, including—


022702.AAF
15

6

H.L.C.

1 (A) access to political events attended by

2 the public during the campaign period;

3 (B) access to observe voting and counting

4 procedures at polling stations and electoral

5 commission meetings on election day, including

6 procedures to release election results on a dis7 trict-by-district basis as they become available;

8 and

9 (C) access to observe postelection tabula10 tion of results and processing of election chal11 lenges and complaints.


022702.AAG
16

Chairman HYDE. Without objection, the Chair is authorized to 

obtain the consideration of the resolution, H. Res. 339, as amended, 

by the Subcommittee on Europe on the suspension calendar at the 

next available opportunity. 

The Committee meeting stands adjourned, and the Committee 

now convenes for its noticed hearing. 

[Whereupon, at 11:21 a.m., the Committee was adjourned.] 

The Committee met, pursuant to call, at 11:21 a.m. in Room 

2172, Rayburn House Office Building, Hon. Henry Hyde (Chairman 

of the Committee) presiding. 

Chairman HYDE. The Committee will now convene for its noticed 

hearing. 

However, before proceeding to the Committee hearing, I would 

like to take this opportunity to advise the Members that tomorrow 

will the end of an era for this Committee. Nancy Bloomer, whose 

warm smile, dedication to the work of the Committee and professionalism have been a major asset to the Congress, will be moving 

on after more than 26 years of loyal service. I think she started 

here when she was 7 years old. [Laughter.] Not only are we going 

to miss a wealth of her institutional knowledge about the Committee and the House, we will miss her kindness and her effectiveness. 

I cannot be sad because I know she is moving on to a splendid 

opportunity in the private sector, and she will continue to do the 

Lord’s work. So we wish her God speed, and I know I speak for the 

entire Committee when I give her my sincere thanks for a splendid 

job and very well done. 

[Applause.] 

Mr. LANTOS. Mr. Chairman. 

Chairman HYDE. Mr. Lantos. 

Mr. LANTOS. Just as a point of order, if in fact she has been with 

the Committee for 26 years, I would like all of my colleagues to join 

me in child labor legislation which will prevent such atrocities from 

occurring in the future. 

Thank you, Mr. Chairman. 

[Laughter.] 

[Applause.] 

Chairman HYDE. We will now adjourn the meeting and will commence the hearing. 

The International Criminal Tribunals for the former Yugoslavia 

and for Rwanda were established 8 years ago to bring to justice 

perpetrators of genocide, war crimes and crimes against humanity 

in the former Yugoslavia and Rwanda. These tribunals have enjoyed the strong support of the United States Congress and the 

United States Government. 

The Yugoslavia tribunal alone has received approximately $20 

million over the years in voluntary contributions from the United 

States—that is to say, contributions above and beyond what we 

have been required to contribute to the tribunal. And those required U.S. contributions have also been substantial, currently almost $25 million per year for the Yugoslavia tribunal and almost 

as much for the Rwanda tribunal. 

In addition, we have detailed to them some of our finest government lawyers, including our witness today from the Department of 

17

State, Ambassador Prosper, as well as criminal investigators and 

other experts. 

Eight years into this exercise I thought it appropriate to convene 

this hearing to assess how well the tribunals are doing, and I have 

to say that in preparing for this hearing I have learned of some 

very unexpected problems. 

We all know that in one of those strange turns of fate, the principal victims of the Rwandan genocide, the Tutsis, wound up in 

charge of the new government of that country. I would have expected the Tutsi government of Rwanda to be the strongest supporter anywhere of an international tribunal created to punish 

those who killed almost one million of their fellow Tutsis, but nothing could be farther from the truth. 

Apparently relations between the Rwandan government and the 

Rwandan tribunal have ranged from frosty to hostile over the 

years. This is a great mystery to me and suggests that something 

is not as it should be with this tribunal. 

In the case of the Yugoslav tribunal, we are all pleased that 

former Serbian President Slobodan Milosevic is now on trial for the 

crimes he appears to have committed. But serious questions have 

been asked about whether we helped or hindered the democratic 

evolution of Serbia by bringing Milosevic before the tribunal in the 

way we did. 

And while we an our allies signaled a willingness to let democracy collapse in Serbia if Milosevic was not extradited, we have not 

been willing to run any risks ourselves to capture certain other 

well known indicted war criminals in Bosnia, where we have both 

the capability and the legal authority to arrest them. 

I realize it is not fair to criticize the Yugoslav tribunal for decisions that have been made in Washington and other Western capitals, but I believe these inconsistencies are manifestations of an 

underlying problem. The Yugoslavia tribunal exists for a single 

purpose, and that is to dispense justice. 

Our interests in the former Yugoslavia go well beyond justice, 

however, to include peace, stability, national reconciliation and 

democratic development. The Yugoslav and Rwandan tribunals are 

the international embodiment of that slogan we often see on bumper stickers, ‘‘No peace without justice.’’ The problem is that this slogan is demonstrably untrue. To see that this is so, we need only 

to look at the situation today in such post-conflict societies as 

South Africa and El Salvador, where peace was restored not by 

prosecutors seeking to punish wrongdoers, but by truth and reconciliation commissions and general amnesties. 

There are many other issues that I hope we can touch on today, 

such as whether the Yugoslavia tribunal has jurisdiction to prosecute Americans for our military actions in Kosovo in 1999; whether the tribunals could be better managed; and the degree to which 

political considerations have colored prosecutorial and judicial decision-making within the tribunals. 

Finally, I think it might be interesting to explore the question of 

why the United Nations is not seriously considering establishing 

similar tribunals to address war crimes in countries like Cambodia, 

Sierra Leone, and East Timor, and what that tells us about the 

perceived success of the two existing tribunals. 

18

But I will stop here, and am pleased to recognize our Ranking 

Member, Mr. Lantos, for any opening comments he may have. 

Mr. Lantos. 

Mr. LANTOS. Thank you very much, Mr. Chairman, and as always I find myself in strong agreement with many of the points 

you have just raised. 

I want to thank you for scheduling this hearing on questions on 

how to bring perpetrators of genocide crimes against humanity and 

gross human rights violators to justice. 

Mr. Chairman, the last century saw the most awful violations of 

human rights on a scale unknown in human history. As a witness 

to the holocaust at close range, I saw one of the darkest moments 

of mankind. Yet to the shame of all civilized people we did not 

learn from that horrendous experience and gross violations of 

human rights continue throughout the rest of the twentieth century and into this one. 

In Rwanda, ethnic violence led to mass slaughter of over half a 

million to a million people and triggered a regional conflict that has 

yet to subside. 

In the former Yugoslavia, ethic cleansing claimed hundreds of 

thousands of lives and led to as many as a million displaced persons. 

During East Timor’s occupation, the Indonesian military and 

their local militias may have killed hundreds of thousands of citizens, destroyed as much as 80 percent of that embryonic country’s 

infrastructure. 

And in Sierra Leone, a brutal civil war triggered horrible human 

rights abuses, leaving thousands dead and many more thousands 

of innocents maimed. 

Tragically, many of these abuses were committed by young people brainwashed into perpetrating these dreadful crimes. 

And in our own country, Mr. Chairman, suicide terrorists have 

snuffed out the lives of innocents from around the world whose 

only mistake was to be at the wrong place at the wrong time. 

In this new century, I believe, Mr. Chairman, we must find ways 

to prevent yet more repetitions of these manmade disasters. Part 

of the answer is diplomatic or military intervention by the international community to prevent such catastrophes from recurring. 

But part of the answer is to make sure that future perpetrators of 

similar barbaric actions know that they will be held accountable for 

their crimes. 

Mr. Chairman, the U.N. tribunals on Yugoslavia and Rwanda 

have had their share of successes. The former Prime Minister of 

Rwanda, Jean Kambanda, has been convicted of genocide, the first 

such conviction ever. And as we speak, the President of former 

Yugoslavia and then Serbia, Slobodan Milosevic, is in the dock for 

unspeakable acts that were committed to advance his lust for 

power. 

Crimes against women have been recognized as crimes against 

humanity, as they should be, and the wrongdoing of countless others has been brought to light by these institutions. 

In my mind there can be no question that this kind of international justice has an important role to play in the 21st century, 

particularly in cases of failed states and in post-conflict states 

19

where national institutions and the political culture are incapable 

of establishing accountability. 

I want to repeat this, Mr. Chairman, because I think it is so important for us living in a society under laws where it is so difficult 

to envision societies where there is no legal framework. I believe 

that international justice has an important role to play in our century, particularly in cases of failed states and in post-conflict states 

where national institutions and the political culture are incapable 

of establishing accountability. 

However, we have learned much since the Yugoslav tribunal was 

established 8 years ago. We need to improve the current tribunals 

and make sure that any future tribunals do not make the same 

mistakes. We should also be prepared to experiment with so-called 

mixed tribunals that combine international and national justice. 

Indeed, tribunals in Sierra Leone and Cambodia may help those 

countries develop their shattered judicial institutions and help 

pave the way for the rule of law. 

Finally, with great respect and great affection, Mr. Chairman, I 

believe I must mention the elephant in this room that many may 

not want to talk about, the International Criminal Court. Mr. 

Chairman, I know that you are strongly opposed to the establishment of that institution, and I deeply respect your opinion on that 

matter. But it is clear to me that the International Criminal Court 

is going to become a reality and it will become a reality soon. I 

hope that this hearing will help also for us to understand what 

mistakes need to be avoided as that institution comes into being. 

Thank you very much. 

Chairman HYDE. Thank you very much, Mr. Lantos. 

Without objection, any Member who wishes to insert an opening 

statement into the record may do so at this point or at a subsequent point. 

Before I introduce our distinguished witness, I would like to remark to the Committee. One of the most difficult jobs in Congress 

is chairing a Committee, a large Committee with a limited amount 

of time, with Members of less seniority who get no opportunity to 

ask questions, hearing after hearing after hearing. 

I am intimately familiar with that because I spent 20 years in 

the Minority, and I resented it, and there are Members of this 

Committee who resent not being given the opportunity. I do not 

know how else to do it fairly. We do it by seniority, seniority ought 

to account for something. We do it by when you get here to the 

meeting, and if a lot come at the same time we then look at seniority. But there has never been an effort or attempt on my part to 

foreclose anybody from asking questions. 

Some of you may think otherwise, some of you may even think 

there is a conspiracy to deprive you of the opportunity to launch 

your incisive questions. Not so. I do not even ask questions myself 

so we have more time for the Members to ask questions, but the 

Members do not adhere to the 5-minute rule. And I have been less 

strict than I ought to be in imposing that. I should follow the rules. 

But Members make long speeches and then ask 12 hard questions 

when their time is reduced down to a thirtieth of a second, and of 

course the witness wants to answer the question, and witnesses 

from witness to witness are more prolix than others. And so someVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
20

one instead of taking 5 minutes takes 35 minutes, and other people 

are shortchanged. 

So I am going to strictly enforce the 5-minute rule, giving a little 

flexibility to my friend Tom Lantos because he is so cooperative, 

but I am just pleading with you to ask questions. If you do not 

want to ask questions, make a statement. Do whatever you want 

to do with your 5 minutes, but give somebody else a chance to ask 

their questions too. But there is no plan or plot to deprive less senior Members from an opportunity to ask questions. 

Mr. LANTOS. Mr. Chairman. 

Chairman HYDE. Yes, sir. 

Mr. LANTOS. Mr. Chairman, may I just say on behalf of Democrats on the Committee that you have handled your job as Chairman with extraordinary fairness and objectivity, and wonderful 

humor, and we on our side have no complaints whatsoever. 

Chairman HYDE. Well, I thank you very much. 

Now I am very pleased to introduce our distinguished witnesses 

today. We welcome Pierre-Richard Prosper, who was appointed by 

President Bush in July of 2001 to be U.S. Ambassador-at-Large for 

War Crimes Issues, where he advises the Secretary of State on 

U.S. efforts to address serious violations of international humanitarian law, including genocide, crimes against humanity, war 

crimes committed in areas of conflict throughout the world. He also 

coordinates U.S. support for the International Criminal Tribunals 

for the former Yugoslavia and Rwanda, and assists in the creation 

and operation of other mechanisms to bring violators of international humanitarian law to justice. 

Ambassador Prosper has served for several years with the prior 

Ambassador-at-Large, covering war crimes issues in the State Department, where he was detailed from the Criminal Division of the 

Department of Justice. He also served as war crimes prosecutor for 

the United Nations International Criminal Tribunal for Rwanda, 

where he won significant cases for the prosecution. 

Ambassador Prosper has worked in narcotics and drug enforcement on an international basis and has been a U.S. attorney and 

deputy district attorney in California. He was born in Denver, Colorado, and graduated from Boston College and the Pepperdyne University School of Law. He has received distinguished alumnus 

awards and others from Pepperdyne University, Harvard Law 

School and Boston College. 

We welcome you to the Committee, Mr. Ambassador. And as you 

begin your testimony, I would ask that you take about 5 minutes 

to summarize your opening remarks, as your full written statement 

will be included in the record. 

Please proceed. 

STATEMENT OF THE HONORABLE PIERRE-RICHARD PROSPER, AMBASSADOR-AT-LARGE FOR WAR CRIMES ISSUES, U.S. 

DEPARTMENT OF STATE 

Ambassador PROSPER. Thank you, Mr. Chairman, Members of 

the Committee. I thank you for this opportunity to discuss the 

work of the United Nations International Criminal Tribunals for 

Yugoslavia and Rwanda. This hearing comes at an important time 

in the history of the two tribunals which have been in existence 

21

since the early nineties. It also comes at a time when the world is 

making dramatic advances in achieving accountability for grave 

atrocities and war crimes. 

Leaders throughout the world can no longer expect to employ 

their might ruthlessly and remain above the reach of the law. And 

citizens worldwide are starting to feel that they are no longer at 

the mercy of forces of brutality or that justice is nothing more than 

an unattainable abstraction. States that protect human rights and 

guard against war crimes are now becoming the norm. The rule of 

law is beginning to prevail over evil. 

Nowhere is this more evidence than today in Trial Chamber III 

in The Hague. Slobodan Milosevic, who only a year and a half ago 

was the President of the Federal Republic of Yugoslavia, is now answering for his actions. The examination of his individual responsibility will hopefully remove any misperception of collective guilt of 

law-abiding Serbs. The rule of law is also strengthened by the 

trials in Arusha, Tanzania where the first-ever judgment for genocide was handed down and where a former head of state pled guilty 

for his part in the massacres. 

The United States remains proud of its leadership in supporting 

the two ad hoc tribunals and will continue to do so in the future. 

Their work is important and has greatly contributed to justice for 

the victims of war crimes and to ending impunity for those who 

would orchestrate and commit genocide. 

To date, the International Criminal Tribunal for the former 

Yugoslavia has indicted 117 persons, 67 persons have been brought 

into custody, 26 have been convicted, five acquitted, 11 are currently standing trial, and one is awaiting judgment. At the International Criminal Tribunal for Rwanda, 76 have been indicted, 57 

have been brought into custody, eight have been convicted, one acquitted, and 17 are currently on trial. 

These efforts show that the tribunals are on the path to success. 

However, despite these achievements, we recognize that there have 

been problems that challenge the integrity of the process. 

In both tribunals, at times, the professionalism of some of the 

personnel has been called into question with allegations of mismanagement and abuse. In both tribunals, the process, at times, 

has been costly, lacked efficiency, has been too slow, and has been 

too removed from the everyday experience of the people and the 

victims. 

To address these abuses, we have aggressively engaged both the 

United Nations in New York and directly with the tribunals. This 

engagement is producing results. We are now seeing the U.N. 

headquarters and the tribunals taking action to remedy these 

wrongs. 

The U.N.’s Office of Internal Oversight Service has launched an 

investigation and will issue a report this spring. We successfully 

obtained approval for on-site auditors at both tribunals last fall 

and expect them to be in place shortly. Additionally, the tribunal 

for Rwanda is ahead of her sister tribunal and has taken steps to 

cure a problem that has plagued both tribunals, and that is feesplitting. 

With new rules in place, the tribunal for Rwanda has ongoing efforts to investigate abuses. Just recently, on February 6, the triVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
22

bunal dismissed a Scottish defense attorney after evidence of 

abuses were found and reported him to his home bar association 

for disciplinary action. 

Mr. Chairman, Members of the Committee, the goal of this Administration is to see the tribunals reach a successful conclusion. 

That means the tribunals need to remain within the spirit of the 

founding resolutions and pursue those who bear the greatest responsibility. We recognize that the tribunals were not established 

to judge each and every violation of law that occurred during the 

conflict. And they were not designed to completely usurp the authority and, more importantly, the responsibility of sovereign 

states. In establishing these organs, the Security Council clearly 

envisioned the shared responsibility of local governments to adjudicate some of these serious violations. And it is this shared responsibility that will lead us to the successful conclusion we seek. 

As a result, this Administration is calling for action. We have 

and are urging both tribunals to aggressively begin to focus on the 

end-game and conclude their work by 2007 or 2008, a time frame 

we have stressed and to which officials from both tribunals have 

referred. 

We are calling on the regional states to do their part: to cooperate fully with the tribunals’ investigation and prosecutions. We are 

aggressively engaging the Federal Republic of Yugoslavia, BosniaHerzegovina, and Croatia at the highest levels to remind them of 

their international obligations to transfer all at-large indictees to 

The Hague. This is an obligation that must be honored. It is an obligation that must be fulfilled. 

Not until accused architects of genocide such as Radovan 

Karadzic and Ratko Mladic go to The Hague will we be at the doorstop of normalization in the Balkans. These individuals cannot outwait the pursuit of justice and will not remain beyond the reach 

of the law. We have the requisite patience and are committed to 

holding them to answer before the tribunal. 

We are engaging the government of the Democratic Republic of 

the Congo and other states. We are pressing for the genocidaires 

wanted for the 1994 massacres in Rwanda to be apprehended and 

transferred to the U.N. Tribunal. Not until these organizers are 

brought to justice will peace in the Great Lakes region of Africa 

begin to take hold and a true healing process begin. 

We are soliciting our allies to enlist them in this cause. We have 

restated our commitment and determination to use the breadth of 

means at the disposal of the United States Government to see the 

indictees of both of these tribunals brought to justice in a timely 

fashion. 

We are also pressing the governments in the former Yugoslavia 

to accept their responsibility, and are working with the government 

in Rwanda to hold accountable the mid and lower level perpetrators. The lower level perpetrators in both of these regions do not 

get a free pass. We do not want to see an abandonment of the 

state’s responsibility and are encouraging appropriate domestic judicial and administrative action. 

The United States stands prepared to assist the states in rebuilding their shattered judicial systems to make them capable of dispensing truth-based justice and establishing systematic respect for 

23

the rule of law. As part of this commitment, we are jointly exploring creative approaches such as the Rwandan gacaca system that 

is designed to deal with the seemingly untouchable mass of offenders. 

Mr. Chairman, in your letter requesting me to testify on these 

matters you asked me to address the future of these efforts. Since 

taking post as Ambassador-at-Large for war crimes issues I have 

often been asked what kind of future we see. I have been asked 

whether the events of September 11th have changed our view toward the permanent International Criminal Court—it has not. 

As with the previous Administration, we oppose the Rome treaty 

and will not send it to the United States Senate for advice and consent to ratification. We are steadfast in our belief that the United 

States cannot support a court that lacks the essential safeguards 

to avoid a politicization of justice. 

We believe that the ICC treaty is just that, a treaty, and it 

should not have jurisdiction over a non-party state. This does not 

mean that we intend to forego our historical position of leadership 

in pursuing accountability and justice on the world stage. 

We will continue to seek a world where every state fulfills its responsibility to safeguard the law. When war crimes do occur, we 

look first to a state’s domestic system for action. We believe, as I 

testified before the United States Senate Committee on the Judiciary last fall, that:

‘‘The international practice should be to support sovereign 

states seeking justice domestically when it is feasible and 

would be credible, as we are trying to do in Sierra Leone and 

Cambodia. International tribunals are not and should not be 

the courts of first redress, but of last resort. When domestic 

justice is not possible for egregious war crimes due to a failed 

state or a dysfunctional judicial system, the international community may step in through the Security Council or by way of 

consent on an ad hoc basis . . . Our goal should be and this 

Administration’s policy is to encourage states to pursue credible justice rather than abdicating their responsibility. Because 

justice and the Administration of justice are a cornerstone of 

any democracy, pursuing accountability for war crimes while 

respecting the rule of law by a sovereign state must be encouraged at all times.’’

In the years ahead, the United States will continue to lead the 

fight to end impunity for genocide and crimes against humanity. 

We will help create the necessary political will. We will continue 

to seek to bring justice as close as feasibly and credibly possible to 

the victims in order to create a sense of ownership and involvement. We will work with the Rwanda and Yugoslavia tribunals, the 

Special Court for Sierra Leone, and elsewhere, and we will stress 

that all parties have a responsibility on this road to justice. 

For this noble cause to be successful, for justice to endure, the 

international community, the tribunals, and the regional states 

must coordinate, accept their role and individual responsibility, and 

go down this arduous road together. 

With our strong support of these efforts, we will continue to overcome obstacles, achieve accountability for the perpetrators, and seVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
24

cure the rule of law. In passing milestones and creating an environment where there is not a dependency on international mechanisms, we will bring justice to the victims and restore confidence 

in domestic institutions in societies throughout the world. 

I thank you and I am available for your questions. 

[The prepared statement of Ambassador Prosper follows:]

PREPARED STATEMENT OF THE HONORABLE PIERRE-RICHARD PROSPER, AMBASSADOR- AT-LARGE FOR WAR CRIMES ISSUES, U.S. DEPARTMENT OF STATE

Mr. Chairman, members of the committee, I thank you for this opportunity to discuss the work of the United Nations International Criminal Tribunals for Rwanda 

and the Former Yugoslavia. This hearing comes at an important time in the history 

of the two Tribunals which have been in existence since the early nineties. This 

hearing also comes at a time when the world is making dramatic advances in 

achieving accountability for grave atrocities and war crimes. 

Leaders throughout the world can no longer expect to employ their might ruthlessly and remain above the reach of the law. And citizens worldwide are starting 

to feel that they are no longer at the mercy of forces of brutality, or that justice 

is nothing more than an unattainable abstraction. States that protect human rights 

and guard against war criminals are now becoming the norm. The rule of law is 

beginning to prevail over evil. 

Nowhere is this more evident than today in Trial Chamber III in The Hague. 

Slobodan Milosevic, who only a year and a half ago was president of the Federal 

Republic of Yugoslavia, is now answering for his actions. The examination of his individual responsibility will hopefully remove any misperception of collective guilt of 

law-abiding Serbs. The rule of law is also strengthened by the trials in Arusha, Tanzania where the first-ever judgment for genocide was handed down and where a 

former head of state plead guilty for his part in the massacres. 

The United States remains proud of its leadership in supporting the two ad hoc 

Tribunals and will continue to do so in the future. Their work is important and has 

greatly contributed to justice for the victims of war crimes and to ending impunity 

for those who would orchestrate and commit genocide. To date, at the International 

Criminal Tribunal for the former Yugoslavia 117 have been indicted, 67 persons 

have been brought into custody, 26 have been convicted, 5 acquitted, 11 are currently standing trial, and one is awaiting the judgment of the court. At the International Criminal Tribunal for Rwanda, 76 have been indicted, 57 have been 

brought into custody, 8 have been convicted, one acquitted, and 17 are currently on 

trial. 

These efforts show that the Tribunals are on the path to success. However, despite these achievements, we recognize that there have been problems that challenge the integrity of the process. In both Tribunals, at times, the professionalism 

of some of the personnel has been called into question with allegations of mismanagement and abuse. And in both Tribunals, the process, at times, has been costly, has lacked efficiency, has been too slow, and has been too removed from the everyday experience of the people and the victims. 

To address these abuses, we aggressively engage both with the United Nations 

in New York and directly with the Tribunals. This engagement is producing results. 

We are now seeing the UN headquarters and the Tribunals taking action to remedy 

these wrongs. The UN’s Office of Internal Oversight Services has launched an investigation and will issue a report this spring. We successfully obtained approval for 

on-site auditors at both Tribunals last fall and expect them to be in place shortly. 

Additionally, the Tribunal for Rwanda is ahead of her sister Tribunal and has taken 

steps to cure a problem that has plagued both Tribunals: fee-splitting. 

With new rules in place, the Tribunal for Rwanda has ongoing efforts to investigate abuses. Just recently, on February 6, the Tribunal dismissed a Scottish defense attorney after evidence of abuses were found and reported him to his home 

bar association for disciplinary action. 

Mr. Chairman, the goal of this Administration is to see the Tribunals reach a successful conclusion. That means the Tribunals need to remain within the spirit of the 

founding resolutions and pursue those who bear the greatest responsibility. We recognize that the Tribunals were not established to judge each and every violation of 

law that occurred during the conflicts. And they were not designed to completely 

usurp the authority and, more importantly, the responsibility of sovereign states. In 

establishing these organs, the Security Council clearly envisioned the shared responsibility of local governments to adjudicate some of these serious violations. And 

it is this shared responsibility that will lead us to the successful conclusion we seek. 

25

As a result, this Administration is calling for action. We have and are urging both 

Tribunals to begin to aggressively focus on the end-game and conclude their work 

by 2007–2008, a timeframe that we have stressed and to which officials from both 

Tribunals have referred. 

We are calling on the regional states to do their part: to cooperate fully with the 

Tribunals’ investigations and prosecutions. We are aggressively engaging the Federal Republic of Yugoslavia, Bosnia-Herzegovina, and Croatia at the highest levels 

to remind them of their international obligation to transfer all at-large indictees to 

The Hague. This is an obligation that must be honored. It is an obligation that must 

be fulfilled. 

Not until accused architects of genocide such as Radovan Karadzic and Ratko 

Mladic go to The Hague will we be at the doorstep of normalization in the Balkans. 

These individuals cannot out-wait the pursuit of justice and will not remain beyond 

the reach of the law. We have the requisite patience and are committed to holding 

them to answer before the Tribunal. 

We are engaging the Government of the Democratic Republic of the Congo and 

other states, pressing for the genocidaires, wanted for the 1994 massacres in Rwanda, to be apprehended and transferred to the UN Tribunal. Not until these organizers are brought to justice will peace in the Great Lakes Region of Africa begin 

to take hold and a true healing process begin. 

We are soliciting our allies to enlist them in this cause. We have restated our 

commitment and determination to use the breadth of means at the disposal of the 

U.S. government to see the indictees of both of these Tribunals brought to justice 

in a timely fashion. 

We are also pressing the governments in the former Yugoslavia to accept their 

responsibility, and are working with the government in Rwanda, to hold accountable 

the mid and lower level perpetrators. The lower level perpetrators in both of these 

regions do not get a free pass. We do not want to see an abandonment of the state 

responsibility and are encouraging appropriate domestic judicial and administrative 

action. 

The United States stands prepared to assist the states in rebuilding their shattered judicial systems to make them capable of dispensing truth-based justice and 

establishing systematic respect for the rule of law. As part of this commitment, we 

are jointly exploring creative approaches such as the Rwandan gacaca system that 

is designed to deal with the seemingly untouchable mass of offenders. 

Mr. Chairman, in your letter requesting me to testify on these matters you asked 

me to address the future of these efforts. Since taking post as ambassador-at-large 

for war crimes issues I have often been asked what kind of future we see. I have 

been asked whether September 11th has changed our views toward a permanent 

International Criminal Court—it has not. 

As with the previous U.S. Administration, we oppose the Rome treaty and will 

not send it to the United States Senate for advice and consent to ratification. We 

are steadfast in our belief that the United States cannot support a court that lacks 

the essential safeguards to avoid a politicization of justice. 

We also believe that the ICC treaty is just that, a treaty. It does not and should 

not have jurisdiction over a non-party state. This does not mean that we intend to 

forgo our historical position of leadership in the pursuit of accountability and justice 

on the world stage. We remain committed. 

We will continue to seek a world where every state fulfills its responsibility to 

safeguard the law. When war crimes do occur, we look first to a state’s domestic 

system for action. We believe, as I testified last fall before the United States Senate 

Committee on the Judiciary, that:

The international practice should be to support sovereign states seeking justice 

domestically when it is feasible and would be credible, as we are trying to do 

in Sierra Leone and Cambodia. International tribunals are not and should not 

be the courts of first redress, but of last resort. When domestic justice is not 

possible for egregious war crimes due to a failed state or a dysfunctional judicial 

system, the international community may through the Security Council or by 

consent, step in on an ad hoc basis . . . Our goal should be and this Administration’s policy is to encourage states to pursue credible justice rather than abdicating the responsibility. Because justice and the administration of justice are 

a cornerstone of any democracy, pursuing accountability for war crimes while 

respecting the rule of law by a sovereign state must be encouraged at all times.

In the years ahead, the United States will continue to lead the fight to end impunity for genocide, crimes against humanity, and war crimes. We will help create the 

political will. We will continue to seek to bring justice as close as feasibly and 

credibly possible to the victims in order to create a sense of ownership and involveVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
26

ment. In our work with the Rwanda and Yugoslav Tribunals, the Special Court for 

Sierra Leone, and elsewhere, we will stress that all parties have a responsibility on 

the road to justice. 

For this noble cause to be successful, for justice to endure, the international community, the Tribunals, and the regional states must coordinate, accept their role 

and individual responsibility, and go down this arduous road together. With our 

strong support of these efforts, we will continue to overcome obstacles, achieve accountability for the perpetrators, and secure the rule of law. In passing milestones 

and creating an environment where there is not a dependency on international 

mechanisms we will bring justice to the victims and restore confidence in domestic 

institutions in societies throughout the world.

Chairman HYDE. Thank you, Ambassador. 

Mr. Lantos. 

Mr. LANTOS. Thank you very much, Mr. Chairman. 

President Bush has repeatedly stated that he will pursue the 

war against international terrorism against regimes that harbor 

international terrorists and rogue regimes like Iraq that develop 

weapons of mass destruction. And I have strongly supported him 

in this adventure and intend to do so until the last international 

terrorist cell is destroyed and the last regime is changed which 

harbors international terrorists. 

In this context, may I ask you, Mr. Ambassador, what the Administration’s policy is regarding the establishment of an international war crimes tribunal for Iraq to cover the crimes by Saddam Hussein and other Iraqi officials in both the 1980s and the 

1990s and into this century? 

One of the most horrendous images that all of us carry with us 

is a Newsweek cover of some years ago showing a group of Kurdish 

women, Iraqi citizens, and their small children in colorful clothes 

after they were gassed by Saddam Hussein and his henchmen at 

the village of Halabja. 

What specifically is the Administration doing now that we are 

talking about Iraq, Iran and North Korea as regimes that will have 

to pay the consequences of their actions in terms of terrorism, harboring terrorism, and developing weapons of mass destruction? 

What specific measures is the Administration taking now to prepare a tribunal for Saddam Hussein? 

Ambassador PROSPER. Thank you, Mr. Lantos. 

I can begin by saying that we do believe that Saddam Hussein 

and his top lieutenants, if you will, need to be held to answer for 

their actions over the last 10 years. 

Mr. LANTOS. Twenty years. 

Ambassador PROSPER. Twenty years. We do believe that there 

have been serious atrocities committed and we do believe that they 

need to be investigated. In fact, we have taken steps to collect information regarding the abuses that have occurred. 

I currently have detailed to my office two individuals who are 

specifically focused on this issue, and are collecting information, 

evidence and witness statements to be used at the appropriate 

time. 

We are in the process and we are having discussions with allies 

and friends on this matter, and we do believe that there needs to 

be a forum created to address this issue in order to hold accountable the perpetrators of these abuses. 

We also recognize and believe that in order to achieve true justice and accountability there must be a change in government in 

27

Iraq. When that occurs, and only when that occurs will true justice 

be brought to the people. So we are working hard. It is an effort 

that my office is involved in on a daily basis, and we hope to be 

able to use the information soon. 

Mr. LANTOS. Mr. Ambassador, if I understand you correctly, you 

are implying the establishment of an ad hoc tribunal to deal with 

Saddam Hussein when the time comes. Am I correct in this? 

Ambassador PROSPER. What I am stating is that we will definitely be looking for some sort of mechanism to create this, and I 

think it is difficult at this time to say precisely what that mechanism may be. 

For example, if there is a regime change in Iraq and a credible 

government comes into place, then I think at that point we can 

look at the domestic institution to take the lead responsibility on 

this issue and assist that institution where it is needed. So I do believe it is dependent upon the future, if you will. 

What we are doing is we are taking steps to prepare because we 

do believe there must be accountability. 

Mr. LANTOS. Well, surely a successor regime is unlikely to be as 

well organized as is the regime in Serbia. Yet we insisted on having Milosevic go to an international tribunal. And I really am wondering what the rationale is for a preference for ad hoc tribunals 

to be established as the need arises when it is so palpably obvious 

that a permanent international criminal court is an infinitely more 

efficient method of dealing with this problem. 

Chairman HYDE. The gentleman’s time has expired. 

Mr. Leach. 

Mr. LEACH. Well, I want to pursue the criminal court from a little different angle. All of the discourse in the development of it related to a series of very discrete international crimes such as 

crimes against diplomats. It was understood that one of the crimes 

that might be considered by an international court might be war 

crimes, but there are a series of discrete crimes, narco trafficking, 

all covered by international treaties. 

Of all the countries in the world whose diplomats are vulnerable 

today to international crimes, it is the United States of America, 

and to deny the option of an international criminal court for a 

crime against diplomats seems to me to be folly. 

Why the United States would object to the option, and it is always optional to bring drug traffickers before an international 

criminal court, I do not know. And I am wondering if you have 

some explanation for this. And I would stress by background, because the public is not widely focused in on this issue, the International Court of The Hague only adjudicates disputes between 

states. We are seeing with terrorism sub-disputes that involve 

states somewhat but not totally. And so there are other kinds of 

crimes. Terrorism is a kind of a crime. And why we would not want 

to have this as an alternative for this kind of crime is bewildering. 

And can you explain that? 

Ambassador PROSPER. Yes, thank you, Mr. Leach. 

Mr. LEACH. And I might say this is the position of the last Administration as well. I mean, this is not unique to this Administration. 

28

Ambassador PROSPER. I think your question shows the complexities that surround international justice. The efforts underway to 

create the permanent International Criminal Court are limited to 

the prosecution of genocide, crimes against humanity and war 

crimes. It does not address, as you refer, to crimes against diplomats, terrorism or—— Mr. LEACH. But that was very much on the agenda for discussion, in which the United States leadership, I always thought, was 

vacant, now, granted, this is all several years ago, as well as the 

procedures by which one can bring these crimes. 

But please proceed. 

Ambassador PROSPER. Yes. Well, I believe it was not only the 

United States. I think the difficulty was incorporating all these 

other offenses into an international mechanism. 

The idea and the preferred approach is to have each state use 

its unilateral powers and authorities to regulate these problems. 

For example, when we look at the terrorism today and the coalition 

against terror, what we have done is we have asked the international community to come together, to use all the unilateral tools 

they have at their disposal to address these problems. This is a 

more effective and more efficient approach. 

We need to obviously coordinate, but it gives a broader reach. 

And when we get into crimes such as narcotics, the ideal or preferred approach is to get each state to do what it is supposed to 

do and exercise its responsibility. 

Mr. LEACH. I appreciate it. My time has expired, Mr. Chairman, 

but I would only stress that this is an optional approach, an extra 

technique, and one that does not necessarily bring the counter-reactions which unilateral approaches often do. 

Chairman HYDE. Mr. Chris Smith of New Jersey. 

Mr. SMITH OF NEW JERSEY. Thank you very much, Mr. Chairman. And Mr. Ambassador, welcome. 

There have been some reports that Kosovo Albanians might be 

indicted by the tribunal. I wonder if you could shed some light on 

that. 

We have heard rumors and The Wall Street Journal carried a 

rather significant piece today about the Administration’s idea of 

shutting down the tribunals or at least trying to get a timetable 

once Karadzic and Mladic have been arrested. 

My concern is that some of the worst of the worst exist in 

Vukovar. I was in Vukovar weeks before it fell, while it was under 

siege, and what they did to those poor people is reminiscent of the 

Nazis. The Vukovar still have not been brought to justice. 

Ambassador PROSPER. Yes. 

Mr. SMITH OF NEW JERSEY. And thirdly, very briefly, the ICTR 

is proud of the fact that it convicted former Rwandan Prime Minister Kambanda of genocide, but I understand that this conviction 

came only as part of a plea bargain. One of the conditions was that 

the family of Mr. Kambanda would receive asylum in the United 

States. 

Have we in fact provided asylum to family members of persons 

who planned the Rwandan genocide, and if so, what was the justification for this practice? 

Ambassador PROSPER. Thank you. 

29

Regarding the question of Kosovo, the Prosecutor Carla Del 

Ponte has indicated that she is investigating the activities or the 

conduct of the Kosovo Albanians, and there may be some indictments forthcoming. I am not in the position to comment in greater 

detail on that. It will be for the prosecutor to take whatever actions 

she deems appropriate. 

The Wall Street Journal did reflect one of the views that we 

have, which is that Karadzic and Mladic must go to The Hague. 

This tribunal cannot move toward closure because of Karadzic and 

Mladic. The Vukovar three are notable offenders who also need to 

be brought to justice in the Hague. 

We have asked the prosecutor to work with the states, to determine where the line of responsibility needs to be drawn, where 

does the tribunal’s work end and the state’s responsibility pick up, 

because we do recognize that the tribunal cannot address all of 

these violations. We are hopeful that this will happen and we are 

prepared to assist in any way we can. 

Regarding individuals, family members, witnesses, whatever it 

may be from the tribunals coming to the United States and receiving some sort of refugee status, I am not prepared to comment in 

an open session as to the details of who may be here for protection 

or witness protection type of issues. I could do so in closed session, 

if necessary. 

But we do and we have taken steps in the past to bring people 

here. We have screened them and we know that they as individuals 

are not responsible for abuses. 

Mr. SMITH OF NEW JERSEY. I have some remaining time. With 

regard to the Prime Minister, that would have to be conveyed to 

us in closed session? 

Ambassador PROSPER. Yes. 

Mr. SMITH OF NEW JERSEY. Thank you, and thank you, Mr. 

Chairman. 

Chairman HYDE. Thank you. 

Mr. Payne. 

Mr. PAYNE. Thank you very much, Mr. Chairman. 

Mr. Ambassador, sorry that I did not get an opportunity to hear 

your testimony. I am trying to browse through your written report. 

I just have a question regarding the Rwandan Tribunal. I have 

looked at the numbers as I browsed through about the Yugoslavian 

tribunal: under 17 had been indicted, 67 brought to custody, 26 had 

been convicted, five acquitted, 11 are currently standing trial, one 

is awaiting judgment. 

Now for Rwanda, 76 have been indicted, 57 have been brought 

into custody, eight have been convicted, one acquitted, 17 are currently on trial. 

Could you explain what the apparent difficulty or the slowness 

in the Rwandan tribunals, and has any kind of, to your knowledge, 

corrective practices been instituted? 

Ambassador PROSPER. Well, I think this is an important question. I think both tribunals early on were plagued with difficulties 

that are associated with the start-up. We have to recall that they 

were starting from scratch. It was easier for the ICTY in The 

Hague to begin because of the general infrastructure that exists in 

The Netherlands. 

30

It was more difficult in the Rwanda context because, firstly, in 

Rwanda they were setting up operations, if you will, in a post-conflict state that was still trying to get back on its feet. It was also 

setting up an actual court in Arusha, Tanzania, that did not have 

the necessary infrastructure, and a lot of the materials had to be 

brought in. 

In the tribunal for Rwanda, when it began, it began with a strategy of pursuing trials against single individuals which proved to be 

ineffective, which also led to the delay. Now the tribunal for Rwanda has taken steps to have multiple defendant trials. And as you 

refer to, 17 persons are currently on trial before three trial chambers. Our hope is that this will increase the efficiency and the 

speed of the process. 

Mr. PAYNE. Thank you. I visited the Arusha courts several years 

ago, and at that time they were changing prosecutors and trying 

to streamline the procedure. 

However, there was always a question as related to the Rwandan 

situation. I might let you know, first of all, that I am an opponent 

of the death penalty in any situation, and I know that the international tribunal also supports having no death penalty, which I 

think is very, very good and the way it should be. 

However, in Rwanda, where other trials are going on, I think the 

death penalty is in the law of the state, and it seems that the socalled ‘‘Big Fish,’’ as they call them, the intahamway, the 

genocidaires, are in Arusha, supposedly, and others who are being 

tried in Rwanda, and I believe several have gotten the death penalty in the past. 

I wonder whether you have any feeling of what the leadership, 

the political leadership of Rwanda, the RPF and President 

Kagame, has there ever been any discussion about the two systems? 

Ambassador PROSPER. Well, I think in general the fact that the 

leadership is being tried in Arusha and the smaller fish are being 

tried in Rwanda and may receive a more severe penalty has always 

been an issue of discussion, and at times a source of tension. 

I think what happens in Rwanda not only with the government 

but the people, the biggest complaint that I hear is that the justice 

is not reaching the people. This is one of the concerns we have with 

both tribunals, is that the outreach needs to be greater so that the 

individuals who are truly affected by the conflict can actually see 

justice occur and feel the justice. 

This is one of the reasons why our policy is to look first to a state 

system to see if we can enhance that and reinforce that and create 

domestic participation in order to give the ownership and the feeling of contributing to justice. 

I do believe that the main sentiment in Rwanda is that the justice is a little removed from the society. 

Chairman HYDE. The gentleman’s time has expired. 

Mr. PAYNE. Would you yield for just a—— Chairman HYDE. I am sorry. Do you ask unanimous consent for 

another minute? 

Mr. PAYNE. Yes, I am asking for—— Chairman HYDE. Without objection, so ordered. 

Mr. PAYNE. Thank you. 

31

Then let me ask you just quickly, has the United States agreed 

to turn over—there was a problem of a big fish in Texas where our 

extradition policies did not work? If you could quickly tell me that. 

And secondly, the Gachacha, what do you think about that system, 

real quickly, in a minute. You know, I do not want to violate the 

Chairman’s relinquishment of 1 minute. So in a minute, please. 

Thank you, Mr. Chairman. 

Ambassador PROSPER. Mr. Ntakirutimana was transferred from 

Texas to the tribunal, and is currently in court on trial, and the 

hope is that the trial will finish some time in early fall. GACACA 

is something that we are looking at, and we are willing to work 

with the Rwandan government to support because it is important. 

We need to find some sort of way to address the actions of the mass 

number of perpetrators. 

Chairman HYDE. Thank you. 

The gentleman from California, Mr. Rohrabacher. 

Mr. ROHRABACHER. I would be happy to yield Mr. Payne 1 

minute of my time if he has a follow-up question that he would like 

to ask the witness. 

Mr. PAYNE. Thank you very much. I would take just one more 

minute. 

The current incarceration number in Rwanda, I think, exceed 

about 100,000. Do you think that the GACACA will really speed up 

getting these prisons to be less in number? I mean, do you see this 

being a fast process? 

Ambassador PROSPER. Well, that is the goal of the GACACA 

process, and that is to spread the responsibilities of administering 

justice to the community. The more the community can be involved, 

hopefully, the more individuals that can be processed through. It 

is our hope and I believe it is the government of Rwanda’s hope 

that this will help reduce the numbers, I think, that are up to 

120,000 persons in custody as we speak. 

Mr. PAYNE. Thank you very much. 

Mr. ROHRABACHER. Okay, reclaiming my time. You mentioned 

the death penalty, and by the way, let me just note that I am not 

against the death penalty, especially for people who have been convicted of crimes that cause the death and torturous deaths of tens 

of thousands of people, like Mr. Milosevic if he is indeed convicted. 

I guess I am not supposed to say whether or not he should be convicted. But let me just say this. 

If Mr. Milosevic is convicted, considering the magnitude of his 

crimes against the Croatian and Bosnian people, the Kosovars, and 

yes, against his own Serbian people, I would find it appropriate 

that he be executed and not simply be given free room and board 

for the rest of his life. 

Your reaction? 

Ambassador PROSPER. Well, my reaction is that if Mr. Milosevic 

is convicted for his actions in Bosnia, Croatia and Kosovo, he needs 

to feel the firm weight of the law. 

The U.N. tribunal does not allow for the death penalty. The maximum punishment that Mr. Milosevic can receive is life imprisonment, and it will be for the judges to determine whether or not life 

imprisonment is the appropriate sentence. Our view would be that 

if he is found guilty, again, he must be punished for his conduct. 

32

Mr. ROHRABACHER. Well, when you take a look at people like Mr. 

Milosevic who perhaps have the characteristics of Adolph Eichmann and Osama bin Laden personified in one personality, there 

are tens of thousands of people who are out there who have lost 

family members, people who are crying out for justice. I have visited that region many times, and I happen to believe that if it 

wasn’t for the personality of Mr. Milosevic in play in that system 

that better forces, people with better hearts may have prevailed, 

but instead we had this evil force at place in such a powerful position. 

I would hope that we send a message with your tribunal, and I 

am very pleased. At least we see him being dragged before the 

court of humanity now, to answer publicly for these heinous crimes 

that he has been associated with. But let us hope that there is a 

deterrent. I do not think that the possibly of life in prison deters 

these type of monsters, and there are monsters like this around. 

Whether it is Saddam Hussein or Mr. Milosevic, perhaps it would 

be better in cases like this, if they are found guilty, to turn them 

over to their own governments. I am sure Saddam Hussein’s people 

would not give him life in prison, or that his life might be very 

short in prison, so it might be better to go in that direction. 

Who will hold Mr. Milosevic, by the way, if he is found guilty? 

Who will take care of him for the rest of his life? 

Ambassador PROSPER. For both tribunals, what they do is reach 

agreements with states to accept these individuals and house them. 

I cannot predict where Mr. Milosevic will go. He is in a facility 

right now, but he may go to another European state and——

Mr. ROHRABACHER. Maybe there is a Bosnian jail that might accept him, or a Croatian jail that might accept him. 

Chairman HYDE. The gentleman’s time has expired. 

Mr. ROHRABACHER. Thank you very much. 

Chairman HYDE. Mr. Paul, the gentleman from Texas. 

Mr. PAUL. Thank you, Mr. Chairman. 

I want to thank the Chairman for pointing out that we have seen 

some shortcomings in the International Criminal Tribunal in 

Rwanda and the reservations that he and actually the Administration have about the International Criminal Court, which I think is 

justifiable. But I also would maintain that the International Criminal Court in Yugoslavia is probably a model for what we can expect 

from the International Criminal Court. I would have a lot more 

reservations about the determining justice at The Hague when you 

realize that they can use anonymous witnesses, secret testimony—

even a pro-international criminal court Web site reports that there 

is no due process, and that there is no right to trial by jury. So our 

constitution is thrown out. 

When Milosevic was taken hostage and sent over, it was done because we sent a lot of money to the current government, and for 

no other reason. When the court, the constitutional court of Yugoslavia looked at this, they ruled that it was not constitutional. So 

you can see what will happen to our constitution when we have the 

International Criminal Court. 

Now, there has been 52 countries who have endorsed the international criminal court. When there is 60, the assumption is going 

33

to be made by the signature that we put on the treaty at Rome 

that it will apply to us all. 

Now, you have indicated that we do not expect to have that apply 

to us because we are a non-party state. I think that is really 

dreaming a bit because I believe that they are going to do what 

they want. 

I would think that the only way is to make it clear to the world 

whether or not we are going to be part of the international criminal 

court, which if we follow what the proceedings are going on The 

Hague, it is closer to a kangaroo court with no sense of justice. I 

just cannot believe that there is so much faith and belief in these 

courts and that we are going to translate that into a permanent 

court, and then say, well, we are going to be in limbo. We are not 

going to remove our signature, but we are not going to be a party 

state, and then pretend to be a good member of the international 

community, but at the same time say, yeah, if we want to go after 

Milosevic, we will. But if we want to go after NATO, we will not 

because there were many, hundreds, many thousands of people 

killed after NATO bombing versus the two or three thousand killed 

before that, so you cannot just go by numbers of killings. 

So I think we are setting ourselves up for some serious trouble. 

I would like to get an opinion from you about how we can get out 

of this limbo state, and whether the President has ever considered 

removing our signature from that treaty to make it clear to the 

world that when those 60 signatures occur we do not want to have 

any part of the International Criminal Court. 

Ambassador PROSPER. Well, the President has made clear the 

fact that we oppose the International Criminal Court for the same 

reasons the prior Administration opposed it. We are in the process 

of conducting a high level policy review on this very subject to determine how to implement the opposition, and what steps need or 

should be taken. 

I am not prepared to comment on what we may do, but what I 

can say is that in making this decision the President has all the 

interests, the national security interests in mind. 

Mr. PAUL. It seems to me that the President is trying to make 

this decision, but under our constitution treaties should have no 

weight whatsoever unless the Senate ratifies them. And here we 

are worrying about it and there is reason to worry about it, and 

yet we do not say, well, will the Senate ratify it or not, and that 

is when the decision is made. 

I would think that we should think more in terms of getting the 

proper ratification rather than saying, well, will the President accept part of this or not. Hopefully, we will come around to that position. 

Ambassador PROSPER. Well, we recognize the concerns. We are 

making our position known that we are not sending it up for advice 

and consent to ratification, because we do believe that the only way 

to be bound by the treaty is to be a party to the treaty. 

Mr. PAUL. Thank you. 

Chairman HYDE. The gentleman’s time has expired. I will ask 

one question, and then we will get to the next panel. 

I am sorry, Ms. Davis, the gentlelady from the First District of 

Virginia, the mother of Presidents. 

34

Ms. DAVIS. Thank you, Mr. Chairman. 

I apologize, Mr. Ambassador, I was not here to hear your remarks. I have tried to read through it very quickly, and hopefully 

this question has not been asked of you already. 

Is it true that defense counsel on both the ICTR and the ICTY 

have been providing kickbacks to their clients from their U.N.-paid 

legal fees, and in effect, subsidizing the war criminals out of the 

U.N. budget? 

We provide defense counsel to indigent defendants in the United 

States, and this so-called fee-splitting has never been a problem 

here. So why is it a problem in the U.N. system? And are U.N. reimbursement rates too high relative to the countries where the tribunals operate, thereby inviting abuses? 

Ambassador PROSPER. The question on the issue of fee-splitting 

is a problem in both tribunals, and we recognize that. It came to 

light through an investigation conducted by the United Nations on 

this issue. They did determine that there were not significant safeguards or procedures in place to prevent this from happening. 

This is something that we have taken seriously and have taken 

firm actions in letting the tribunals and the U.N. in New York 

know that we are gravely concerned by this, and that we demand 

and are looking for action. 

Fortunately, we are starting to see some action. The tribunal for 

Rwanda has taken corrective measures on at least one defense 

counsel, and others are under investigation. I was informed that 

the tribunal in the Hague is in the process of hiring an investigator 

to do this exact same thing. 

The reason behind it is difficult for me to say—why it occurs and 

why there is the fee-splitting. It would require getting into the 

mind of the offenders here. But what we do know is that we do 

need to pay attention to this, and we need to engage the tribunals 

to ensure that they take the steps necessary to not only hold accountable those who engage in this activity, but also to prevent it 

from happening so that the money is not misused. 

Ms. DAVIS. Thank you, Mr. Ambassador. Thank you, Mr. Chairman. 

Chairman HYDE. Thank you very much. I will quickly ask one 

question. 

After Operation Allied Force in Kosovo in 1999, the International 

Criminal Tribunal for the former Yugoslavia carefully evaluated 

charges that the United States committed war crimes during the 

course of that operation. Ultimately the tribunal announced it had 

found no evidence of U.S. war crimes, and therefore would not indict any Americans, which showed good judgment on their part. 

Would the ICTY in fact have had jurisdiction to indict Americans 

for war crimes during that operation? If that is so, what can we 

do in the future to make sure such tribunals are not given jurisdiction over our armed forces personnel? 

Ambassador PROSPER. Mr. Chairman, when the events in 1999 

began, we were aware that an argument could be made that the 

tribunal would have jurisdiction over our actions and over NATO’s 

actions. 

The United States Government, in conducting this campaign, 

took great care, recognizing this issue, and our practice was and 

35

our targeting was to be precise and to follow the law so that we 

would not find ourselves under the jurisdiction substantively of the 

court. And this is exactly what we did. 

When the allegations were waged, we took them for what they 

were. We believe that they were groundless, that there was no substantive base for it. We made our position clear. We made our position known. And fortunately, the prosecutor agreed with us. 

As far as future instances, I believe that because we are not in 

a state of armed conflict within the former Yugoslavia, that the tribunal does not have jurisdiction over any actions of our forces that 

may be in the area. 

Chairman HYDE. Very well. 

Well, we have another panel to go, and time marches on. But it 

has been a very instructive morning, and we wish you great luck 

in your very difficult and important tasks. Be assured we want to 

be cooperative with you, and we will be in touch with you from 

time to time when questions arise. 

Ambassador PROSPER. Thank you very much, and thank you for 

your attention to this matter. 

Chairman HYDE. Thank you, sir. 

I would like to welcome our second panel. 

Professor Jeremy Rabkin has been a faculty member at Cornell 

University in its department of government for more than 20 years 

and has served as a visiting professor at Harvard University. Professor Rabkin is active on the Board of Academic Advisors of the 

American Enterprise Institute, and on the Board of Directors of the 

Center for Individual Rights. He is a well published author of numerous books, and articles on law, sovereignty and judicial issues. 

He is well known as an international lecturer and well known to 

the Congress where he has appeared frequently as a witness. 

We welcome you today, Professor Rabkin. 

Larry Hammond is a practicing attorney with the Phoenix Firm 

of Osborn Maledon, where he specializes in criminal defense, 

health care, antitrust, civil rights, and Commercial and False 

Claims Act litigation. He has been admitted to the U.S. Supreme 

Court, U.S. Court of Appeals and the U.S. District Court. He has 

been active in many professional and civil associations, including 

the American Bar Association’s Task Force on War Crimes in the 

Former Yugoslavia. He served as deputy assistant attorney general 

in the Office of Legal Counsel, and as an assistant special prosecutor at the U.S. Department of Justice. Mr. Hammond is well 

published in the area of criminal justice issues. He received is Juris 

Doctor and Bachelor of Arts from the University of Texas, where 

he was editor in chief of the Texas Law Review, and was a recipient of the Order of the Coif. 

We welcome you today, Mr. Hammond. 

And our last witness is the Honorable Patricia Wald, who has 

been a judge for the International Criminal Tribunal for the 

Former Yugoslavia, chief judge of the District of Columbia Circuit 

Court of Appeals, and assistant attorney general at the U.S. Department of Justice. She has practiced public interest law and 

served on national and local criminal policy commissions; has been 

Vice President of the American Law Institute, and active with judicial and legal organizations connected with the ABA. She is and 

36

has been active in many other related organizations throughout the 

years as well as with numerous universities, where she has earned 

honorary Doctor of Law Degrees and numerous other awards. She 

is a well known author of several books on criminal law, administrative law, mental health, women’s law and poverty law. She is a 

graduate of the Yale School of Law and has found time in her busy 

career to raise a family of five children. 

We welcome you today, lady and gentlemen, and we will start 

with you, Professor Rabkin. 

STATEMENT OF JEREMY RABKIN, PROFESSOR, DEPARTMENT 

OF GOVERNMENT, CORNELL UNIVERSITY 

Mr. RABKIN. Thank you. 

My prepared remarks are a little bit professorial, and I would 

like to be a little less tempered because I think we are all being 

a little too complacent about this. 

To start with, we have been talking about this as if it is something rather routine which just may have some glitches, and I do 

hope the Committee focuses on how very weird this is. You have 

to go back before the 1990s about 500 years to find real precedent 

for what we are doing in these tribunals. I think before the 1990s 

the one real precedent that I can think of is the Spanish Conquistador Piesaro going into Peru and trying the king of the Incas on 

his own authority as a conquistador. 

And this is a very, very weird thing. For hundreds of years states 

have acknowledged to each other that they do not have criminal jurisdiction over what another state does within its own boundaries. 

Having set up these tribunals because we were not sure what 

else to do and really because we were not willing to use force in 

a serious way, I think we have created dangerous precedents which 

are gaining momentum. I certainly agree with Mr. Lantos. One of 

the elephants here is the ICC. 

The Europeans say to us, well, you supported these ad hoc tribunals. Why do you not support the general tribunals? And of course 

the real answer, one of the real answers is we are not willing to 

be judged by an international tribunal. Well, if we are not willing 

to be judged ourselves by an international tribunal, why are we imposing this on other people? And that is a very, very good question 

which nobody discusses because I do not think there is a very good 

answer. In the meantime it creates momentum for things like these 

national prosecutions where countries like Belgium think that they 

ought to be judge of the world and just go around saying you are 

bad and we are going to try you. You are, too, and we are going 

to try you. 

You may think, if you want to, that this is a touching display of 

concern for humanity. I do not think so. Mr. Lantos alluded to his 

experience during the war. He might remember. 

The Europeans in recent years have not been extremely sympathetic to Israel; quite the contrary. They view Prime Minister Sharon as a war criminal and somebody who ought to be put on trial. 

Just recently the Belgians have talked about indicting Shimon 

Peres, one of the most inoffensive people in the world or certainly 

one of the most unthreatening. 

37

I think it is something that we all ought to pause over before we 

get deeper into this. Do we want to say that the world has so much 

consensus that we can have a free-floating criminal law that is up 

in the sky, which anyone who wants to can just pull down and 

apply to whoever he wants to apply it to? 

If you say, well, no, wait a minute, we did not mean that and 

you back off a little bit, where are you? 

Well, if you cannot apply your own criminal standards to a third 

country that you have no connection with, I do not understand why 

the Security Council can do it, and that is something we ought to 

be a little bit disturbed about. If the Security Council can do it to 

someone else, could it do it to us? 

Well, probably not, because we have a veto, but then again you 

might have a different Administration which has a different policy 

on this. Or if you say the Security Council can do it, why cannot 

just some other group of countries do it? 

We heard Ambassador Prosper testifying that, yes, we feel that 

this should be done in cooperation with national courts. What does 

it mean, cooperation with national courts? We told the Serbs you 

cannot have this trial yourself. We will not even let you begin. We 

will not even let you see whether you can do it. We are just going 

to reach in and grab Milosevic because we want to try him. 

I think once you have set up a super national tribunal like this, 

all of your incentives, as people said about special prosecutors in 

the United States, are to go for the sensational case, not to be cooperative, but to be just making a splashy prosecution somewhere. 

Let me say one last thing which I think we really should focus 

on. I believe this was our founding principle, and maybe what I am 

saying sounds doctrinaire to you, but after all, our country was 

founded on a doctrine, which is that every sovereign state is responsible for itself. 

But putting aside doctrine, we are now in a situation in which 

we are trying to mobilize other countries to help in the war on terror, and what we are saying to those other countries is you are responsible for what is going on in your territory. If you are harboring terrorists on your soil, you are our enemy. I think it is very 

weird for us to be saying on the one hand you have to live up to 

your obligations as a sovereign state to control your territory, and 

on the other hand we do not take sovereignty seriously. Whenever 

we want to we just set up an international tribunal that sits over 

your head and reaches down and fixes what we think might be 

wrong with your system of justice. 

I apologize if this sounds really too abstract, but I think we are 

missing the big picture by focusing on fee-splitting. 

Thank you. 

[The prepared statement of Mr. Rabkin follows:]

PREPARED STATEMENT OF JEREMY RABKIN, PROFESSOR, DEPARTMENT OF

GOVERNMENT, CORNELL UNIVERSITY

Thank you for inviting me to testify on this matter. I should say at the outset 

that I have never had any official connection with international tribunals nor with 

American government policy toward these tribunals. I cannot even claim to have followed the operations of these tribunals in any great detail. My knowledge of their 

workings comes largely from what has appeared in public media. My sole claim to 

comment here is that, as a university professor, I have devoted a good deal of time 

38

to studying the history and theory of international law and I hope I can, on this 

basis,bring a somewhat wider perspective to the committee’s inquiry. 

I do understand that a congressional hearing cannot be an academic seminar. I 

want to talk about the general theory of international justice, but to show that this 

is really worth the committee’s time, let me start by noting three obvious, practical 

problems with these tribunals which enthusiasts for international justice are sometimes prone to forget. 

First, then, if there are international criminal tribunals, there will be constant 

risk of their asserting jurisdiction over Americans, including American military 

servicemen and policy making officials. We did not have this problem at Nuremberg 

in 1945, because the tribunal in that case was established by the occupying powers 

in Germany and, in the exercise of these powers, expressly limited the tribunal’s jurisdiction to Axis criminals. 

When we negotiated the establishment of a war crimes tribunal for the former 

Yugoslavia, however, we agreed that its jurisdiction would extend to all war crimes 

committed in the region—including those by NATO forces. And after the air war 

over Kosovo, we indeed witnessed the spectacle of the prosecutor cross-examining 

top NATO officials to determine whether their choice of bombing targets constituted 

a ‘‘war crime,’’ as Amnesty International and other advocacy groups had charged. 

There was no indictment in this case, but the question is whether we want international prosecutors looking over the shoulder of American decision makers in future wars. It is hard for us to urge international tribunals for others while resisting 

their application to our own people. 

Second, the existence of these tribunals can complicate our diplomacy. In the mid1990s, when attention was focused on the conflict in Bosnia, the United States (and 

our European allies) negotiated extensively with Serb President Milosevic and these 

negotiations produced the Dayton Accords which brought some measure of peace to 

Bosnia. I don’t mean to endorse that negotiation or its results but merely to remind 

you that it is hard to negotiate with someone when he is under indictment. The fact 

is that Milosevic was later indicted for crimes already well known at the time of 

the Dayton negotiations. If we wanted to negotiate with him then, we had reason 

to be glad that the war crimes prosecutor had not yet targeted Milosevic. But it is 

clearly a great difficulty to leave the decision about prosecution to an independent, 

international bureaucrat, with no responsibility for larger stakes in the region. 

The third and most important practical point is that each tribunal risks becoming 

a precedent for the next. In Yugoslavia, the tribunal was imposed by the Security 

Council in the midst of an ongoing war, in which some of the participants were already independent states and the underlying ethnic conflicts threatened to spill over 

into other states in the region. In retrospect, the Hague tribunal does not seem to 

have been effective in limiting the ongoing conflict. But it was at least plausible, 

at the outset, to think the mission of the tribunal had something to do with international peace. 

Only a year later, however, the Security Council established a second tribunal for 

Rwanda—where there was no serious threat to international peace, because the regime that perpetrated such horrifying genocidal murders had already been overthrown (without help, by the way, from the United Nations or the ‘‘international 

community’’). And then the UN became involved in drawing up plans for new tribunals in Sierra Leone and Cambodia—again where there was no comparable danger 

of international conflict. 

After several ad hoc tribunals were established (or planned), advocates insisted 

there must be a permanent criminal tribunal, so a UN sponsored conference in 1998 

launched plans for such an institution—the International Criminal Court. It has 

much wider authority than anything we had contemplated at the outset and no real 

connection to international peace. It is simply there to assure justice for the world, 

at least regarding the worst crimes. Its prosecutor is not accountable to any political 

authority and its charter gives it the right to act, even where national authorities 

have acquitted the accused in a prior trial or provided a pardon or amnesty. It is 

quite an extraordinary institution, but Europeans seem to be quite enthused it. And 

they can’t see why the United States, having supported previous ventures in international justice, should now object to this one. 

So let me now turn to general principles. The international tribunals established 

in the 1990s were a sharp departure from the practice that prevailed for several 

centuries. I can’t pretend that any one deviation from this practice—or from the doctrines behind it—must always have terrible results. But we really should think 

more carefully about our general principles before getting engaged in detailed negotiations over new tribunals—including a reformed ICC. 

First, then, legal justice can’t simply be reduced to punishing the guilty. If it could 

be, we could save ourselves a lot of time and trouble and simply organize assassinaVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
39

tion squads to execute those who deserve capital punishment. I don’t say this lightly. We have all seen movies in which victims of some atrocity track down the guilty 

party and exact revenge on their own—and a good screen writer can always make 

us cheer for the revenge. We have all heard that Israeli intelligence tracked down 

all those responsible for the killing of Israeli athletes at the 1972 Munich Olympics 

and left their corpses in hotel rooms across Europe. I don’t even say such acts of 

retaliation always deserve moral condemnation. We might think of them as necessary evils or acts of war. But we don’t sanction them in public and we don’t call 

them legal justice. 

Who, then, is authorized to impose legal justice, in the sense of criminal liability? 

Before the 1990s, it was almost universally conceded that only sovereign states can 

impose criminal justice. And one reason is that only a sovereign state has the requisite legal institutions and wields the necessary force to ensure that criminal justice is enforced in a reliably systematic way. We would have chaos if everyone could 

take justice into his own hands and we would have lots of injustice, not only because 

mistakes would be made, but because justice would tend to fall on the weak while 

the strong escaped. 

This points to one of the central problems with international tribunals. They do 

not have force to ensure anything like reliable enforcement. This was not the case 

in Nuremberg (or in simultaneous war crimes trials in Tokyo) where the homeland 

of the evil-doers was entirely occupied and controlled by the prosecuting powers, 

who were, in fact, exercising sovereign powers over their defeated enemies. But it 

is notorious that in Yugoslavia, the NATO powers, even while on the ground in Bosnia, did very little to apprehend suspects wanted by the tribunal in the Hague. And 

why? Because they did not want to risk their own troops in firefights with armed 

criminals, because they were not, in fact, committed to governing this territory fully 

and directly. The Rwanda tribunal has had a seemingly opposite problem, stemming 

from the same cause—the perpetrators are all in custody but the tribunal has not 

had the resources to mount trials for more than a few of them because the same 

outside powers which created the tribunal do not care enough (or do not trust the 

tribunal sufficiently) to give it the necessary resources to administer full-scale justice. 

So, international tribunals are bound to be exercises in symbolism rather than 

systematic justice. They will mount what are, in effect, show trials where one famous figure is meant to symbolize the evil done by others, since it is too much trouble or too dangerous to pursue those others, case by case. Prosecutors will be continually distracted by concerns about publicity and attention and scoring points, since 

their own legitimacy is so much more tenuous than that of a normal domestic prosecutor. They will have many of the problems associated with our ‘‘special prosecutors’’—who tend to become too special. Their incentive is to go after the most famous 

rather than the most guilty. 

For somewhat related reasons, international criminal justice risks violating principles underlying the procedural norms of legal justice. Even when standards of 

criminal liability are spelled out in some detail in statutes, they derive much of 

their meaning and moral authority from the practices and expectations of the particular community where they apply. That is why, in our system, the accused has 

the right to a jury trial—so the jury may reflect the expectations and understandings of the relevant community. The Sixth Amendment guarantees the right 

to a jury drawn from the same state and district in which the crime occurred—on 

the assumption that the local perspective is highly relevant to the fair understanding of the crime or to understanding the actual facts of the particular case. 

I don’t say our system is the only valid approach. But international justice goes to 

the opposite extreme—purporting to apply the expectations and understandings, not 

of a particular community, but of the world at large. And in the case of the Yugoslav 

tribunal, to apply them retroactively. 

Perhaps the underlying problem can be seen most clearly, however, if we focus 

on the alternate face of prosecutorial power—the power to pardon. So let me elaborate this point at some length and apply it to our experience in Yugoslavia. 

Every constitutional state makes provision for a pardon power in its criminal justice system. This is a frankly political prerogative, which is why it is vested in our 

elected president and in parliamentary systems, vested in an accountable political 

minister, such as the Home Secretary in Britain. Neither the ad hoc tribunals for 

Yugoslavia and Rwanda, nor the proposed International Criminal Court, makes any 

provision for a pardon power. In fact, they all are designed to circumvent pardons 

or amnesties that might be accorded by national authorities. The international tribunals can’t have a pardon power because they must pretend that they are altogether aloof from political considerations. 

40

But this is the heart of the matter. Legal justice is not and cannot be altogether 

aloof from political considerations. What we mean by legal justice is what a political 

community is prepared to enforce. And a political community has to concern itself 

with more than mere justice in the individual case. A normal government has to 

enforce its laws to show that they really are law and that a reliable government 

stands behind them. But a normal government must also concern itself with conditions of peace and order, as well as justice. So there must be some authoritative 

means for reconciling justice—in the moral sense—with other demands on the community. 

Stated abstractly, this may sound rather crass. But it is not a matter of cynical 

realpolitik. You find exactly this argument in The Federalist No. 74, where Hamilton notes that both ‘‘humanity and good policy . . . dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.’’ He then 

cites, as one example, the consideration that ‘‘in seasons of insurrection or rebellion, 

a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity 

of the commonwealth.’’ If you think Alexander Hamilton is too tainted with realpolitik, let me cite the 

authority of Heinrich Rommen, who explains in his sober, neo-Thomist study, The 

State in Catholic Thought (1945) that ‘‘the object of political authority is . . . the 

common good’’ and the ‘‘right of pardon and amnesty therefore belongs to political 

authority.’’ So he says it ‘‘is an unmistakable token . . . of true statehood [even 

among ‘the members of a federation’] that their highest executives retain the right 

of pardon.’’ American history offers striking illustrations of the principle. After the Civil War, 

for example, almost all Confederate officers and leaders were pardoned. This included officers accused of ordering the massacre of black troops in the Union army, 

rather than allowing them to be taken prisoners—a horrifying aspect of Confederate 

policy, for which President Lincoln had rightly threatened the death penalty during 

the war. Perhaps the subsequent amnesty was too lenient. But we would have been 

rightly outraged at the suggestion that outside powers or some international authority could improve on what our own government had determined to do. At any rate, 

the same thing was done in almost every new democracy emerging from communist 

oppression or military rule—or from racial apartheid—in the past two decades. Everywhere, new democracies were launched with general amnesties, as a way of securing support from supporters of the previous government and allowing the new 

government to make a fresh start. 

In Yugoslavia, however, we have done the opposite. Milosevic was overthrown and 

a new democracy established. We had every reason to encourage the new democracy. As it happens, the new leaders were prepared to conduct their own trial of 

Milosevic. Unlike other dictators, he did not give way voluntarily in a negotiated 

transition so there were no promises made to him of amnesty. But western countries—including ours—insisted that Milosevic must be tried in the Hague. 

We brushed aside the fact that Serbia’s own constitutional court held this was improper. We brushed aside the fact that Serbia’s newly elected president, Vojislav 

Kostunica, the man who unseated Milosevic, a former constitutional law professor 

(and translator of The Federalist Papers into Serbo-Croatian), held the extradition 

to be improper. In fact, opponents of extradition were not just making excuses. Serbia, like Germany and Italy, has a long-standing law against extraditing its own nationals to foreign courts. In the summer of 1914, Serbia tried to accommodate Austrian demands following the assassination of Arch-duke Ferdinand, but one of the 

few demands Serbia felt bound to refuse was the extradition of suspects in the assassination plot. Serbia risked—and got—a world war, rather than give up on this 

principle. We brushed this aside, too, if we even bothered to notice it. 

The new democracy in Serbia has not collapsed, so we have not paid the worst 

price—yet. But surely we are not helping the new democracy by insisting that Serbia’s former president be tried by foreigners in a distant location. Rather, we give 

credibility to the charge that the new government is simply a pawn of NATO, owing 

its very existence not to a people’s movement in Serbia but to outside force. Meanwhile, for all our insistence on trying Milosevic in the Hague, we have let others, 

with perhaps more blood on their hands, continue to roam freely in Bosnia. 

Milosevic is our symbol. 

But for whose benefit do we make this symbolic prosecution? It is hard to see any 

way in which this symbol strengthens prospects for peace and democracy in the Balkans. Rather, we seem most concerned to strengthen the prestige of the court in the 

Hague. Why is that a greater priority than working for future stability in the Balkans? 

We do not pressure Saudi Arabia to extradite Idi Amin, the butcher of Uganda. 

We do not press the French to extradite former Haitian dictator Jean-Claude 

41

Duvalier. We are content to let many other former leaders live out comfortable retirements. Perhaps this is callous. Or perhaps it is prudent. But our very different 

approach in Yugoslavia suggests that the mere existence of an international tribunal makes us think that international justice, in that case, must trump every 

other consideration—even if it is very partial justice which does little to secure 

peace and future respect for justice, where we should be trying to strengthen a new 

democracy. 

Even putting the matter in terms of democracy may be a bit too pious—or a bit 

too optimistic. We are now in the midst of a global effort to crush international terror networks. In that effort, we emphasize to every state that it must act as a responsible state—it must assert control of its own territory and be responsible for 

those who plan or launch terrorist operations from that territory. We cannot possibly establish a global police force to inspect every state. We must rely on actual 

governments. In this context, more than ever, we need to strengthen the sense of 

state accountability—that is, in old fashioned terms, the principles of state sovereignty. We do the opposite when we pretend that there is some hovering presence 

that will assure international justice through international institutions. 

We can, of course, strengthen international cooperation in the fight against terrorism—and other crimes—through extradition treaties. We can provide assistance 

to developing states which do not have well developed judicial systems. But it is one 

thing to provide assistance and quite another to take over the role of the state in 

question. International institutions have no more obvious role in supplanting national courts than they do in supplanting national police. Everyone seems to recognize the difficulty in inserting outside policing forces into a sovereign state. It seems 

to me a fundamental misunderstanding to think that inserting international courts 

is something easier or less threatening. It sends the same message of state incompetence and generates the false expectation that ‘‘justice’’ can be served from above 

and outside, as something that answers not to local necessities but to international 

ideals. 

And if this is fine for a troubled state, why not for others? I said at the outset 

that a practical objection to international tribunals is that they risk extending their 

jurisdiction in ways that threaten the United States. Let me emphasize here that 

the challenge is one of principle, as well. If we talk ourselves into thinking that 

these tribunals are quite appropriate for some states, then why not for us? We 

would be safer—and more honest—if we acknowledged that legal justice necessarily 

implies a sovereign authority. If a state is thought to be so disordered that it can’t 

administer its own justice, the remedy is not an outside court but a new government. And if no new government can be established, the remedy is colonial control. 

If we shrink from that, we should not fool ourselves that we have done something 

genuinely useful or effective by giving powers to international lawyers in the Hague.

Chairman HYDE. Thank you, sir. 

Mr. Hammond. 

STATEMENT OF LARRY A. HAMMOND, ATTORNEY AT LAW, 

OSBORN MALEDON, P.A. 

Mr. HAMMOND. Thank you, Mr. Chairman, and Members of the 

Committee. 

I believe, as do others, that there is cause for serious concern 

about the operation of the existing tribunals at both The Hague 

and Rwanda, and I share Mr. Lantos’ concern that what we learn 

with these tribunals will inform and indeed may not inform decisions with respect to the ICC. 

In the few moments I have, rather than repeating my remarks 

from my prepared statement, I would ask to focus on one very 

small but terribly important issue, and that is the role of the prosecutor in these tribunals. I would like to focus particularly on the 

role of the prosecutor at the ICTY. 

Chairman Hyde, several years ago you were the proponent of legislation that is now the law in this land that governs the conduct 

of Federal prosecutors. It is known by your name, the Hyde 

Amendment. It is an important piece of legislation in this country 

because what it tells Federal prosecutors in our system is that they 

42

must indict with care, and that they must be prepared to provide 

the information necessary so that the accused can have a fair trial. 

Your remarks in support of that legislation are eloquent, and I 

think they apply in full force, and maybe even in greater force with 

respect to the activities of these tribunals. 

I would ask us all to consider and to look with care at what is 

happening in the prosecutions, particularly the prosecutions at the 

ICTY. I am pleased, particularly pleased to be sitting next to Judge 

Wald, who I have known for many, many years. I think she has 

been a bright light on this tribunal at The Hague. But I would ask 

anyone who wants to study carefully the questions about the operation of these tribunals to read her most recent opinions, opinions 

that came down shortly before she left. 

There is no substitute for getting down to the details. It is critically important when asking the question, do these tribunals do 

justice, which, Mr. Chairman, you said is their goal, to find out 

what actually happens in the trials. One reading Judge Wald’s 

opinions in which she reversed three convictions and acquitted, she 

and her panel of five judges, three gentlemen who had been convicted and sentenced to very long terms, one cannot help but have 

grave concerns about whether information necessary to the defense 

in these cases is being produced in a timely and appropriate manner. 

I will not go into detail on that, but I would urge anyone who 

is interested in this question to read those opinions and ask yourselves how is it possible that the evidence that results in the acquittals of gentlemen convicted of crimes that would put them in 

prison for up to 25 years became known and available only after 

their trials—a haunting, and I would suggest to you a most difficult question. 

I would also invite us to look at some of the indictments that 

have come down from this tribunal. I am particularly disturbed 

about the indictment of Croatian General Gotovina. I would ask 

that people read that indictment and see for themselves what is 

there. That indictment involves events that occurred right at the 

end of this war, at a time when that part of western Croatia was 

awash in American military personnel, American political personnel, journalists from around the world; and what we have is an 

indictment that charges a general with conduct that is flatly contrary to, entirely inconsistent with published reports from American sources. 

You need only do one thing: Take the Gotovina indictment, read 

it, and then read Richard Holbrooke’s book which covers the same 

events occurring at the same time, and ask yourself how is it possible that the tribunal at The Hague through its prosecutor has indicted a general and has accused him of forcefully deporting, forcefully displacing 150,000 to 200,000 Serbians from the Krajina region, at the same time that there are witnesses galore to that conduct? How is it possible that this indictment can say that there 

was a massive artillery attack on the city of Knin at a time when 

American and journalists from around the world were there? 

One would expect that a responsible prosecutor before handing 

down any indictment, and if it were an indictment in this country, 

I guarantee you the Department of Justice would have looked very 

43

carefully at this question of what evidence do you have that these 

events actually occurred. 

We have a biography written by Frances Hartman, the Press 

Secretary at The Hague, in which she describes events occurring at 

that same time in a much, much different way than this indictment 

does. 

This causes me great anxiety and I hope it causes anxiety for 

others who want to answer the question, is this tribunal doing justice? Are the people who are brought before that tribunal getting 

the kind of fair trial that we all believe they deserve? 

Thank you. 

[The prepared statement of Mr. Hammond follows:]

PREPARED STATEMENT OF LARRY A. HAMMOND, ATTORNEY AT LAW, OSBORN

MALEDON, P.A. 

I am grateful to the Committee for affording me this opportunity to appear and 

to provide my observations about the operation of the International Tribunals for 

the Former Yugoslavia and Rwanda (ICTY and ICTR). I wish that I could open my 

remarks with a glowing endorsement of the workings of these Tribunals. Sadly, I 

cannot. Anyone who cares about assuring basic due process and fairness must be 

concerned about recent events involving the trial and appellate chambers of these 

Tribunals. For the reasons I will summarize briefly in this testimony, there is cause 

for concern that the rights of those charged with crimes have been subordinated to 

the larger political objective of gaining convictions and maintaining cooperative relations with Governments affected by the Tribunals. At a time when there is growing 

international concern about the establishment of criminal tribunals to address acts 

of terrorism and wrongdoing, there is heightened need to assure that these tribunals 

command respect of nations like the United States that are committed to fair trials 

and due process of law. There is reason for concern that to date these existing Tribunals have fallen short of fulfilling this goal. 

Before summarizing these concerns, I will briefly provide to the Committee my 

background as it might be relevant to the issues discussed here. In 1993, I was invited to serve on an American Bar Association Task Force engaged in an effort to 

recommend rules to govern the prosecutions that might be brought at the Hague. 

Several members of the Task Force expressed concerns about basic due process 

issues arising from the anticipated structure and the proposed rules that would govern the ICTY. While some changes were embraced by the ABA and the State Department in commenting on the proposed rules, most of these concerns were not. 

I believe that I was asked to join the Task Force because of my experience during 

the Carter Administration at the Justice department. From 1977 to 1980, I served 

as Deputy Assistant Attorney General in the Office of Legal Counsel under Attorneys General Griffin Bell and Benjamin Civiletti. During the last year of the Carter 

Administration I worked on matters in connection with the Iranian Hostage Task 

Force. The absence of any international criminal tribunal to prosecute the hostagetakers in Tehran was an always-present reality in dealing with that crisis—a reality 

that caused me (and many others at that time) to hope for the creation of an international criminal court. 

Since leaving Justice, I have remained a believer in the creation of an international criminal court. I am a criminal defense lawyer, but nothing in my professional experience has caused me to doubt the importance of such courts. It has always been evident to me, however, that central to any system of ordered criminal 

justice is the institution of aggressive, honorable and independent prosecutors and 

judges who truly regard themselves as independent and free to apply the law without political concern. Much of what disturbs me about the operation of the ICTY 

and ICTR concerns the roles and responsibilities of judges and prosecutors. As a 

young lawyer I was honored to work for Archibald Cox and the Watergate Special 

Prosecution Force. That experience informs many of my opinions about the seminal 

importance of independent judges and prosecutors in assuring that doing justice is 

more important than gaining convictions. 

It is also of overarching importance that prosecutors and judges retain an independence from each other. This structural separation inheres in our Constitutional 

system and is often taken for granted. The same is not the case in many countries 

that employ the Civil Law tradition. I have had occasion to work with the Lawyers 

Committee for Human Rights on a project that gave me exposure to the Turkish 

44

judicial system—a system very much within the Civil Law tradition. The close alliance of judge and prosecutor we observed in Turkey is reflective of the structures 

of both the ICTY and ICTR. That alliance accounts for much of what disturbs me 

about these Tribunals. 

Let me begin with the role of the Tribunals themselves. While all of us like to 

think that courts are created to see that justice is done in specific cases, it was evident from the creation of the Hague Tribunal that it would be seen as having a different purpose. Recall that the ICTY was established under Chapter VII of the 

United Nations Charter as an ‘‘enforcement measure’’ to restore peace in the former 

Yugoslavia. The Security Council had made a specific finding that violations of 

international humanitarian law had constituted a ‘‘threat to peace’’ in the region. 

From the beginning, then, the ICTY was established to carry out a specific political 

purpose: to restore peace. This purpose is evident. Note the official name of the Tribunal: ‘‘The International Tribunal for the Prosecution of Persons Responsible for 

Serious Violations of International Humanitarian Law Committed in the Territory 

of the Former Yugoslavia since 1991.’’ There may be nothing wrong with the purpose, but it is not one that should guide a court that exists to assure just trials. 

There is no hint of any presumption of innocence, or of the possibility that persons 

brought before the Tribunal might not be ‘‘responsible for serious violations’’ of law. 

This is not to say that the judges and prosecutors serving these Tribunals are indifferent to questions of due process, but in reality there exists an always present 

pressure to gain convictions. To a great extent these Tribunals are subjected to pressure to convict—a pressure that is fueled by the presumption evident in virtually 

every pronouncement of the present Chief Prosecutor. This prosecutorial and judicial attitude is predictable given the history and funding for these Tribunals. Both 

the ICTY and the ICTR must annually seek funding from the United Nations General Assembly. As anyone familiar with the process of fundraising will know, increased funding is very much related to whether the project for which funding is 

sought will be successful. Again, it is difficult to imagine that the ICTY could successfully obtain a budget increase by convincing the General Assembly that it was 

successfully acquitting people brought before the Tribunal. Indeed, the opposite is 

true: the arguments made in recent years to the General Assembly often focus on 

the ‘‘success’’ of the Tribunal in apprehending and convicting those accused by the 

Prosecutor of war crimes. In addition, the two ad hoc tribunals bear the burden of 

being the precursors to the ICC. The success or failure of the ICTY and ICTR could 

have a great impact on the establishment of the ICC. Acquittals would not have the 

effect of creating momentum for the establishment of a permanent court. 

Apart from questions of funding, these Tribunals are subject to pressures from the 

countries and political factions they must count on for the development of evidence. 

Because the tribunals do not have a police force, an intelligence service, or an ability 

to gain immediate and unfettered access to the territory they are investigating, the 

ICTY and ICTR are very much dependent upon the cooperation of governments and 

international institutions. For example, the tribunals have no ability to make arrests, gather intelligence data, or secure a crime site for investigation. Without the 

cooperation of NATO and countries from the region, the ICTY and ICTR would be 

unable to fulfill their mandates. 

These pressures understandably cause the Tribunals to want to protect witnesses 

secured through the cooperation of affected governments—often at the expense of 

the right of the accused to confront his accuser. This was a problem foreseen by 

members of the ABA Task Force. Rules that allow witnesses to testify anonymously, 

and procedures that permit the prosecution to withhold information that might 

allow the accused’s attorneys to investigate the credibility of key witnesses, were implanted in the structure of the courts from the outset, and the results have been 

as one might expect—disturbing. For example, in the Tadic case, the first case before either tribunal, the ICTY Trial Chamber allowed the prosecution to call witnesses whose true identities were withheld not only from the public, but from the 

defendant and his attorneys. Only later was it discovered that two anonymous witnesses against Mr. Tadic had lied about their identities to the Trial Chamber and 

in fact had been coached by the secret services of the Bosnian government. 

In the Kordic trial, public criticism of the slow pace of most trials at the ICTY 

led the Trial Chamber to allow the prosecution to script its questions with its witnesses on direct examination. Furthermore, the prosecution was allowed to lead its 

witnesses by asking a series of ‘‘yes or no’’ questions. In the case of Prosecutor v. 

Furundzija, most of the testimony in the case (including that of accusing witness) 

was held in closed session and outside of public scrutiny. To this day, none of the 

testimony that is relevant to Mr. Furundzija’s guilt or innocence is available to the 

public. 

45

Perhaps the clearest example of political pressure influencing the ad hoc tribunals 

is the Barayagwiza case before the ICTR. In that case, the defendant had been held 

for three years without charge. Finally, defense counsel filed a motion seeking the 

release of the accused on the basis that his right to a speedy trial without delay 

had been violated. The Appeals Chamber of the ICTR (which is the same Appeals 

Chamber for both ad hoc tribunals), after hearing the arguments, granted the defense motion and ordered that the accused be released. In so doing, the Appeals 

Chamber held that ‘‘nothing short of the credibility of the tribunal is at stake, and 

to allow these proceedings to continue would amount to a travesty of justice.’’ Because the Appeals Chamber is the highest authority at either Tribunal, this decision 

was final and no further appeal could be taken. 

Immediately, however, politics intruded into the work of the Appeals Chamber. 

The government of Rwanda, which sought Barayagwiza’s conviction, immediately 

protested and declared that it would no longer cooperate with the ICTR. Indeed, 

Rwanda denied visas to all members of the Office of the Prosecutor, which made 

it impossible for the Prosecutor to conduct investigations in Rwanda or to prepare 

for trial. In short, without Rwanda’s cooperation, the work of the ICTR would come 

to a halt. 

The Prosecutor, despite the fact that the decisions of the Appeals Chamber are 

final, brought a motion on the basis that she had ‘‘new evidence’’ which would cause 

the Appeals Chamber to reconsider. In reality, this was nothing more than an excuse so that the Appeals Chamber, in light of the political firestorm that had resulted, could reverse itself. Ms. Del Ponte made no secret that this was her real motive, and she made this clear in her argument to the Appeals Chamber. The Washington Post reported her comments as follows:

‘‘Whether we like it or not, we must come to terms with the reality that our 

ability to continue our investigations depends on Rwanda,’’ she told the fivejudge panel. Without the help of the country where the genocide occurred and 

so many witnesses reside, ‘‘we might as well open the doors to the prison.’’

‘‘It is my hope,’’ she said in closing, ‘‘that Barayagwiza will not be the one to decide the fate of this tribunal....’’ No secret was made of the fact that political considerations, and not necessarily 

the law and due process, required that the Appeals Chamber reverse itself. 

Surprisingly, this view was not only espoused by the Prosecutor, but by the Chief 

Judge of the ICTR herself. In an article that appeared in The Washington Post on March 10, 2000, Judge Navanathem Pillay made perfectly clear the point that I too 

wish to make: due process rights of the accused are often viewed as secondary to 

the political considerations surrounding the Tribunals. Judge Pillay admits that 

‘‘public opinion’’ influences the work of the ICTR, and that due process rights do not 

necessarily fit into the political purpose of the ICTR (and presumably the ICTY). 

After hearing the arguments, the Appeals Chamber reversed itself and ordered that 

Mr. Barayagwiza continue to be held in custody for trial before the ICTR. It seems 

that the political considerations discussed by Carla Del Ponte and Judge Pillay did 

take priority over the due process rights of the accused. 

Let me pause here to make clear the essence of my concern. I would not advocate 

that persons accused of serious crimes be released on what the world community 

might see as technicalities. My concern goes to the fundamental roles and responsibilities of judges and prosecutors. Unless principles of evenhanded justice are seen 

to animate the decisions of these Tribunals, they will be stripped of the moral authority necessary to successfully prosecute and convict the guilty. 

Some might wish to claim that the Barayagwiza case is not reflective of the true 

nature of these Tribunals. A signal test of whether these international Tribunals 

will place due process above the goal of getting and upholding convictions is unfolding this year before the ICTY in the appeal of a Bosnian Croat General named 

Tihomir Blaskic. This appeal deserves close attention. General Blaskic was tried in 

an extraordinarily lengthy trial of a series of war crimes. The case against him rested on the belief that he enjoyed command responsibility over forces in the field that 

committed atrocities against civilians and non-combatants. The most celebrated of 

the charges involved the deaths of approximately 100 Bosnian Muslim civilians in 

the village of Ahmici during a raid in April, 1993. He was convicted based on assertions that he controlled these events. He received a 45-year sentence. The defense 

sought to prove that in fact the military General had no command authority over 

those who committed these unlawful acts. At trial he was unsuccessful. His case is 

now on appeal. 

Stunningly, however, the Prosecutor withheld exculpatory evidence in the Blaskic

case and is using the same evidence to proceed with the prosecution of another man 

named Dario Kordic. Mr. Kordic was prosecuted for his role in the same massacre 

46

under a theory that Bosnian operatives under his control—and reporting directly to 

the highest levels of the Government of then President Franjo Tudjman—carried out 

the crimes. Evidence developed by the prosecution in the Kordic case was not provided to the defense in the Blaskic case. That evidence revealed decisionmaking 

chains of command that bypassed Blaskic and may well have been unknown to him. 

It is difficult not to conclude that Prosecutors deliberately concealed evidence in 

order to win a conviction over Mr. Blaskic. 

Whatever mystery may have surrounded this seemingly inconsistent set of prosecutions was exposed to public scrutiny in the Spring of 2000 when Franjo Tudjman 

died and previously secret and now famous archives were found in the basement 

of the Croatian intelligence services. This is not the time to go into the emerging 

details of these files, except to say that they cast serious doubt on the theory of the 

ICTY’s prosecution of General Blaskic. What is most disturbing from a due process 

standpoint is the question why every shred of information and evidence in the 

hands of the prosecutors that might relate to this issue was not freely disclosed before, during or after the trial of General Blaskic. While the archives may have been 

unknown before early 2000, it now appears that much was known by the prosecutors and was regarded as reliable—indeed, reliable enough to be used as evidence 

in the Kordic case. The Blaskic appeal deserves close attention by those who wish 

to assess whether our international Tribunals are capable of dispensing justice. 

Another case recently indicted by the ICTY—this one involving alleged war crimes 

said to have occurred at the end of the war in Croatia—also deserves close attention. The ICTY Prosecutor has indicted General Ante Gotovina in connection with 

crimes alleged to have been committed by Croatian military forces against Serbian 

civilian populations in the Krajina region. In the last days before the ceasefire that 

led to the Dayton Conference, the Croatian Military engaged in an offensive known 

as Operation Storm. As with the case of General Blaskic, serious questions remain 

with respect to whether the acts alleged were in fact undertaken with General 

Gotovina’s knowledge and authorization, but of even greater interest are questions 

with respect to whether the events in question were part of a military operation undertaken with the cooperation and knowledge of the United States. 

One need only read two documents to see the uncomfortable questions: (1) the indictment of General Gotovina, and (2) the memoir of Richard Holbrooke, entitled To 

End A War. If it is true that the General is a war criminal, it may well also be 

true that our Government is complicitous. Even if not complicitous, it is absolutely 

clear that our Government and our military and intelligence personnel in the 

Krajina region in August of 1995 have information relevant to the case—and possibly critically important to the General’s defense. Journalist Roy Gutman’s Newsweek article from August 27 of last year lays bare much of this apparently delicate 

problem. The disturbing article, entitled What Did the CIA Know, catalogues the 

close engagement of U.S. military and political resources in the Croatian offensive 

(copy attached.) The question this information raises is much like the question that 

should have surfaced in the Blaskic trial. How far is the prosecution and the ICTY 

willing to go to see to it that the accused has access to information so that he may 

defend himself? I cannot begin to predict whether the United States Government 

would turn over intelligence information if it were demanded—as it should be—but 

if information and witnesses from the United States military and diplomatic establishment are not made available there should be no prosecution. The pressures discussed above make one wonder whether the ICTY will have the courage to say that 

the rights of the accused should dominate over the political goal of obtaining convictions. 

The name of the Chairman of this International Relations Committee is associated with one of the most important recent enactments designed to govern the conduct of prosecutors in the American federal prosecutorial system. The Hyde Amendment, enacted in 1997, is designed to assure that federal prosecutions are ‘‘substantially justified’’—that is, that individuals are not indicted and pushed through our 

judicial system unless a careful evaluation has first been undertaken by an independent prosecutor. This A mendment, which authorizes an award of attorneys fees 

to the accused in cases of meritless prosecution, is supported by strongly worded remarks from Congressman Hyde. He asked questions that might with equal justification be asked of those who would prosecute war crimes before the ICTY and the 

ICTR. Is there a potential that prosecutors will ‘‘keep information from you that the 

law says you must disclose?’’ Will prosecutors be tempted to ‘‘hide . . . exculpatory 

information to which you are entitled?’’ Is it possible that a prosecutor may ‘‘wrench 

somebody out of their job and their home and put them on trial as a criminal’’ in 

a case that lacks substantial justification? 

Again, the Gotovina indictment affords what may be suitable and distressing examples of the need to ask similar questions about ICTY prosecutorial decisions. 

47

Paragraph 20 of the Gotovina indictment charges that the General is responsible 

for a ‘‘large-scale deportation’’—a ‘‘forced displacement’’—of an ‘‘estimated 150,000–

200,000 Krajina Serbs.’’ Amazingly, that very charge is contradicted by the Prosecutors’ own spokeswoman, Florence Hartman. Ms. Hartman published a book in 1999 

in which she wrote that Milosevic, not Croatia, ethnically cleansed the area in question: ‘‘It was Belgrade that evacuated the Serbs from Krajina and led them to Banja 

Luka and northern Bosnia. This was done so that Belgrade could later justify holding on to these Bosnian territories during future peace negotiations over Bosnia and 

Herzegovina.’’

One might argue that a prosecutor is not bound by the public statements of her 

official spokesperson, but my concern is that such blatant inconsistencies evidence 

a lack of prosecutorial care and attention to accuracy. The Gotovina indictment affords a second example. The last paragraph of the indictment (Paragraph 44) alleges 

that ‘‘Croatian forces [said to be under the command of General Gotovina] directed 

a massive artillery assault on Knin’’ (the city described by the Serbs as their ‘‘capital’’). Where did this accusation come from? At least three American journalists 

who were in the region on the day of the supposed ‘‘massive artillery assault’’ saw 

no evidence of one. It is a reasonably safe assumption that had there been such an 

assault the destructive effects would have been evident. It may be even safer to conclude that no investigator or prosecutor from the Hague visited Knin to assess artillery damage. A federal prosecutor in the United States, mindful of the Hyde Amendment, would surely not bring charges of this portent without careful evaluation. A 

prosecutor acting on behalf of an international tribunal can operate on no lower 

standard of justification. 

The recent history of the cases like the Gotovina, Blaskic and Barayagwiza cases 

suggests that, indeed, proceedings that disserve due process can happen at the 

Hague and in Rwanda. Unless a fair trial—one in which the accused is given full 

access to all information in the hands of the prosecution or within his grasp—is assured, there will be little cause to support this Tribunal and even less cause to place 

confidence in the International Criminal Court yet to come into existence. The world 

and the United States need these courts. They perform critical roles, but they cannot be embraced and respected unless they exist as a first priority to secure justice, 

rather than to secure convictions. 

I have read and considered the recent appellate decisions authored by former 

Court of Appeals for the D.C. Circuit Judge Pat Wald in her capacity as a member 

of the ICTY. These opinions, especially the case handed down in October of 2001 

known as Prosecutor v. Kupreskic, et al, deserve careful attention. Judge Wald is 

plainly a judge who appreciates the seminal importance of due process and full disclosure. Readers of her opinions will be struck by her respect for fairness when, for 

example, her opinion urges ‘‘extreme caution when assessing witness’ identification 

of the accused made under difficult circumstances.’’ At a time in the United States 

when the cause of wrongful conviction seems often to surround faulty eye-witness 

identification, it is comforting to see that at least one appellate Tribunal at the 

Hague appreciates the dangers of witness testimony that has not been subjected to 

full examination. These rulings are cause both for optimism and concern. Optimism, 

because they reflect a maturing Court coming to recognize that there may be something more important than convictions. Concern, because Judge Wald has concluded 

her two-year term and will no longer be there to check the prosecutors and the 

judges less inclined to withstand public criticism. Judge Wald’s remarkable appellate handiwork also calls to mind one of the fundamental deficiencies in the structure of these Tribunals. The absence of a separate and independent appellate court 

remains a serious shortcoming. It is unrealistic to believe that many judges who 

must interact and cooperate with their trial and appellate judicial colleagues on a 

daily basis would have the courage displayed by Judge Wald to reject and reverse 

their colleagues in the Trial Chamber. Several members of the ABA Task Force 

urged that this obvious flaw be remedied. I am sorry that the argument did not prevail. We would have had a better court, one in which the accused could have greater 

confidence that errors at trial would genuinely receive evenhanded appellate review. 

Plainly, the two Tribunals now in existence are at a crossroads. Their performances to date can be most fairly characterized as mixed. How they perform in the 

near term will inform our judgments about whether the International Criminal 

Court concept is one achievable in conformance with American principles of fairness. 

A first step would be the establishment of a principle of full disclosure and full cooperation in gathering relevant evidence. Whether that evidence is already in the 

hands of the Tribunal—as some of it apparently was in the Blastic case—or in the 

hands of cooperating Governments—as it apparently is in the Gotovina case—the 

watchword of these Tribunals should be that every effort will be expended to make 

48

sure that all facts are known to the accused. Due process and a fair trial requires 

nothing less. 

CONCLUDING OBSERVATION

Much of what the world hears about these tribunals is wrapped up in the highly 

visible, and sure to be long-running, trial of Slobodan Milosevic. The daily reports 

of the savagely disrespectful and inappropriate behavior of Mr. Milosevic deserve 

sharp rebuke from the world community. But if the ICTY is to merit the respect 

denied it by this defendant, it must establish by example that it is above politics 

and exists truly to see only that justice is done. Experience over the early years of 

these Tribunals, in my judgment, leaves open the question whether international 

courts, and those who serve them as judges and prosecutors, have the will to take 

the steps and make the sometimes unpopular choices required when justice and due 

process, rather than convictions, are the overarching goals.

Chairman HYDE. Thank you very much. 

Judge Wald. 

STATEMENT OF THE HONORABLE PATRICIA M. WALD, JUDGE, 

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA, 1999–2001; U.S. COURT OF APPEALS FOR DC CIRCUIT, 

1979–1999; CHIEF JUDGE, 1986–1991

Judge WALD. Thank you, Chairman Hyde. 

I would like to just make my remarks informally, knowing that 

my written testimony will be incorporated into the record and 

would just dwell on a few points that have been raised by the previous witnesses, if I may. 

I do want to point out that among the ICTY’s achievements, I 

cannot speak with any knowledge about the Rwandan tribunal because I have not been a part of it, nor indeed have I visited it. 

But I would point out that the figures of 91 indicted, 31 tried, 

14 appeals completed, 29 either in trial or awaiting trial are not 

insubstantial considering that this was a new tribunal and no 

trials occurred for the first 3 years. 

I also want to point out that many of them are high level military and civil leaders. Two were the Presidents of the autonomous 

Serb Republic, the third, of course, was President Karadzic, and we 

do not have Milosevic yet, but at the next level the ICTY has made 

substantial in-roads in terms of the military generals just below 

Milosevic and the civic leaders who participated, allegedly, in these 

horrible events. 

Now, the tribunal, as we all know, was a response to a horrified 

world which, due to the conscientious efforts of some wonderful 

journalists, put those horrors virtually in our living room in the 

years of 1992, 1993. They were referred to by the President of the 

U.N. as the worst atrocities since World War II, millions expelled 

from their homes through ethnic cleansing, hundreds of thousands 

imprisoned in a very near approximation, if not a total equivalent 

of the concentration camps of World War II, an estimated 50,000 

rapes in Bosnia. 

But I want to point out that at that point, at that point and certainly for a substantial time afterwards if there was to be any response in terms of legal accountability, there was no place to go except the creation of an ad hoc tribunal. 

It is unfortunately true that the governments of the countries involved, that would be Bosnia, that would be Serbia, that would be 

Croatia, were unwilling or unable, certainly in the case of Bosnia, 

49

to do anything about that. Now, even as recently as 2 weeks ago 

I was in Bosnia, and we had a conference there about defense counsel who appear both before the ICTY and before national courts to 

prosecute the war crimes. 

The ombudsman for Bosnia who is appointed pursuant to the 

Dayton Accords made it very clear that the courts of Bosnia are beginning to take over many of these prosecutions, but I read an AP 

dispatch yesterday that said that 62 of the cases which had come 

to the prosecutor, the prosecutor had sent back to the Bosnian authorities to be tried in the local Bosnian courts. So some of that is 

happening now. 

But at the time the Bosnia court infrastructure had been almost 

totally disseminated by the war. I mean, they had lost up to half 

of all their judges because the Serbian judges went up into the hills 

with the Serbian forces. The Bosnian judges, some of them stayed. 

Sarajevo was shelled for several years. There were simply no national courts that could take charge, and I think that may be replicated, not in all countries, but that is why we have to look at 

these tribunals on a one-to-one basis and see what the need is for 

them vis-a-vis national courts. 

Everyone in this room, I think, is agreed, the optimal solution is 

for a national jurisdiction, if it is both willing and able to take over 

the prosecution of its war crimes, should do so. But we must remember that the Croatian government, at least until the change to 

President Mesic from President Tutsman, as well as the change 

from Milosevic to the new Serbian government, there certainly was 

not going to be any war crimes prosecutions undertaken. 

Now, one might say, okay, we will wait, I mean, wait it out, as 

it were. I would just like to raise one example of why I think the 

world and the United States has progressed beyond that point. 

One of the cases that I had sat on during my 2 years there was 

the massacre at Shrebeneza. The massacre at Shrebeneza involved 

25 to 30 thousand Muslim inhabitants of the so-called safe enclave, 

the U.N. safe enclave in Shrebeneza. The 25 to 30 thousand are 

really the good part of the story, almost. They were women and 

children who were just thrown onto buses willy-nilly, and dispatched in quite bad conditions, but fortunately dispatched out of 

the territory into Muslim-held territory so that they were not killed 

or badly injured. 

But there were seven to eight thousand young Muslim men of 

military age but predominantly civilians, who were attempting 

themselves to escape toward Muslim-held territory, who were captured and within 1 week, within 1 week they were executed. Four 

thousand of those bodies have been exhumed, but in such bad condition that identities can only be made for, I think, several hundred. 

And, in fact, this was done within 1 week, and this was about 

6 months prior to the Dayton Accords, while preparations were 

being made for the Dayton Accords to go ahead. As that progress 

continued, within 2 months the original mass burial graves, which 

were all up and down this 100 mile territory, were themselves gone 

back into. All of the bodies were scooped up into trucks, and then 

they were taken to more remote locations for mass secret burials. 

50

Now, if we were to wait 5, 10 years, it is virtually sure that 

much, that most evidence would be lost, and many of these crimes 

would simply not ever be punished in any kind of tribunal. 

The second part of that is that many of the witnesses we saw in 

that particular trial would not have testified in the local courts in 

the ensuing 5 or 6 years because they were terrified. In some cases 

there were real threats of retaliation from the villages and the people of opposite viewpoints. 

So that I think if we really are serious about the legal accountability for the most serious crimes, and I admit we are not going 

to be able to try them all, then I think we have to look at each situation, and I am convicted that in the case of the ICTY tribunal it 

was a very justifiable and perhaps the only way. I think any notion 

of a truth and reconciliation commission at that point would have 

been out of the question. The war was still going on. There is a 

truth and reconciliation commission which is being brought into 

Bosnia at this time. 

Very briefly, I want to just take my second and final point, and 

that is whether or not in my opinion the trials are fair, whether 

there is justice being dispensed at the Yugoslavia tribunal. 

I have not been a cheerleader for the tribunal. Anybody who has 

read my decisions and some of the written work knows that, based 

upon my own 20 years experience in our own Federal system, I 

have been a critic of certain of the procedures. 

However, I will tell you that overall I think that the trials are 

fair. Now, the fact that I presided over the appeal which exonerated, not exonerated, I am sorry, but which reversed the convictions of three, I make two points on. 

One, it certainly was not unique to me. There were five judges 

on that panel, none of whom disagreed with that. They were from 

Italy, Malaysia, Colombia, and China. 

But the other thing is that I cannot tell you how many times 

during my 20 years on the DC Circuit I reversed convictions by the 

trial bench which I think is one of the finest trial benches in the 

country. I am simply pointing out errors do occur in trials, and I 

do not think the fact that some errors occurred in this one condemns the entire system. 

Obviously, and I am concluding, I cannot go into all of the details 

of the various cases which have been identified. In fact, my experience as a judge would suggest I would never draw a conclusion 

about whether a piece of material put out by the ABA Committee 

here made such a fuss about it, rightly so. There was a good dissent by one of the judges on the tribunal. It has never happened 

again to my knowledge. 

The second point I would like to make is the secret evidence. A 

survey by the victim and witnesses unit, which handles all of the 

witnesses at the ICTY, and I can make this available to the Committee staff if you wish, shows that only 1 percent of almost a thousand witnesses who have come to The Hague since 1997 or 1998, 

1 percent have been heard in closed session. And closed session 

means that a video tape is kept of the proceedings, but the press 

and the public are not allowed to see that. 

Now, it does not mean it is secret forever. The court, the same 

court or another panel of the court can subsequently lift that. In 

51

fact, I have been involved in proceedings where we did lift the veil 

off of prior secret proceedings. 

So I think it would be unfair to go away with an impression that 

there is a wide, wide scale of secret hearings held. 

As far as the prosecution withholding evidence from the defense, 

again, I would not venture to conclude on any one basis. I would 

say that in my experience with 2-year-long trials, which were run 

by American prosecutors secunded from our own Justice Department, who had long records in the Justice Department, one as a 

10-year public defender in California, I saw no evidence of such. 

And I will just point out that, yes, there is a lot of new evidence 

that comes in after trial is completed because the Croatian government is just now opening up its archives which were closed to both 

sides for years and years and years. And so you are getting lots of 

new evidence which comes in later, and which the appeals court 

has a rule allowing to come into the record. That happened in the 

Kupreskic case and was one of the examples. 

We were satisfied, the panel in the Kupreskic case was satisfied 

that that evidence, which did help us to change our mind, was unavailable at the time of trial. 

I think I will conclude there. 

[The prepared statement of Judge Wald follows:]

PREPARED STATEMENT OF THE HONORABLE PATRICIA M. WALD, JUDGE, INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA, 1999–2001; U.S. COURT

OF APPEALS FOR DC CIRCUIT, 1979–1999; CHIEF JUDGE, 1986–1991

INTRODUCTION

Chairman Hyde, Congressman Lantos, Committee Members, thank you for inviting me to testify at your hearing on the UN Tribunals for Yugoslavia and Rawanda. 

I returned a few months ago from two years service on the International Criminal 

Tribunal for the Former Yugoslavia (ICTY) after twenty years on the U.S. Court of 

Appeals for the District of Columbia. I am not personally familiar with the operations of the Rawandan Tribunal. The Yugoslav Tribunal has been in existence for 

almost nine years and I believe its history and accomplishments are a worthy subject for informational hearings. I am pleased to share my observations on the Tribunal’s successes and problems, and to offer recommendations for improvement. 

THE ACCOMPLISHMENTS OF THE ICTY

The ICTY was established by a United Nations Security Council Resolution in 

1993, as a 14-member court on which no country could have more than one judge. 

The judges are nominated by their respective countries for four-year terms and elections made by the U.N. General Assembly. Subsequent amendments to the ICTY 

Statute have enlarged the court to 16 members and provided a corps of 27 ad litem

judges who come to the Hague for one or two trials but do not enjoy all the privileges of full-time judges. The mandate of the Tribunal is to prosecute and try individuals for war crimes, crimes against humanity and genocides (as defined in the 

Statute) committed on the territory of the former Yugoslavia since 1991. Indictments are brought by the Prosecutor who is chosen by the Security Council. The 

Tribunal is authorized to impose prison sentences up to life but not the death penalty; those sentences are served within the prison systems of several nations with 

whom the Tribunal has formal arrangements. The Tribunal has no police force of 

its own and must depend on the cooperation of States (and SFOR) for arrests, access 

to documents, and compulsory production of witnesses. The Statute mandates such 

cooperation from all States but in practice cooperation is not always forthcoming. 

The Tribunal is organized into three trial Chambers and an Appeal Chamber which 

also hears appeals from the Rawandan Tribunal, (ICTR) located in Tanzania. 

Judges sit in trial panels of three on individual cases. The Statute provides for an 

independent Office of the Prosecutor (OTP) and a Registry to provide logistic support for the Tribunal, i.e. filing, translation, defense services, press and public relaVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
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tions, legal assistance and security. The ICTY currently has over 1,000 employees 

and a budget of over 100 million dollars annually. 

What has the Tribunal accomplished in its nine years? It has indicted 91 defendants publicly (there are an unpublicized number of secret indictments), completed 

the trials of 31 of whom 29 have been convicted or plead guilty and 2 acquitted), 

completed the appeals of 14 of whom 11 are either serving or about to serve prison 

sentences (3 defendants’ convictions were reversed on appeal). 11 defendants are 

currently in trial and 18 in pretrial proceedings. The majority of these in trial or 

awaiting trial are in detention at the Hague and a few are on provisional release 

to their home States. 

Of course the bare statistics do not tell the whole story. Apart from former Yugoslav President Slobodan Milosevic, now on trial, several other high-ranking military 

and civic leaders accused of war crimes or crimes against humanity committed during the 1991–95 conflicts involving Slovenia, Bosnia, Croatia, Serbia and later 

Kosovo have been apprehended or voluntarily surrendered to the Tribunal. These 

include General Radislav Krstic Commander of the Drina Corp. who has been found 

guilty of genocide in the Srebenica massacres of up to 8,000 young Muslim men in 

one week in 1995, Croatian General Tihomir Blaskic found guilty of the dawn massacre of the village of Ahmici in which 100 Muslim inhabitants were slaughtered 

and their homes destroyed, General Galic who allegedly oversaw the shelling of civilians in Sarajevo, and numerous mayors and police chiefs of cities and villages in 

Bosnia who planned or implemented the expulsion of unwelcome ethnic groups from 

the territory and the imprisonment of thousands of civilians in inhumane conditions 

in the so-called ‘‘collection centers’’ that sprang up throughout Bosnia in 1992. It 

is unfortunately true that two of the most notorious indictees, President Radovan 

Karadzic of Republica Serbska, the Bosnia Serb Republic and Ratko Mladic former 

Commander of the Bosnia Serb army, remain at large, but it is nonetheless difficult 

to deny that a significant number of the civic and military leaders in the conflict— on all sides—who are accused of committing or permitting those under their supervision to commit crimes against the laws of war, humanity, and genocide have been 

brought to the Hague to stand trial. Even critics of the Tribunal would, I believe, 

admit that a strong signal has been sent that national leaders may not with impunity violate the laws of war and the rights of innocent civilians and not undergo 

the risk of substantial punishment. Except for the Nuremberg and Tokyo Tribunals 

in the brief period immediately following World War II and a few scattered national 

court prosecutions for war crimes in the interim 50 years, that risk was not present 

before. 

I am however, aware of the position of some critics of the international tribunals 

that the task of bringing war criminals to justice is better left to the individual 

states from which the perpetrators come or where they may be apprehended under 

ordinary laws of international jurisdiction. 

Actually there is widespread agreement among international commentators and 

criminal practitioners that whenever local courts can and will conscientiously undertake the task, war crime perpetrators should ordinarily be tried in national court. 

Indeed the ICTY itself contemplates such a scenario as it winds down and is currently investigating when and under what conditions some of its current caseload 

might be devolved onto State courts. And the Rome Statute creating the permanent 

International Criminal Court (ICC) is built around a principle that its jurisdiction 

is secondary in most instances, triggered only if the relevant State courts cannot 

or will not assume responsibility for the prosecutions. As you undoubtedly know, the 

OTP at the ICTY already operates under the so-called Rules of the Road whereby 

the prosecutor may send potential ICTY cases to the States rather than pursue 

them in the Tribunal itself. It is true that as originally established the ICTY could 

take a case which fell in its jurisdiction away from a national court and it did so 

once. But to my knowledge that has not again happened. 

The crux of the matter however is that often the relevant States are not capable 

of pursuing their war criminals during or immediately after wars or internal conflicts. Their own judicial infrastructure has frequently been so damaged in terms of 

resources, personnel and facilities that there is no possibility they can prosecute 

major war crimes in the immediate future. This was certainly true of Bosnia at the 

time the ICTY was established and to a degree it is still true. War crime prosecutions, especially against top leaders who have planned or executed countrywide 

strategies of abuse, are enormously complex, expensive and time consuming. Many 

of the ICTY prosecutions, such as the Srebenica genocide, followed five year field 

investigations in which hundreds of witnesses had to be interviewed, thousands of 

documents seized or accessed, and exhumations of mass burial sites conducted and 

the scattered body parts of thousands of victims collected, analyzed, and identifications attempted. There was no way Bosnian authorities in the mid-nineties—or even 

53

now—could conduct major endeavors on this scale. And yet if these investigations 

had to wait until the recuperating war torn countries had the facilities to undertake 

them, potential witnesses and documents would likely be lost and graves vandalized 

or robbed. 

In the cases of other Balkan countries, most exhibited no desire to pursue war 

crimes until their internal politics changed, several years after the ICTY began operations. In many of those countries, war criminals indicted at the Hague were still 

‘‘homeland heroes’’. I was in Sarajevo two weeks ago at a conference dealing with 

the training of counsel who practice before both the ICTY and domestic courts in 

war crime trials. There the Ombudsman for the Federation of Bosnia/Herzegovina, 

appointed pursuant to the Dayton Accords, said publicly that the Federation simply 

did not yet have the resources or the substantive law in place, nor even the fundamentals of legal education to take over the job of prosecuting the bulk of war 

crimes. Bosnia as well as other countries in the region have to pass new laws to 

define war crimes in their national codes and to provide for the protection of victimwitnesses; they have to train prosecutors and defense counsel to perform new functions in investigating and prosecuting novel theories of criminal responsibility. Some 

war crimes are in fact being prosecuted already in a few courts in the Federation 

but the national system cannot take over the bulk of the Hague-type prosecutions 

for at least several more years—and then it will need an infusion of resources to 

do an adequate job. A report on the situation in Republica Serbska (the Bosnian 

Serb region) similarly predicts a 2-year minimum before prosecutors and courts can 

take over any sizeable number of prosecutions and adds that political ambivalence 

toward such prosecutions is still a fact of life in that region. Croatia under its new 

government has begun some important war crime prosecutions, but this has been 

a development only of the past year or so. There are numerous estimates of how 

many potential war crime prosecutions are involved in the Bosnian and Kosovo conflicts; they range from 20,000 to 50,000. Assuredly neither the international courts 

nor the domestic ones can handle all or even most of them in the near future, if 

ever. And that may be one of the sad legacies of any war. But the Bosnian situation 

indicates that a realistic look must be taken at the particular situation in each 

country that has been involved in an international or internal conflict to assess its 

capability to pursue justice for victims of war crimes before relegating all war crime 

prosecutions to its national courts. In some cases that would be the equivalent of 

denying accountability altogether to the gravest violations of international humanitarian law. I recognize that war crime tribunals are not the only answer or necessarily the best one in every situation—truth and reconciliation commissions have 

played a valuable role in countries in the transition from war and tyranny to peace 

and democracy; and hybrid international/national tribunals have proved useful in 

others. My point is that there are many situations where a war torn country cannot 

pursue accountability for war criminals through its own system in the aftermath of 

war and some form of international war crimes tribunal may be the only realistic 

alternative. I am satisfied that this was the case when the ICTY was set up. After 

listening to hundreds of witnesses who suffered hideous assaults on their bodies, 

minds and souls yet found the courage to come to the Hague to testify against their 

accused violators, I cannot imagine that the bulk of them would have testified willingly in their local courts which in many cases were located in villages and towns 

still populated and in some areas dominated by forces sympathetic to the alleged 

wrongdoers rather than to their victims. I am convinced the ICTY filled a critical 

void in that respect, that no national courts were prepared or able to fill. 

Having said this, I must agree however with those commentators who say that 

international criminal tribunals should concentrate on the so-called ‘‘big fish’’, the 

military and civic leaders who planned, initiated and were in charge of executing 

the major campaigns and strategies that violated laws of war and humanity—the 

generals who approved shellings of civilians, who oversaw executions of civilians 

and prisoners of war, who set up the terrible detention camps, who expelled ethnic 

groups from territories or towns they captured. The mid-level and lower level individuals who participated in war crimes—soldiers, guards, aides—should be for the 

most part handled in national courts, even if that involves unfortunate delay. In 

that sense, I agree that too many of these mid-level violators may have been indicted by the ICTY. Historically this is understandable because in the early years 

of the Tribunal, the major war criminals in the Balkan conflict had not been apprehended or surrendered. When they finally did begin to come under ICTY custody, 

the pipeline was to a degree already filled with the earlier indictments of less prominent war criminals. Conditions were quite different at Nuremberg a half century 

ago—captured Nazi leaders were already in custody—the main trials were over in 

about a year and up to a thousand lesser violators were tried subsequently and separately in single judge trials by the four Allied Command members in their own triVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
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bunals. I think so far as future ad hoc international criminal tribunals are concerned, more thought should be given at the inception to achieving a goal of trying 

a realistic number of the most serious offenders within a finite number of years, 

after which the national courts (or a permanent ICC) would take over. Perhaps, as 

suggested by Ambassador Prosper in an earlier speech, guidelines as to which types 

of indictees should be included in the category of serious offenders designed for the 

international tribunal could be agreed upon between the drafters of Tribunal statutes and the prosecutors from the start. 

I will allude only briefly to some other accomplishments of the Tribunal. Foremost 

is the development of vital concepts of international law such as whether an international conflict is necessary to the invocation of certain provisions of the Hague 

and Geneva Conventions, what are included in war crimes, what can be identified 

as the ‘‘customary’’ law of war, what constitutes genocide and many more issues 

which had heretofore been discussed only in treatises and among diplomats. We all 

know from our domestic experience how often it is essential that a statute be interpreted by courts in order to apply its provisions legitimately to a variety of different 

factual situations. The same is true for international law: for example until the Tribunals appeared in the scene, the Genocide Convention drafted in 1948 (ratified by 

the United States in the mid-eighties) had been interpreted only by a few national 

courts, not always consistently. It required interpretation to apply its provisions to 

situations like the ethnic cleansing campaigns in the Balkan wars. The ICTY (along 

with the ICTR) has produced a substantial corpus of coherent international law on 

war crimes and crimes against humanity as well as genocide—something that a few 

random decisions in national courts could not. It is only by accretion of case law 

interpreting ambiguous parts of treaties or ‘‘customary law’’ that coherent, consistent and predictable norms of law are established that can govern the future behavior of leaders in war time. A second example of its contribution in this regard 

is the Tribunals’ pathbreaking decisions as to the status of rapes, sexual violence, 

and sexual enslavement as crimes of war and crimes against humanity when committed in the context of a widespread campaign against civilians. An estimated 

50,000 rapes were committed in wartime Bosnia, as part of a campaign of terrorism 

against civilians or inside the prison camps. For the first time in history an entire 

war crimes prosecution at the ICTY was devoted to crimes against women. From 

my reading of the international journals, the commentators generally agree that the 

advent of the Tribunal has ushered in a giant step forward in the elucidation and 

clarification of what international law means and requires in time of war. 

The Tribunal has also pioneered in the creation of procedural rules for an international court composed of judges who speak different languages and come from different legal cultures. This is a difficult task and I do not suggest the ICTY has 

achieved final success in this area. The Rules of Procedure and Evidence reflect a 

mix between the common law adversarial mode of trial with which we are familiar 

in this country and the civil law inquisitorial mode practiced on the European continent. The mix of those two modes at trial is a hard task to pull off and entails 

trial and error—the ICTY’s Rules have been amended many times since 1994. Nonetheless, they represent a substantial starting point for future courts, ad hoc or permanent. I suggest some form of international criminal court will be around for some 

time to come, and it is unlikely that any one country’s system will be adopted exclusively, but rather that parts of one system will have to be melded with parts of another. Although those of us from a particular country are most comfortable with our 

own procedures, as judges on an international court, we must always ask the basic 

question: are the courts’ procedures basically fair and conducive to a legitimate trial 

even if they do not represent my own preference. Although I have many problems 

with the ICTY Rules, I can still answer the basic question in the affirmative. Defendants are guaranteed under Article 20 of the ICTY Statute virtually the full panoply of rights included in the International Covenant of Political and Civil Rights: 

the trials are public (though they may be closed for testimony implicating a State’s 

security or for extreme cases of danger to a witness); the defendant receives notice 

of charges in his own language and the right to counsel, a right not to incriminate 

himself, and advance receipt of more of the prosecution’s evidence than is provided 

in our own Federal Rules of Criminal Procedure, also a right to present his own witnesses and evidence and a right to appeal. In my experience, the judges with whom 

I have sat have been impartial and thoroughly independent. As a side comment, I 

would venture to say that the internal criminal rules of some national courts in the 

region I have visited are far less in accord with our notions of due process, and, 

were I or someone close to me to be brought before a court outside the United 

States, I would prefer the ICTY to some of those I have seen in the region. The proceedings of the ICTY are televised for public consumption in the Balkans so that 

its transparency throughout the region is assured. 

55

The Tribunal has also produced a protocol for witnesses who are in danger of retaliation in their home territories that allows them to testify with some comfort; it 

includes a special Victim Witnesses Unit that arranges their travel and lodging in 

the Hague, sometimes escorts them there personally, provides in appropriate cases 

for pseudonyms, voice and face distortion onto and in extreme cases for closing the 

proceedings. Over 1,000 witnesses have come to the Hague, almost half of whom 

would not do so without some protection or assistance, and could not have been 

forced to because of the absence of binding subpoena power on the part of the Tribunal. This witness protocol is being adopted in several national systems for the 

first time to implement their own war crime prosecutions. 

PROBLEM AREAS AT THE TRIBUNAL

While I have few doubts about the fairness of the trials at the ICTY, there are 

significant problem areas. Trials have taken too long, averaging over a year and 

some taking two years or more. The Tribunal’s President and judges are acutely 

aware of the problem and have taken steps to shorten trial time; these include a 

pretrial phase in which the pretrial judge attempts to streamline the issues that 

must be tried, sees if concessions or admissions can be made or types of proof agreed 

upon that do not require live witness testimony. New powers have been given to 

the judges in the Rules to insist on a limit to the number of witnesses and the 

length of their testimony. The addition of the ad litem judges means that 6 trials 

can be held simultaneously, two each day in the three courtrooms available. All this 

should help cut down trial time. 

Some of the length of trials is due to special problems inherent in an international 

court. The translation into 3 languages of all proceedings, especially witness direct 

and cross-examination, probably lengthens normal trial time up to 50%. Thus, a 

prosecutor will ask a witness a question in English (or maybe French). That question must be translated into Serbo-Croat for the witness to answer. The answer in 

turn must be translated back into English and French for the judges to hear, for 

the prosecutor to continue his line of questioning or for the defense attorney to engage in cross-examination. There are sometimes disputes over the translations and 

in trials with hundreds of witnesses the process inevitably takes time that cannot 

be reduced. Witnesses often come from far away and since they cannot be forced 

to appear schedules must be adjusted to some degree to their convenience. The 

sheer volume of evidence necessary to document movements of hundreds of people 

over many months and the paucity in some cases of written documentation means 

a large number of fact and expert witnesses must be heard. 

Nonetheless, I believe that certain structural changes could increase the speed of 

trials:

1. Assignments of judges are now made to chambers rather than to cases from 

a central calendar. That means in some cases, as happened to me in my first 

few months at the Tribunal, a newly arrived judge has nothing to do until the 

other two judges in her chamber finish prior judgments. More fundamentally 

in future Tribunals, thought might be given as to whether three trial judges 

must sit on all cases; there is of course no jury and the continental practice is 

to have one professional judge and two lay judges. But candidly having three 

professional judges sitting every day for a year on a trial struck me as a questionable use of judicial resources. I recognize that for perception reasons it may 

be unwise to have a single judge from one country decide alone the fate of a 

high profile leader of another country, but there may be intermediary ways in 

which one judge can take testimony upon which all three will decide the case, 

as magistrates often do in our federal courts, or some defendants might agree 

to a single judge trial for quicker scheduling. The Control Council No. 10 order 

that authorized the hundreds of trials of mid-level Nazis after the main Nuremberg trial used single judges.

2. I also think that assigning legal assistants directly to the judges rather 

than to the Chambers as they now are, would facilitate decision-making. Legal 

assistants are organized in a somewhat bureaucratic fashion under a chief legal 

officer, answerable ultimately only to the presiding judge of the chambers, who 

parcels out research and drafting assignments. I believe decisions could be accelerated if one or more of the judges were given the responsibility of producing 

draft decisions and the legal assistants were assigned directly to individual 

judges. In general, I thought there were too many interns and legal assistants 

coming and going, the direct usefulness of whose work in the final judgment 

sometimes eluded me. I am comparing the experience to my D.C. Circuit experience where law clerks work directly for the judges and are selected and evaluated by them with no bureaucratic intermediary.

56

3. The Tribunals have three separate organs—the Office of the Prosecutor 

(OTP), the Court, and the Registry which basically services the court and the 

prosecutor. In our federal system, of course, the Administrative Office of the 

U.S. Courts works directly for and under the federal judiciary. The independence of the Registry at the ICTY to which the court must make all requests for 

support makes it more difficult for the court to get what it needs when it needs 

it, be it translators, supplies, priority services; they must be negotiated for. 

There is a coordinating committee on which all three branches sit, but I still 

find it anomalous that the court and the administrative arm serving the court 

are on a par with one another. In general, it seemed to me that while some 

parts of the Registry were understaffed, i.e., the Victim Witnesses Unit, others 

such as the security service which basically guards only the courthouse building 

were overstaffed. Were the judges to have a stronger say in the allocation of 

personnel and resources I suspect the Registry could be slimmed down considerably and the overall costs of the Tribunal which represent a major component 

of all non-peacekeeping costs of the UN could be reduced. The unhappiness of 

the UN with the expenses of the Tribunal is well known; it has reportedly refused to consider any more ad hoc tribunals that replicate the ICTY model. 

Therefore, revised and more economical structures are important factors to consider if more ad hoc Tribunals are created.

4. In contrast, defense counsel are in need of more attention. Many are not 

trained in the techniques of cross-examination used in ICTY proceedings or 

even in the Rules used in the courtroom. This engenders delay. The facilities 

for their work at the Tribunal are minimal—most are away from their offices 

and need access to computers, copiers, faxes, libraries. The norms of ethical behavior and the disciplinary mechanisms for ethical violations have been sketchy 

until recently; since defense counsel come from many different legal systems 

they do not bring a common set of ethics or legal practices to their work. Rigorous and independent counsel are essential to a fair trial, and the morale, integrity and efficiency of the defense counsel at the ICTY need to be given more 

attention.

5. I have said publicly in the past, and repeat, that in assigning presiding 

judges in complex trials, attention should be paid to the judges familiarity with 

and experience in the courtroom. I do not undervalue the contribution of international law scholars to the Tribunal’s work, but a complex trial is primarily 

given over to the day-to-day decisions on the admissibility of evidence, the legitimacy of witness questions, the objections of opposing counsel etc. A judge with 

trial management skills and experiences can move a trial faster and more efficiently than one without that training and, frankly, with a prospect of fewer errors that could cause reversal on appeal. I am pleased to note the new ICC requires a majority of judges to have criminal procedure experience of some kind. 

CONCLUSION

You will note that these observations pertain mainly to the efficiency not to the 

fairness of the ICTY proceedings. In the main, I was impressed during my two years 

with the integrity of the judges and their devotion to a fair result and with the 

idealism and dedication of many staff members. I have little doubt that the Tribunal 

will find its rightful place in history for its pioneering steps in translating international norms of war and humanity into enforceable tenets of accountability, in developing and clarifying amorphous doctrines of international law, and in conducting 

fair trials for those responsible for some of the worst abuses of human rights since 

World War II. 

Thank you for this opportunity to present my views.

Chairman HYDE. Thank you very much. 

Mr. Lantos. 

Mr. LANTOS. Thank you, Mr. Chairman. Let me thank all three 

witnesses. 

Unlike the three of you, I am not a lawyer, which allows me to 

ask some very naive questions. I find your argument, Mr. Hammond, specifying a flawed indictment singularly unimpressive. If in 

fact I would have a dime for every flawed indictment in our own 

judicial system, I would be a very wealthy man, and the fact that 

you can point to a flawed indictment is just a fact of life. I mean, 

it is regrettable. Every time there is a flawed indictment it is reVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
57

grettable. It does not address the issue of what do you do when 

horrendous crimes are committed and the national judicial authorities are either nonexistent or the political situation is such that 

they are incapable of bringing these criminals to justice. That is 

the issue we are dealing with. 

I could not care less how many flawed indictments you can point 

to in this country, abroad, or by the international tribunal. That is 

a non-relevant item. 

I also must say, Professor Rabkin, that while I enjoyed your presentation very much and I would like to take a course with you. Let 

me just say I am sure that the criticism of international criminal 

tribunals, much of it is justified. 

You went back 500 years to find a precedent. I do not believe in 

progress in all fields, but one of the great steps forward that I have 

noticed in recent years is that human rights has trumped sovereignty. Hitler’s gas chambers were functioning within the national jurisdiction of the Third Reich, but Nurenberg demonstrated 

that there is a higher authority than the sovereignty of Nazi Germany, and I suspect the Nurenberg trials did a very useful job. 

So the notion that at long last mankind has evolved to the point 

where human rights trump sovereignty, that you cannot just gas 

Kurdish women because you do not like Kurds. You cannot just torture and eliminate Romas because you do not like Romas; that 

there is an international voice which comes in and expresses itself 

in a judicial context, I find extremely heartening and a sign of 

major progress. 

Now, I was very much impressed, Judge Wald, as I have been 

over the many years that I have followed your work, with your testimony, and I think you hinted at several places in your observations what to me is the fundamental item here. 

National jurisdictions in many situations of this kind are either 

unwilling or unable to render justice. Under those circumstances 

the culprits either go free or there is some international mechanism that brings them to justice. I would be the first one to admit 

that clearly there are flaws. This is a new science. This is a new 

mechanism. Any international mechanism by its very nature is profoundly flawed. 

But what is the alternative? What is the alternative if you know 

the Balkins as well as I do? 

There is no local judge, there is no local prosecutor who will have 

the guts to prosecute mass murders because his family will be 

killed. So what do you do with the mass murderers? Do you just 

say too bad, you go free, or do you find a Judge Wald in The Hague 

and see to it that some justice is done? 

I think you need to address the fundamental question which I do 

not believe the two of you gentlemen have done. What do you do 

when horrendous crimes are committed and the national justice 

system is nonexistent, incapable, intimidated, terrified, incompetent, you name it? What do you do then? 

And do not talk to me about flawed indictments. I stipulate there 

are flawed indictments. I am dealing with a generic issue. What do 

you do with mass murderers? What do you do with mass rapists? 

What do you do with the things that we discover in Yugoslavia 

every day, the mass graves? Do you tell the local prosecutor to go 

58

after that? His wife and his daughter will be killed within 24 

hours. 

That is the issue you need to address; not one single flawed indictment. I would be delighted to have any of you react. 

Chairman HYDE. If I could, because we are at the end of our 

hearings and my friend has asked such a provocative question, the 

ultimate provocative question, I would add to your interrogatory, at 

the same time guaranteed due process of law to the defendants and 

help them, immunize them from the hysteria that might well surround their being put on trial. 

It is one thing to say you are a war criminal and you need a 

forum to be tried, but there is another aspect of that same problem 

that says due process of law. You have a right, you are innocent 

until you are proven guilty. You have a right to confront your witnesses. You have a right to subpoena people. Or do we just sweep 

that aside because we lack the institutions to do it, and we say 

you’re going to go on trial before this establishment, which may or 

may not know a thing about constitutional rights as we understand 

them in America? A very complicated question. 

But in any event I would love to hear your answers to Mr. Lantos’ questions. Shall we start with you, Mr. Rabkin? 

Mr. RABKIN. If you want to go that way. Let me just say a couple 

of quick things. 

You are right, I rest my case. [Laughter.] 

You are right on this one point, which is there are circumstances 

in which national governments will not do justice on their own. I 

do not quite understand why we are focusing all of this on the 

Balkins. The national government which has killed more people 

than any other in history probably is the government of China. 

President Bush just went there. He is exchanging pleasantries 

with them. He is shaking their hands. We are saying that it not 

actually the people there right this minute who have done this, but 

it is the people who arranged for the people who are there now to 

be in power. What are we going to do about that? 

I think the honest answer is nothing. Okay? 

Now let’s look next door at Russia. Let us look at all the former 

Soviet Union. We did not insist that there had to be justice even 

though there were horrendous, horrendous atrocities, and I am not 

saying we were right in China and we were right in the USSR to 

ignore this. I am just saying we should first admit that your challenge is not quite so devastating as it sounds because the truth is 

we have learned to live with hair-raising injustice in other places 

because we do not run the world. Okay? That is the first thing. 

The second thing is if you ask what can we do about it, well, I 

think sending in lawyers is not really one of the great contributions. One of the things we have not really got into focus about 

Rwanda is we allowed nearly a million people there to be slaughtered. Judge Wald mentioned Shrebeneza. What happened there? 

There were thousands of people slaughtered. Why? Because the 

U.N. said this is a safe harbor, come on here and we will protect 

you. And then when these people were attacked, the Dutch troops 

said, oh, sorry, we are busy, we do not want to take any risks. 

Right? 

59

What you ought to be putting in focus is yes or no, are we willing 

to use force, because when you reach into a country and say we are 

going to try your leaders, for 500 years people have understood 

that to be an act of war. And we are now saying no, it is not an 

act of war, and we do not actually want to have war because we 

do not actually want to use force, we just want to kind of make a 

gesture. 

What we actually have done in Rwanda is to protect the perpetrators of the genocide. We did nothing to stop the genocide, and 

afterward what we have effectively done is rushed in there to protect the people who did it. Okay? We have nothing to be proud of 

there. 

It may be true that there are a number of cases in Yugoslavia 

where we can feel satisfaction that somebody who really deserved 

to be punished is going to be punished, and it may well be true, 

I do want to admit this, it may well be true that some of those people would not have been punished otherwise. But the fact is, and 

it is a very important fact, we are not even waiting to sift through 

this and find out. We are saying we are in it, we are having fun, 

we are satisfying ourselves, and so let us keep going. 

And the most sensational trial of all is the one that is just starting now against Milosevic, and there it just is not true that we 

know he would not have been tried. As a matter of fact, we had 

a lot of reasons to think he would have been tried because the people who came to power came to power by overthrowing him, and 

they represented a lot of people in Serbia who were very angry at 

him. So we hear over and over again from Judge Wald and Ambassador Prosper and everybody else in this, of course want to have 

cooperation, of course this is a joint thing, but it turns out to be 

a cooperative and a joint thing in which the outsiders are in the 

driver’s seat. The outsiders follow their own agenda. And their own 

agenda mostly is making themselves look good. 

There is no way around that if you bring outsiders into it. All 

I am saying, and I think it is a serious point, we should take a 

deep breath and say how much do we want to let this loose in the 

world, the idea that outsiders can come in, not through a war, not 

taking full responsibility for the territory, which is what we did in 

Germany and in Nurenberg. I mean, that is different. We were 

running the country. We were the sovereigns of the country. We 

said so on the first day of the trial, we are in charge. That is why 

we are doing this trial. If you do not like it, too bad. You surrendered unconditionally. We are now in charge. 

What we are doing in Yugoslavia is totally different. It is saying 

we are going to sit on the sidelines. We are not actually going to 

protect the people who go to Shrebeneza. We are not actually going 

to take responsibility for what happens in Kosovo, even when we 

have troops on the ground. We are going to be a little lean and a 

little loud, and anyway sovereignty is not serious because it is compatible with being a little lean and a little loud. 

Do we want a world which is organized in that way? I think if 

we say yes, we are happy with the world organized in that way, 

two things follow: One is this cannot go on much longer without 

people saying why is not American accountable just like everyone 

else, so there is going to be more momentum to try Americans, and 

60

that is trouble, and it is particularly trouble when we are trying 

to fight a war by our own standards and not by the standards of 

people in Europe. That is one. 

And the second thing is it is going to hurt a lot of small countries. Some of them may deserve to be hurt. Some of them do not 

deserve to be hurt. And I am not saying this to appeal to you. I 

am saying it because it is one of my concerns. Israel is going to be 

one of those countries. 

If you look at humanity, if you look at the U.N. when they get 

together to do justice, they go to South Africa and they organize a 

Nurenberg rally, and everybody stands up and says let us talk 

about international racism. There is one practitioner up in the entire world that we need to focus on, it is Israel, Israel, Israel. 

It is not a good thing to let loose into the world this doctrine that 

everybody is responsible for everybody else, and whoever is strong 

enough just sets up a tribunal and goes and tries whoever he 

wants to. That is a very dangerous thing for the world, and I think 

the United States ought to be using its influence to say, wait a 

minute, hold on a minute. The norm ought to be every country is 

responsible for itself. And if there are exceptions, we want to articulate very carefully what they are, which we have not done, I do 

not think, in Rwanda or in Yugoslavia. 

Chairman HYDE. Mr. Hammond. 

Mr. HAMMOND. Thank you. Mr. Lantos, I will be brief and direct. 

My point was not that there is one flawed indictment. My point 

is that in order for a tribunal like this one to gain and deserve the 

respect of the world community it must be one that gets down to 

the details of doing justice, of providing due process of law, of taking extraordinary care. 

My concern is that there is example after example after example 

of situations in which that is not happening. I said in my remarks, 

and I will stand by them, I am not an opponent of the ICTY. I was 

not an opponent of it when I served on the ABA task force. I am 

not an opponent of it now. I am not an opponent of an international 

criminal court in concept. 

What I am an opponent of is an organization that is designed to 

convict, that does not care when someone is wrongfully charged. 

Let me give you one example from this country, a very quick one. 

You undoubtedly know about the Department of Justice’s Office 

of Special Investigations, OSI, an office that for many years deserved tremendous respect in this country for the prosecutors and 

what they did. And as you may well remember, they made the decision to advocate the deportation of a man known as Ivan the Terrible so that he could be tried for tremendous war crimes at 

Trablinka. He was supposed to be the killer of Trablinka. Remember him? 

We deported him to Israel. We did not turn over, OSI did not 

turn over information in its possession showing that in fact he 

might not be Ivan the Terrible but an entirely different Ivan. He 

went to trial in Israel and was eventually acquitted. 

My point is this: What has happened to the respect of OSI? A 

court of appeals in this country at the same level of Judge Wald’s 

court, the Sixth Circuit, has handed down a blistering opinion saying the work of those prosecutors does not deserve the respect of 

61

our country, and I believe that is true. And what has happened is 

that some very good prosecutors, very good men working on important projects have had their respect, the respect that we need if we 

are going to do these jobs, tarnished. And I believe the same thing 

will happen to this tribunal. 

When evidence is withheld, as it has been in some of these cases, 

when prosecutors hand down indictments that if they did any kind 

of reasonable investigation they would know are without merit, we 

have a problem. We cannot just pretend that there is due process 

of law. We must look at it carefully, and we must ask ourselves are 

we really doing all we can. And my thesis is we are far from that. 

Chairman HYDE. Judge Wald. 

Judge WALD. A few remarks. Professor Rabkin, certainly the ad 

hoc tribunals have been criticized for the so-called selectivity. I 

mean, you pick out this particular conflict and do it, and then—

why did you not do one there. There is no easy answer to that. 

Even his preferred solution of military intervention is always going 

to be a selective decision made upon big basic global policy grounds 

that I am not equipped to second guess. Do we send the military 

expedition into this country and not that country? 

I will say on the concept of a criminal court, an international 

criminal court, I am not expert in the details, even the details of 

why we are not backing one. But the concept of one would in some 

ways diminish that particular criticism, because it would be drawing upon whatever charges came from all around the world rather 

than making a decision to go and set up a tribunal in one place 

rather than another. 

I do want to refer to your particular concern, Chairman Hyde, on 

due process, and tell you that when I first got over to the tribunal 

after my experience in the Federal courts here a lot of things did 

surprise me. There are differences in the rules of both the tribunals 

from those of the Federal rules of criminal procedure under which 

we operate here. 

But I think that if we are ever to be involved in any of these 

international courts, tribunals of any sort, we must recognize first 

we are never going to be able to exactly replicate our system. The 

jury system, while I think extremely highly of it, is not a system 

which is practiced in most parts of the world. And I think most of 

us would not say you cannot get justice in France, or Italy, or Germany because they do not have a jury. 

I think I came to see, drawing deep down on what I thought were 

the most basic fundamentals to a fair trial, that I do believe that 

those are in place in the rules. All the rules basically of the European Convention on human rights, as far as the rights of the accused, not a jury trial, but all kinds of rights to present the defense, to be informed of the charges against you, rights to counsel, 

guilt beyond a reasonable doubt, rights to appeal, et cetera, are 

there. 

Now, I do think, in answer to Mr. Hammond, that I would give 

way to nobody in the fact that I griped continually that none of 

these institutions will work without good people. Our own courts 

do not work unless we get good people into them, as you legislators 

are fully aware of your responsibility in part, at least the Senate’s 

responsibility in part, about that. 

62

The same is true over there. There has to be a high level of concern about who the prosecutors are, who the judges are, and who 

are all of the aids. There is no getting away from that. That to me 

is the only answer that I know of as to whether a particular indictment is not as good as it should be, the same way as it is in our 

own country. 

Hopefully, with experience, and I think even in the 2 years I was 

over there, with the griping of people like me, things did get better. 

People did concentrate, maybe a little bit more, on certain aspects 

of it. But I think that due process is a term which we must realize. 

We have to define the most basic parts. We cannot have everyone 

of our 150 rules of Federal criminal procedure exported in toto. 

Chairman HYDE. Well, I agree with you, Judge Wald, but I also 

wonder what you do with those annoying words, ‘‘No person shall 

be deprived of life, liberty or property without due process of law.’’

Now, those are wonderful words. They make a promise to every 

person in the United States. And to leave that to a Syrian court 

or a Bangladesh interpretation of due process with different culture, different history, different traditions, different everything, I 

do not know how you reconcile guarantee of due process under our 

constitution. 

Judge WALD. Well, one answer, for one thing, to a certain degree 

you can never get an absolute guarantee from any risk. Two things: 

One if an American citizen or even an American serviceman goes 

to some foreign country and allegedly commits a crime there, okay, 

he is going to be tried by that foreign government. 

Chairman HYDE. Sure. 

Judge WALD. And he is going to be tried according to the rights 

that are given by that foreign government. 

I do have to tell you that for 10 years I traveled extensively in 

that part of the world myself on behalf of the American Bar Association before I went on to the international court, so I have been 

in many of those national courts. I would tell you that, frankly, 

were some member of my family to be caught in such a predicament I would much prefer that he or she be tried at The Hague 

than in several of the other courts that I went to there. 

The second thing is due process. We all know it is a term that 

has evolved and been interpreted many, many ways. We extradite 

people to foreign lands on occasion. We certainly have the structure 

in place in our own government to extradite people, American citizens to be tried in foreign countries which have different systems. 

So I am just saying that I think that there are traditionally some 

exceptions to the notion that our down home version of due process, 

which I still think is the best in the world, make no mistake, simply cannot be replicated in every single circumstance. But we do 

have the right, we do have the right to demand that the basic elements of fair trial be in any international tribunal which we support. 

Chairman HYDE. Very well. I think we can go on on and on. This 

is an utterly fascinating and consequential issue, and maybe an imminent issue. 

But Mr. Smith has asked if he might ask one more question, and 

so with modest reluctance I recognize Mr. Smith. 

Mr. SMITH OF NEW JERSEY. Thank you, Mr. Chairman. 

63

Judge Wald, let me just ask you a few more questions. 

Judge WALD. Surely. 

Mr. SMITH OF NEW JERSEY. A few days ago I met with President 

Kostunica, and pressed him to be more cooperative. Obviously, a 

condition of the U.S. foreign aid is based on whether he cooperates 

or does not cooperate with AID. If he does, the money will flow and 

move his government forward in the direction of democracy. And 

you pointed out the reluctance of some of the ‘‘homeland heros,’’ as 

you called them in your testimony, to cooperate. 

Judge WALD. Yes. 

Mr. SMITH OF NEW JERSEY. I think that may still exist in Serbia 

or Yugoslavia. But he did raise the criticism, as did others. The 

speaker met with him, and I hear that in Belgrade, some of the defendants in The Hague spent an inordinate amount of time awaiting trial. We know that a speedy trial sometimes is a euphemism, 

but hopefully there is an effort to do so. 

Could you shed some light on that problem? How long are these 

people waiting? 

Judge WALD. Yes. Of all of the criticisms which have been voiced 

today vis-a-vis ‘‘rights of defendants,’’ I honestly think this is the 

most serious one, and I will tell you what I know about it. 

I do not have the exact figures, but my impression and I think 

it is fairly accurate is that when I left the tribunal in November 

most defendants who were on trial had been in detention for between 2 and 21⁄2 years. Now, a special case like Milosevic kind of 

got put up to the head of the line. But the rest of them had been 

there for approximately that period. In Rwanda, I think it is even 

longer. 

Now, this was a concern of the tribunal, and let me tell you very 

rapidly what is being done to try to bring that period down, and 

too why I think inherently trials are going to take longer over there 

no matter what we do. 

First of all, the U.N. did provide for a core of 29 ad litem judges 

in the last 2 years. Ad litem judges means they just go over there 

for a couple of trials. They do not get a regular long term, but they 

are able to sit on the trials, and as you know the trials are done 

by panels of three judges, so they make up the three judges. 

So right now the tribunal could not operate any more trial than 

it is because there are only three courtrooms, and these courtrooms 

have to be high-tech courtrooms because you have simultaneously 

everything going in three languages, Bosnia-Croat, French, and 

English, including the witnesses, the prosecutors, the judges, et 

cetera, so that we now have, my understanding is, six trials going, 

one in the afternoon and one in the morning. 

The President of the tribunal, if I remember correctly, believes 

that or has scheduled it so that anybody who was in detention 

about the time I left would begin trial or the immediate pretrial 

period getting ready for the trial within 2002. I hope I have that 

right, but that is my memory, because everybody is very worried 

about this. 

I have always said I thought there were some things more said 

publicly. I thought that care ought to be taken, perhaps more care, 

to assigning experienced managerial trial judges to run complex 

trials; not to say they may not be fair, but they are going to be 

64

more efficient if you have somebody with that kind of background 

and experience. I am hoping somebody will pay attention to that. 

They have put a lot more emphasis on pretrial management, to 

bring things down. And the last thing they have done is they have 

begun to release some defendants provisionally, those that surrendered initially and where the government, and in fact the Serbian 

government in the case of Mrs. Plafsik, and the Croatian government and some other cases where they will absolutely send their 

representative to the tribunal and guarantee that these people will 

be supervised in their home territory and that they will return for 

trial, so that that practice is beginning to pick up. 

Interestingly enough, Madeleine Albright submitted an affidavit 

in favor of the provisional release of Mrs. Plafsik, who is now provisionally released to Serbia. 

There is a certain amount of inherently longer time that it takes 

for trial for these cases. The translation itself, just what I have emphasized, every word, every direct question, every cross-examination raise the time up to 50 percent. The trials are very complex, 

and witnesses have to come from a long way. 

Mr. SMITH OF NEW JERSEY. Would your idea of plea bargaining, 

and you pointed out the New York Times article——

Judge WALD. Yes, that is a very interesting question. Everybody 

thinks probably there is a little plea bargaining going behind the 

scenes, but there is no regularized system of plea bargaining akin 

to ours which, as we all know, accounts for 95 plus percent of all 

of the convictions that take place in the country. 

I have said publicly that I thought that in order to reduce the 

backlog, especially for the mid or lower level defendants, a rational 

transparent system of plea bargaining might make a great deal of 

sense to finish things up quickly for some of the less notorious. And 

I know that we have had some guilty pleas, and you know, evidence would suggest, although I am not in the prosecutor’s office, 

that some bargaining must have taken place in order to bring them 

about. 

I think it is a sensible suggestion. I hope they will give thought 

to it. 

Mr. SMITH OF NEW JERSEY. Thank you. 

Chairman HYDE. Mr. Payne, do you have any questions or have 

we exhausted your curiosity. 

Mr. PAYNE. No, I probably have exhausted yours, but I do have 

a question, and I will keep it within the 5-minute limit. 

Mr. LANTOS. Will my friend yield for a unanimous consent? 

Mr. PAYNE. I certainly will. 

Mr. LANTOS. Mr. Chairman, I ask unanimous consent that the 

written testimonies of Louise Mushikiwabo, an expert on international criminal tribunal for Rwanda, and David Stoelting, Chair 

of the International Criminal Law Committee of the American Bar 

Association, be made part of the record. 

[The information referred to follows:]

65

PREPARED STATEMENT OF LOUISE MUSHIKIWABO

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA SHOULD BE MORE EFFICIENT

BUT DESERVES CONTINUED SUPPORT

My name is Louise Mushikiwabo. I was born and raised in Rwanda, where I graduated from the National University of Rwanda’s Foreign Languages department. In 

1986, I received a scholarship from the University of Delaware to pursue graduate 

studies in French and Conference Interpretation. After graduation, I moved to the 

Washington area where I have been working in Public Relations. 

As a direct beneficiary of the work of The International Criminal Tribunal for 

Rwanda, I would like to appeal to you, Mr. Chairman, Members of the Committee, 

to ensure that the International Criminal Tribunal for Rwanda urgently takes necessary steps to remedy its many shortcomings and fulfill its mandate effectively. 

From the beginning, the ICTR has been a disappointment to many Rwandans due 

to its remoteness from the people it is meant to serve, its desperately slow pace despite its huge budget, its lack of expedience concerning genocide masterminds, and, 

more important for the victims, insensitivity towards their plight. 

Despite all of this, however, I feel that the work of ICTR is critical. The time has 

come for the ICTR to be pressured and reminded of its mandate, and I appeal to 

your Committee to do so. I am afraid that the ICTR weaknesses that have been observed for six years now might bring Security Council members and other powerful 

players to ask for the termination of the tribunals’ activities, or the enforcement of 

an uncertain phasing out procedure, leaving many international criminals on the 

streets of foreign capitals while their victims despair for the justice expected, no 

matter how little. 

In the wake of the shooting down of President Juvenal Habyarimana of Rwanda 

on April 6th, 1994, members of the Rwanda army and the Hutu militia, the 

Interahamwe, went on a deadly rampage across the country, slaughtering members 

of the Tutsi ethnic group and any moderate Hutus who might have sympathized 

with them. Over the next three months, they murdered somewhere between 800,000 

and a million people, including most of my family. 

My life was turned upside down. In a country where impunity had allowed a portion of the population to believe that they could get away with murder, I decided 

to pursue justice for my family, relying on international law. I came from a middleclass Tutsi family with no political ties until 1991, when one of my brothers, a University professor named Lando Ndasingwa, decided to join the pro-democracy movement. Eventually he became the government’s Minister of Labor and Social Affairs, 

and was the only Tutsi in the cabinet when the genocide started. He had been active 

in trying to facilitate the return of Tutsi refugees living in the Diaspora as well as 

the recovery of their basic rights. He was always vocal on behalf of equal treatment 

for the country’s minority groups. Thus, I feared that he might be one of the 

Interahamwe’s primary targets. My fear was borne out. 

As news reports trickled in that the Interahamwe were hacking people to death 

with machetes, I feared the worst. I was on the phone day and night with my family. But early in the morning Washington time on April 7, the phone lines to all 

of my relatives in Rwanda went dead. The following day I read in a wire story that 

my brother was missing and presumed dead. I was devastated. But what I did not 

know was that my brother was not the only one I lost. 

As best as I have been able to piece together, this is what happened. In the first 

days of April, my mother went for an extended visit with my brother at the home 

he shared with his Canadian wife and their two children. The home was located in 

the Kimihurura neighborhood, not far from a base of the Presidential Guard, the 

Rwandan military elite unit. Knowing the sensitive position my brother and other 

moderate politicians were in, the UN Mission in Rwanda had placed armed guards 

in front of their homes. But, on the morning of April 7, as elements of the Presidential Guard approached, the Ghanaian blue helmets stationed at my brother’s 

house fled. Within the hour, the soldiers entered the house and murdered everyone 

inside: my brother, his wife, their seventeen year-old daughter, fifteen year-old son, 

our mother and another nephew who was visiting. 

Across town, Rwandan soldiers entered my sister’s house and ordered her and her 

husband to go to the police station for questioning. Belgian UN troops took her children to a near-by school called ETO for safekeeping, where about 3,000 people had 

sought UN protection. My sister and her husband were subsequently released, and 

went into hiding with some Hutu neighbors for about a month. Their children, however, would not be so lucky. 

The Belgian peacekeepers were ordered to evacuate Rwanda and, on April 11, 

they left the ETO school, leaving the 3,000 people inside to fend for themselves 

66

against the Interahamwe. As soon as they left, the killers entered the school and 

immediately targeted my nephew Safari Habimana. With the killers in hot pursuit, 

my nephew ran toward a nearby house for shelter, but the owner slammed the gate 

closed and refused to let him in. The Interahamwe hacked him to death on the spot. 

The 3,000 others who had been hiding in the school fled about two kilometers up 

Nyanza Hill, but the Interahamwe soldiers soon found and killed them, too, using 

machetes, sticks, hand grenades, and guns. 

Interahamwe soldiers led by the local mayor, also burst into the home of my other 

brother. He begged them not to kill him with machetes, so they agreed to shoot him, 

but only if he could pay for the bullets. He did not have much cash on him, so he 

offered them his refrigerator, an iron, and several other appliances. Satisfied, they 

led him outside and shot him. His children, who recounted this story to me, managed to escape and hid in nearby farms for several days before the Rwandese Patriotic Front rescued them. His wife, however, got separated from the children during 

the escape. Her remains were found two years later in a nearby house that was 

burnt by the Interahamwe. A young man suspected of taking part in my brother’s murder managed to escape prison 2 years ago and is living, unbothered, with family 

in Paris. 

A few months after the genocide, the UN Security Council set up the war crimes 

tribunal (ICTR) to prosecute those responsible for committing the atrocities in 

Rwanda. It goes without saying that I, and many other Rwandans, had felt betrayed 

by the United Nations inaction before and during the genocide. Nonetheless, I had 

high expectations for the International Criminal Tribunal for Rwanda (ICTR). However, I was to be sorely disappointed. 

To begin with, the United Nations established the Tribunal not in Rwanda where 

victims of the genocide could follow proceedings, but across the border in Arusha, 

Tanzania. Although this was done for security reasons, the remoteness meant that 

ordinary Rwandans would remain totally unaware of the legal process taking place. 

To make matters worse, the Tribunal announced that it planned to conduct its trials 

in English and French, not Kinyarwanda (the language of Rwanda), so that even 

if Rwandans wanted to follow the trials, they could not. Thus it seemed the ICTR 

was operating with total disregard for Rwandans by ignoring the importance of our 

language and culture. 

The international community and the media in particular are to blame for their 

indifference and lack of attention which allowed the ICTR to operate in a dysfunctional manner without being checked, making one step forward and two backwards. 

Nonetheless, I was thrilled when, a year after its creation, the ICTR issued its 

first indictments. Despite the fact that the man who killed my brother and his family was still at large, I hoped that he would be captured soon. However, my fellow 

Rwandans and I were appalled when we heard about how the accused would be 

treated in UN custody. At a time when most Rwandans were living in poverty and 

struggling just to get enough to eat every day, those responsible for the genocide 

were living in spotlessly clean facilities, were served three meals a day, and had 

access to telephones, the Internet, and a gym. We also learned that their families 

were given UN protection. More shocking than anything else was the fact that some 

detainees in Arusha had access to the latest HIV–AIDS treatment while the surviving raped women back in Rwanda, possibly their victims, had very little medical 

attention. 

Sometime in 1999, ICTR announced that it was going to release Jean-Bosco 

Barayagwiza, one of the masterminds of the genocide. Apparently the United Nations had violated his rights by holding him in detention for too long before he was 

able to appear before the court. I could not even dare explain what that meant to 

many friends and relatives in Rwanda who called and wrote to ask me what was 

going on. The United Nations had done nothing to protect us from the 

Interahamwe’s deadly rampage, and now it was releasing one of the men responsible for it. For me, Barayagwiza’s release held a particular irony because I had successfully sued him in Federal District Court in New York back in May 1994, under 

the Alien Tort Claims Act. 

I was able to pursue some form of justice through the American courts, yet a court 

set up by the United Nations specifically to prosecute war crimes in Rwanda seemed 

unable to mete out justice. My disappointment with ICTR culminated in the fall of 

1998, when I found out that on February 17, 1994, a UN military intelligence officer 

sent a memorandum to the commander of the troops in Rwanda, General Romeo 

Dallaire, informing him of a plot to assassinate two prominent Rwandans who had 

been involved in the peaceful transition of power in 1994. One was Joseph 

Kavaruganda, then president of the Constitutional Court of Rwanda. The other was 

Lando Ndasingwa, leader of the Liberal Party, my brother. That meant that the UN 

mission knew that my brother had been targeted for assassination as early as FebVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
67

ruary 1994, but did not inform him. And not only that, but when ICTR investigators 

interviewed my sister and me in January 1996 about our brother’s death, they 

didn’t tell us what they knew. We have not heard from them since. 

Mr. Chairman, members of the Committee, for seven years now, an ex-Rwandese 

army officer, Captain Cedeslas Kabera, who murdered my brother and his entire 

family is still at large, probably in the Democratic Republic of Congo. Although his 

arrest, along with many other suspected war criminals, is the subject of a State Department’s reward program, I appeal to you to exert pressure on the appropriate 

authorities for his arrest and trial. If for nothing else, the symbolic nature of this 

man’s trial would bring some solace to my family. 

It is laudable that the ICTR has established several precedents in international 

law, which may have implications for courts in Rwanda and elsewhere. It has 

helped tone down the revisionism of Hutu extremists who still believe that the extermination of Tutsi people from the surface of the earth is a minor offense, if that. 

It is therefore my sincere hope that the International Criminal Tribunal for Rwanda, under your careful watch, can begin to set standards in the prosecution of 

crimes as grave as genocide, and send a strong message to world dictators that their 

barbarism will not be tolerated. 

Yes, local justice is very important indeed, and it should be given resources to 

function properly, but a word of caution is in order: where a genocide is planned 

and orchestrated by the State against its citizens, local justice would make perpetrators prosecutors and judges in their own trial or simply render fair trials impossible. 

In the case of Rwanda, luckily, the State machinery that planned the genocide was 

dismantled and a new judiciary was put in place. An international tribunal that is 

perceived as independent and out of the control of the State in question is a better 

tool for justice when it comes to serious violations of humanitarian law . I believe 

that it is only in the context of an international court with the power of an international arrest warrant that the Kaberas and the Milosevics of this world can be 

brought to justice. 

Thank you Mr. Chairman. Thank you members of the Committee. 

PREPARED STATEMENT OF DAVID STOELTING ON BEHALF OF THE AMERICAN BAR

ASSOCIATION

Mr. Chairman and Members of the Committee: 

My name is David Stoelting, and this Statement is filed on behalf of the American 

Bar Association. I am a lawyer in private practice in New York City. I also serve 

as Chair of the Committee on International Criminal Law, and Co-Chair of the Blue 

Ribbon Working Group on Terrorism, of the ABA’s Section of International Law & 

Practice. 

I thank the Committee and the Chairman for the opportunity to comment on the 

important issues being addressed in today’s Hearing concerning the International 

Criminal Tribunal for the Former Yugoslavia (‘‘ICTY’’) and the International Criminal Tribunal for Rwanda (‘‘ICTR’’) (collectively, the ‘‘Tribunals’’). My comments support the continuation by the United States Government of its exemplary support for 

the ICTY and the ICTR. 

The American Bar Association, with more than 400,000 members throughout the 

United States and abroad, has for a decade supported the work of the ICTY and 

ICTR. Through the Central and East European Law Initiative (CEELI), and its sister organization, the Coalition for International Justice, the ABA assists the Tribunals by documenting war crimes, securing financial and in-kind support, training 

defense counsel and conducting public outreach programs. In addition, in 1993 and 

1995, a Special Task Force of the ABA’s Section of International Law & Practice 

(chaired by former State Department Legal Adviser Monroe Leigh) issued two books 

on the jurisdiction, structure and functions of the ICTY. 

THE RECORD OF THE TRIBUNALS

The remarkable achievements of the Tribunals have greatly exceeded initial expectations. In recent years, the Tribunals’ caseload has markedly increased, with 

many high-level defendants in custody. More than thirty persons have been tried 

by the ICTY, and eleven persons are currently on trial, including former Yugoslavian President Slobodan Milosevic. The ICTR now has in custody a significant 

part of the leadership that organized the 1994 Rwandan genocide. 

Most importantly, the Tribunals apply strong due process protections for defendants. These protections are set forth in the Tribunals’ basic statute and rules of evidence and procedure, which have provided a model for trials of international crimes 

by national courts and international criminal tribunals, such as the Sierra Leone 

68

Special Court. The sterling integrity of Richard Goldstone, Louise Arbour and Carla 

del Ponte—the three jurists to have served as Chief Prosecutor since 1993—demonstrate that an international criminal tribunal can function effectively and free 

from undue political influence. 

The many groundbreaking rulings on substantive issues of international criminal 

law also have been significant. These landmark decisions include rulings on the 

crime of genocide, the definition of crimes against humanity, the application of war 

crimes law in internal conflicts, and rape as a war crime and crime against humanity. The Tribunals’ respected body of international criminal jurisprudence also has 

been relied upon by other courts worldwide. 

The costs of the Tribunals are reasonable considering the vast scope and enormity 

of the crimes being prosecuted, and are consistent with the costs of similar largescale prosecutions of international crimes undertaken by national governments. In 

recent years, a number of internal reforms have been instituted that further enhance the Tribunals’ ability to complete their mission. 

AMERICAN PRACTICE AND POLICY SUPPORTS THE ICTY AND ICTR

Bedrock principles of American law and policy favor the criminal prosecution of 

perpetrators of genocide, crimes against humanity and war crimes. The crimes being 

prosecuted by the ICTY and the ICTR, moreover, are recognized by the United 

States as crimes that ‘‘clearly contemplate international as well as national action 

against the individuals involved. Proscription of these crimes has long since acquired the status of customary international law, binding on all states.’’ Amicus Curiae Br. of the United States in Prosecutor v. Tadic, at 20 (ICTY July 25, 1995). 

As this Committee is well aware, the United States played a strong leadership 

role in the creation of the Tribunals by the UN Security Council in 1993 and 1994. 

For nearly a decade, Congress and the Executive Branch have recognized that the 

Tribunals play an essential role in establishing the rule of law in societies that have 

experienced the most horrific crimes under international law. There is a moral imperative as well, which compels the drive for justice for the victims of these heinous 

crimes. As Secretary of State Eagleburger stated in December 1992, at a time when 

Serb forces had overrun most of Bosnia, governments have ‘‘a moral and historical 

obligation not to stand back a second time in this century while a people faces obliteration.’’

These principles favoring prosecution for international criminals have been reflected in decades of practice. After World War II, the United States persuaded the 

victorious allies that the principles of justice for all and the rule of law required 

trials of the vanquished enemy. In the famous words of United States Supreme 

Court Justice Robert Jackson, who served as Chief Prosecutor in the Nuremberg 

trials: ‘‘That four great nations, flushed with victory and stung with injury, stay the 

hand of vengeance and voluntary submit their captive enemies to the judgment of 

the law is one of the most significant tributes that Power has ever paid to Reason.’’

Three prominent American lawyers have served with distinction as judges on the 

Tribunals: Gabrielle Kirk MacDonald, Patricia Wald and Theodor Meron. Numerous 

other American lawyers have served the Tribunals in the Prosecutor’s Office and as 

defense lawyers. 

Congress has been critically important in the prosecution of international crimes. 

In particular, Congress has played a constructive role in applying financial incentives to cooperation with the Tribunals. Indeed, it was only after Congress established a firm deadline for the surrender of former President Milosevic that he was 

transferred to the ICTY by the Yugoslavian government. Since 1993, the Congress 

has approved substantial funding for the Tribunals, as well as the provision of 

equipment and the secondment of personnel. 

In 1986 and 1988, Congress passed legislation asking the President to explore the 

creation of international criminal tribunals to prosecute terrorists, drug traffickers 

and international criminals. In 1996, Congress passed a law permitting ‘‘the surrender of persons, including United States citizens’’ to the ICTY and the ICTR, and 

the U.S. has cooperation agreements with the Tribunals. Last year, following 

lengthy legal proceedings in the federal courts, the United States surrendered a 

high-level indictee to the ICTR that had been apprehended by the FBI in Texas. The 

State Department, pursuant to legislative authorization, also offers substantial rewards for information leading to the arrest of persons indicted by the ICTY and the 

ICTR. Congress should be commended for its generous and bipartisan support for 

the Tribunals. 

The policy in favor of prosecution also arises from treaty obligations. The United 

States is a party to the Genocide Convention, which in Article VI mandates that 

persons accused of genocide be prosecuted by national courts or by an ‘‘international 

69

penal tribunal.’’ The four Geneva Conventions to which the United States also is 

a party identify certain international crimes as ‘‘grave breaches’’ that require punishment. National or international courts may prosecute these crimes: the House 

Report on the War Crimes Act of 1996, which criminalized certain acts as required 

by the Genocide Convention and the Geneva Conventions, stated that 

‘‘[p]rosecutions can be handled by the nations involved or by an international tribunal.’’

THE FINITE TRIBUNALS

The Tribunals were not created to be permanent institutions. Consideration, 

therefore, should be given to how and when to conclude the work of the ICTY and 

ICTR. The Chief Prosecutor, in fact, has already done so in her recent Report to 

the Security Council. 

Proposals that the Security Council should establish a date certain to close down 

the Tribunals, however, may be premature. Setting an arbitrary date in the future 

for the cessation of the Tribunals might have unintended consequences, such as providing a disincentive for governments to cooperate with the Tribunals. It also might 

provide comfort to those indictees still hoping to avoid prosecution, such as Messrs. 

Mladic and Karadic, the architects of the Bosnian genocide. 

An appropriate target date for the conclusion of the Tribunals’ work should depend on the progress of their caseloads. The crimes being prosecuted by the Tribunals are the worst crimes facing the international community. These prosecutions 

should be permitted to proceed, with the necessary support and resources, until all 

reasonable efforts to punish the perpetrators have been realized. 

CONCLUSION

I urge Congress to continue its vigorous, bipartisan support for the important 

work of the Tribunals. The ICTY and the ICTR represent an extraordinary milestone toward the achievement of basic goals accepted by all Americans: the advancement of rule of law in transitional societies and accountability for international 

criminals. The Tribunals also are a product of the best in American judicial values, 

and the continued legitimacy and success of the ICTY and ICTR over the past eight 

years has to a significant extent resulted from the many Americans that have 

worked as judges, prosecutors, defense lawyers and supporters. 

The title of today’s Hearing is ‘‘The U.N. Criminal Tribunals for Yugoslavia and 

Rwanda: International Justice or Show of Justice?’’ There should no doubt that the 

answer to this query is that the Tribunals are without question a constructive force 

for international justice. 

Thank you.

Chairman HYDE. Without objection, so ordered. 

Mr. LANTOS. Thank you. 

Chairman HYDE. Mr. Payne. 

Mr. PAYNE. Yes, thank you, Mr. Chairman. I certainly listened 

to your testimony, and certainly to the response of the Professor. 

I have a question though, Professor. 

I looked at your testimony and you mention that we did not 

press Saudi Arabia to extradite Idi Amin, the butcher of Uganda, 

and we did not press the French to extradite former Haitian dictator Jean-Claude Duvalier, and therefore I guess that was wrong. 

In your opinion, what do you think? Do you think that we should 

have done that? 

And secondly, maybe my question more gets into—I am trying to 

maybe paraphrase what I got—is that it is always like a laissezfaire attitude. You know, problems all around. We should not really 

impose on other countries. The world is big. And so whatever happens somewhere happens. 

I mean, could you kind of clarify your stand? 

Mr. RABKIN. Yes. What you said at the end was very appealing 

to me. The world is big and we are not in charge of it. 

I do think there are some really exceptional circumstances where 

something is going on that is so horrifying that of course we are 

70

concerned, and then we have to think what can we do, what will 

be the consequences and the costs of our doing it, and we have to 

make a political calculation. One of the things which really bothers 

me about these tribunals is that it is a way of pretending that 

there is no real serious political responsibility to figure out what 

to do, what will be the costs, and what will be the consequences. 

And I think in that way this is really symptomatic of the 1990s, 

in which not just the Clinton Administration, but I think much of 

the world said the Cold War is over, the Iron Curtain has come 

down, now relax. And then we look up and we see actually there 

is horrible blood letting in the Balkins, there is genocide in Rwanda. 

And instead of thinking in a real focused, serious way what are 

we prepared to do about it, what actually we can do about it, what 

will be the cost, what will be the consequences, we say, oh, this is 

a problem for international justice, let us send in some lawyers, 

and that is not a serious response. 

I am not saying this is criticism of Judge Wald, but to ask a 

judge to come in and review how many prosecutions there were, 

how many convictions were there, how many appeals, that is not 

a serious response to policy. 

I am sure that if not this Committee, some other Committee has 

had a lot of hearings about the war on drugs or the war on terror 

or some other thing that we call a war, and we would not be satisfied with a judge saying, well, there has been a bunch of prosecutions or there has been a bunch of convictions. We would want to 

know what has actually happened, what is actually happening. 

Have we stopped the flow of drugs? Have we diminished the number of terrorist attacks? And of course, we would want to know 

what is actually happening in these countries. Are we strengthening democracy in the Balkins? 

I do not know. I am not pretending I am an expert. What is actually happening in Rwanda? Are we helping to push forward national reconciliation? I know that sounds absurd when there has 

been genocide. But the fact is these people have to live with each 

other. So what is happening there? 

And the answer is I do not know, but it does not seem to be the 

responsibility of this tribunal even to think about it. What that reflects is our government does not want to think about it, so we 

hand it off to a bunch of lawyers and we say, hey, treat it legalistically, and that is a little bit crazy. It is a very, very exceptional circumstance in which we would be intervening in another country. 

And before we do it we ought to think about what do we want to 

achieve. And as I said, what are the costs, what are the consequences? We should not be legalistic about it, and we sure should 

not be delegating it to international lawyers—nothing against people studying international law, but what I mean is people who are 

not under our control. We have a lot of resources. We have a lot 

of leverage, a lot of influence. Let us think about what are we 

doing with it. 

Instead of that we say, well, there is a bunch of guys in The 

Hague and they are on top of it. Really? Who are they? How could 

they be on top of it? What are we talking about? I think it is fundamentally unserious, and that is what bothers me. 

71

Mr. PAYNE. But I am also trying to find out, do you feel that it 

is the responsibility of the world, and when we talk about the 

world, you know, that is once again, a big place? What I am trying 

to say, if there is no justice, if there is no law, if there is no one 

to try to keep some sort of peace or tranquility in the world, and 

then the world gets horrible situations. I am a firm believer that 

we should step in when we, the U.S.—there really is just one super 

power. I mean, we are the world, and make no mistake about that. 

But it seems to me that it would be like maybe Washington, DC 

without a police force, what would happen. I do not know, or Appalachia, West Virginia. There has got to be some law, someone to 

say you just cannot go and kill 4,000 women because you do not 

like their religion, or a million people in Rwanda. And someone— and I think it is we—we are the world power, with 30 percent of 

its resources, so at least we are a third of the power of everybody 

else put together through a vehicle like the U.N. or international 

courts of justice. Maybe they are too weak, maybe they should be 

strengthened. But there has got to be someone to say enough is 

enough. 

Mr. RABKIN. Could I just emphasize one thing? 

Mr. PAYNE. Yes. 

Mr. RABKIN. Just in the last few seconds you were saying, well, 

it would be as if there were no police, and policing is the part to 

focus on, because the court is nice, you know, afterwards you have 

a trial, but the crucial thing is the policing. We are not serious 

about the policing for very, very good reasons, because it is—you 

know, oh, boy, you know, that is a big commitment to make. 

And also, when we think about countries in the future, do we 

want to police Afghanistan right now? And the answer is, well, no, 

not really. Okay, if you are not serious enough to be policing, then 

you should ask yourself what business do you have judging. 

And just one last quick thing. 

Mr. PAYNE. All right. 

Mr. RABKIN. This is what everyone—this is about Nurenberg. We 

did not say in Nurenberg, well, we will set up a court and then go 

home. We were policing it. We were controlling it. We were actually 

in charge because we were real, real serious about saying we are 

going to control this situation now. If we are not willing to control, 

we ought to be very, very cautious about letting some lawyers have 

the decisive say. 

Mr. PAYNE. Well, I knew we would agree on something if you 

talk enough. [Laughter.] I think we then see eye to eye that perhaps the after-the-fact situation about sending in some judges and 

a few prosecutors is sort of just a little bit too little, too late. 

Mr. RABKIN. Absolutely. 

Mr. PAYNE. In Rwanda, a million people could have been 

saved——

Mr. RABKIN. Right. 

Mr. PAYNE [continuing]. If the small contingent of U.N. forces 

were not suggested to leave, but to have been reinforced. But there 

was a reluctance on the part of the U.N. to have more forces there 

because the U.S. was a billion dollars behind in paying the dues 

for our peacekeeping assessment. We said we do not like the formula, we do not like to pay a third of peacekeeping, the cost is too 

72

much. So the U.N. that has to depend on dues-paying countries, 

and our responsibility for peacekeeping was about a third, or 30 

percent, we are down to 25 now, I think we are down to 20, they 

had no money. And so the dollars were the overriding factor of not 

having peacekeepers in Rwanda or the few there they withdrew, in 

other words. 

So I agree that I think there has to be a world police force that 

should be trained, that should go in, that should not only try to 

keep peace, but to make peace if it is necessary. You have got a 

million people being slaughtered on television, as we saw rivers 

banked up not because of beavers biting trees and clogging up the 

waterways, but the bodies could not flow anymore; and so you had 

dams backing up water because seven-eight hundred thousand bodies were thrown around. 

I mean, there has got to be some way that the world has to know 

that enough is enough. We will go in there. We will straighten it 

up, whoever the ‘‘we’’ are. We have got the U.N. in New York. 

Someone has to be the policemen, and I think we are derelict in 

our responsibility when we do not support a strong operation of 

doing justice. 

President Bush said no longer will the weak countries be overrun 

by the big countries. 

Mr. RABKIN. I will go you one better. We did not need the U.N. 

We could have done this ourselves, and I think the fundamental 

thing was not the money. I think the fundamental thing was we 

just had this bad experience in Somalia where some Americans got 

dragged through the streets and everyone was upset, and the Clinton Administration saying, oh, no, not that, we do not want to be 

involved in Africa, and we do not want anyone else involved either 

because they we might get dragged in. 

And I think that that in retrospect was horrible misjudgment. 

Mr. PAYNE. Absolutely. 

Mr. RABKIN. A shame and a disgrace to the United States. But 

let us again be clear, the world is a big place. There are a lot of 

other people with guns. We may be the last remaining super 

power. That does not mean we have the capacity, let alone the commitment, to take responsibility for the whole world, so we have got 

to think somewhat cautiously and carefully about what are we prepared to do and when. 

And I keep saying over and over, you are not going to get out 

of that by handing it off to somebody in The Hague, and I do not 

think you are going to get out of it by handing it to someone in 

New York, I mean, the U.N. 

Very quickly this is going to come down to what is the United 

States prepared to do, and then we have got to think about it, and 

it is not automatic, and it is not simple. 

Judge WALD. Could I add one partial answer? 

Mr. PAYNE. Yes, please. 

Judge WALD. I do not want to go away from this hearing leaving 

the impression that at least I agree with Professor Rabkin that 

these courts are just an excuse for not doing something more serious. It may be that occasionally that is true, but I do think that 

the United States has gone around the world preaching, rightfully 

so because I have also done it myself, the rule of law; that the rule 

73

of law is something that is not just our province to have, but it is 

something we want to see in the infrastructure of all other countries. 

So I think that regardless of whether or not we have conquered 

the country as we did before the Nurenberg trials, or whether we 

have not yet given in to the notion that terrible, terrible injustices 

and violations of international law and war crimes can happen 

with no vindication anyplace, I think that that is a separately justifiable reason for having these courts. 

I am not suggesting there are not cases we should have gone 

militarily when we did not, or anything else. But I do not agree 

with Professor Rabkin that every time you look at a court you say, 

oh, they have just sent in some lawyers and a few judges to fool 

around till we decide whether we are going to take it seriously 

enough to send in the soldiers. You had only to see those thousands 

of witnesses who had been the victims of many of these crimes, and 

the war was over, but they longed desperately for some sense of 

vindication someplace. 

Mr. PAYNE. Right. And Mr. Smith, I will conclude, but I agree 

that if Mobutu knew that he would have to go to trial somewhere 

for stealing $10 billion from an impoverished country, maybe he 

would have thought twice about it. There has to be some way to 

step in and to eliminate these people. 

Sierra Leone should not go by the way, where people allowed 

hands to be chopped off to show that they are difficult and tough 

people in the army, and keep the citizens under control. If there 

were some trials where people had to pay the penalty, then maybe 

they would think more about that. I do know there was a high cost 

of things, as the professor mentioned. But you know, in the last 

budget we decided to wait until next year’s budget. We are spending, every 24 hours, every time your heart beats in 24 hours, a billion, one hundred million dollars a day for military and defense 

and homeland security, a billion, one hundred million. That is just 

this year. Wait until we put the 40 billion more in there next year. 

It is going to be about a billion, three hundred million dollars every 

single day. I mean, not prescription drug plans, not housing, not 

education, schools to be built. We have got to be protected and we 

have got to have a secure home land, but we are going to spend 

a billion, one hundred million every 24 hours, 365 days every year, 

and that is the lowball this year; wait till next year. 

So you know, I just think that we ought to be able to train someone else if we do not want to go in. But I have been to the courts, 

and I think they do serve a very useful purpose, and I think that 

they in very difficult situations have done an outstanding job, even 

in Rwanda where it has been very slow. 

And so I guess I had better yield. Mr. Smith treats me better, 

he is from New Jersey, than Mr. Hyde does, but I will not take advantage of the Jersey tie. I yield back the balance of my time. 

Thank you. 

Mr. SMITH OF NEW JERSEY. Just for the record, Mr. Payne and 

I chaired the International Operations and Human Rights Subcommittee for 6 years and we had many, many human rights hearings, including on Rwanda. As a matter of fact, we had the Delaire 

hearing when we talked about that infamous fax that had been 

74

sent, and the fact that it was not acted upon by then head of peacekeeping for the United Nations, Kofi Annan, or his staff, and a preventable tragedy unfortunately became one of the most horrific 

events in history. 

One of the things we very often ended up doing was finishing up 

hearings, he and I, hours after everyone else has left. But I just 

have a couple of final questions, and your remarks and your insights are very useful to the Committee, and we thank you deeply. 

As a matter of fact, Judge Wald, one of the hearings that we did 

have was on Shrebeneza. We had a series of hearings and brought 

in survivors, brought in the actual person who did the translation 

services who lost his entire family, and I do think that we cannot 

make right what was done, no doubt about it. The safe enclaves 

were anything but safe. They became an area where people were 

mustered and brought together for further exploitation and killing. 

But my one question is ad hoc versus permanent tribunal, and 

I know, Mr. Hammond, you mentioned that you are not necessarily 

against the Rome statute. But it seems to me that there are inherent weaknesses in having a systematized presence with prosecutors 

who are constantly hailing from countries as we have seen at the 

U.N. human rights meetings that go on in Geneva. I have been 

there a number of times, where you have people sitting in judgment, looking for ways to put monkey wrenches into the process so 

that their collective human rights abuses will not be exposed or 

held accountable. 

It seems to me the same countries coughing up and offering, 

proffering prosecution, seems more likely it is to be compromised 

in the long run, at least that is my belief, and you might want to 

respond to that. 

But I would like to ask a very specific question with regard to 

allocation of resources, and you know, as we know, the ICTR will 

spend almost $90 million per year. It will dispose of about 150 to 

200 alleged cases of genocide. The government of Rwanda, by contrast, has a budget last year of less than 6 million to try something 

on the order of 110,000 to 115,000 genocide suspects that are held 

in its jails. As a matter of fact, we spend more on defense counsel, 

and I am for that, I believe, like Chairman Hyde pointed out, people are entitled to due process rights. 

But when you talk about the allocation of resources, we are not 

doing enough. I do not think, as a country, we are helping Rwanda. 

What is your sense on that? It seems to me that those 115,000 

folks are not going to get, nor are those who lost loved ones, the 

kind of justice they are looking for in Rwanda. 

Mr. HAMMOND. Mr. Smith, let me respond to the first part of 

your question, and I will leave the budget questions to Judge Wald. 

The question of whether we have an ad hoc or permanent tribunal raises in my mind a very important question. Do you have, 

and by you I mean the United States Government as an example, 

do you have the commitment to follow through? To me, that is a 

major issue with everyone of these tribunals, and an advantage of 

having an ad hoc tribunal is that you can ask that question in a 

focused way. 

You can say to the American government if we are going to have 

an ad hoc tribunal at The Hague, for instance, are we committed, 

75

sincerely committed to doing the things that you have to do when 

it is your tribunal; most pointedly, providing information. 

When someone is indicted, for all the reason we talked about 

today, there is a high premium on getting it right, not only so that 

we do not convict the innocent but so that we do not wind up having a tribunal that loses respect. 

So in order to do that one thing that has to happen is people 

have to cooperate, and our government has to cooperate. If we are 

going to assure fair trials when there is American information 

available, as there is in the case I talked about earlier, with tremendous amounts of information available from the American government, we ought to be willing to say we will make that information available so that somebody can get a fair trial. 

It is harder, and I understand this, it is harder to ask the American government to do that across the board. It is hard to say we 

are going to provide information that may deal with sources and 

methods or maybe in some other way privileged in any case that 

comes along, and I can appreciate that. So there is a good reason 

to have a more focused tribunal. 

But whatever you do, when we decide in the name of international justice to prosecute someone, we ought to have the backbone to stand behind that. If that means producing information 

and producing witnesses, I have heard all of this talk about what 

a terrible thing it would be if American political figures had to go 

testify. Why is that? There is no reason why we should be ashamed 

or afraid to have our witnesses go and testify. It is not an indignity. People testify all the time. And if they have relevant information, it ought to be heard. And if we are not prepared to do that, 

then we should not be convicting these people. 

Mr. SMITH OF NEW JERSEY. Thank you. 

Mr. RABKIN. Could I just add one thing about the ICC? 

Mr. SMITH OF NEW JERSEY. Yes. 

Mr. RABKIN I think it is fine if they testify. Americans, I think 

it is fine if President Clinton testifies. He has got a lot to testify 

about, I think. What is not okay is to have him indicted by an 

international tribunal. And I would just say this descriptively, I believe most of the American population would be outraged, there 

would be immense pressure on the United States Government to 

resist an international trial of a top American official, look that in 

the face and then say, how are we imposing this on other people, 

and that is very awkward and a serious problem. 

Mr. SMITH OF NEW JERSEY. Judge Wald. 

Judge WALD. Two very brief remarks. 

One, in terms of the ad hoc versus the full time. As you pointed 

you, one at least theoretical advantage of a regular one is you will 

not have all of the start-up costs, all of the start-up—not necessarily mistakes, but all of the trial and error kind of business. 

Another one will be the prioritization because the prosecutor and 

the tribunal, and I will point out something here that—and I am 

not an expert on the proposed ICC, but what little I know—the tribunal itself, the judges have more control over whether an indictment goes forward than they do in either of these two ad hoc tribunals. In both of these ad hoc tribunals, which we presently have, 

76

it is the prosecutors call, pure and simple, unless the judge says 

you do not have enough evidence to make out a prima facie case. 

In the ICC, the tribunal will have more power about saying 

whether to go ahead with a prosecution or not, and the prosecutor 

and the tribunal will have to prioritize from all around the world 

insofar as charges are made. They are going to have to say, well, 

this is more important to do than that. We cannot do everything 

kind of thing, whereas your example, Professor Rabkin, comparing 

this process to the special prosecutor in the United States, one of 

the criticisms—I will not say whether I agree with it or not—one 

of the criticisms of the special prosecutor was, gee, if you say you 

are a special prosecutor of John Doe, boy, you are going to work 

hard to find out something against John Doe. 

A little bit of that has on occasion been used as a basis of criticism for the tribunals, especially in the middle and lower level 

when they did not have enough big fish that they had actually apprehended. That would, I think, be less so in an international 

criminal tribunal. 

The only other point I want to make us that the ICC, as I understand it, will have something that neither of these tribunals have, 

and which I think is a good idea, and that is the principle of 

complementarity—I am not sure I pronounced it correctly. In both 

of the tribunals now, once the tribunal has jurisdiction of something it has the primary jurisdiction. It can even take something 

away, although in our case it has only done it once from a local or 

national tribunal, but it has priority. 

Now, in the proposed—not proposed, but the ICC, which will 

come into operation as I understand in a few months, that is not 

so in that the tribunal will get jurisdiction only if it can show or 

it can be demonstrated that the national country which would normally have the jurisdiction to prosecute this crime is either unwilling or its infrastructure is so palpably bad that people could not 

trust it to do it. I doubt the second would ever been found to apply 

to the United States. 

Mr. SMITH OF NEW JERSEY. Again, on the allocation of resources, 

does anybody want to touch on that? 

Judge WALD. I just do not know Rwanda. I mean, if I spoke 

from——

Mr. SMITH OF NEW JERSEY. Okay, you said that earlier. 

Judge WALD. Yes. If I spoke from the ICTY, I would say, yes, if 

you sent me in there to be an inspector general or something, I 

would find some places where I think you could cut personnel or 

where you could speed this up. 

Mr. SMITH OF NEW JERSEY. Or ratchet it up on the other end. 

Judge WALD. Yes. Yes, you are right. 

Mr. SMITH OF NEW JERSEY. Monies to the prosecutor. 

Judge WALD. Right. 

Mr. RABKIN. Could I just make one response to that? 

Mr. SMITH OF NEW JERSEY. Yes. 

Mr. RABKIN. It is very awkward if you have an international tribunal to say, well, Rwanda is a different place so we are going to 

have a different standard, but it would have been extremely appropriate for Rwanda to say we are a different place, so we are going 

77

to have a different standard, and that is one of my big concerns 

about this. 

I mean, the international community, which did nothing to protect people while the genocide was going on, then turns around and 

says, oh, we are going to do the trials for you, and they do it in 

a very expensive way and a very formalistic way, and a way that 

actually impedes justice there. 

The question we ought to be asking is not is it costing too much 

money. I think the money is all just small potatoes compared to our 

defense budget. Mr. Payne, I totally agree with you on that. I 

mean, when I say cost, I mean the political cost; the cost in terms 

of our policy. And in those terms we are not making people better 

off in Rwanda. 

Just what the cost of having international tribunals there, it 

seems to me from the outside—I do not claim to be an expert, but 

the cost there is not dollars wasted. Forget that. The cost is that 

here is a country with literally gaping wounds, and we just perpetuate that year after year after year to satisfy our outsider standard 

of how justice should be done, and that is not helpful to them. If 

it is not helpful to them, who are we trying to help? 

Mr. SMITH OF NEW JERSEY. Would any of you like to add anything before we conclude? 

Thank you for your very extensive insights that you provided to 

this Committee, and without any further ado, Mr. Payne, now the 

hearing is adjourned. 

[Whereupon, at 1:50 p.m., the Committee was adjourned.] 

(79)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE CHRISTOPHER H. SMITH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. Chairman, I want to thank you for holding this important hearing. This is 

a topic, the Yugoslav tribunal in particular, on which I have spent a great deal of 

time. Those of us who have served on the Helsinki Commission—from both House 

and Senate—have been among those first to view what was taking place in the 

former Yugoslavia in the 1990s as genocide, to learn from firsthand accounts of the 

crimes against humanity taking place there, and to call for justice, including the indictment of Milosevic for the crimes he now stands accused of having committed. 

The subtitle of this hearing is: ‘‘International Justice or Show of Justice?’’. While 

our Administration and expert witnesses can elaborate on this question, I will start 

with the preliminary answer that the ad hoc tribunals are both. As a Member committed to the protection of human rights, I believe that justice for the sake of justice 

does exist and should be pursued. It cannot simply be a show. Justice, however, cannot be isolated in a vacuum but must equally be shown to bring some closure for 

surviving victims and to vindicate the innocent and wrongly accused, be they an individual, a group or a whole people in whose name atrocities were committed. We 

can hope that the exercise of justice would deter would-be war criminals elsewhere. 

The real issue before us today is whether these two ad hoc tribunals, both of 

which the United States has supported, indeed live up to our expectations of them. 

The establishment of these ad hoc tribunals, I believe, set a positive precedent for 

human rights around the world. For the first time since the Nuremberg and Tokyo 

trials following World War II, those who committed ‘‘serious’’ and ‘‘grave’’ breaches 

of international humanitarian law, in places where domestic justice cannot possibly 

be sought, were nevertheless to be held accountable in a court of law. In both instances, the international community was responding specifically to a particular 

event—genocide—in which the culprits felt they would go unpunished. Similarly, in 

both instances, there was no other recourse but a call for justice at the international 

level. Even then, this was only a part of a larger, and unfortunately belated, effort 

to stop the killing. 

Given this positive precedent, Mr. Chairman, it would be sad if flaws would lead 

the tribunals to fail or keep others from being formed. I am willing to listen to honest critiques of these two tribunals, as well as ways to fix them. Justice on an international level will never be as perfect as it should be, and there are, of course, other 

ways to respond to specific crises where war crimes, crimes against humanity and 

genocide are being committed. I am thinking here of everything from military intervention to truth commissions. Ad hoc tribunals are only one of many tools available 

to the international community, and they are a relatively new tool. 

While some issues we will discuss today may have relevance to those surrounding 

an International Criminal Court, it would be wrong to emphasize flaws in the ad 

hoc tribunals as a way to build arguments for or against the more controversial permanent court. The two types of courts are different in many, critically important 

ways, and I feel I can logically support one while opposing the other. 

I hope this hearing will make evident the continuing and strong support of the 

United States for the ad hoc tribunals, and a commitment by the Bush Administration to support them for as long as their work may reasonably take. Indicted individuals and political leaders should not conclude that if they stall in cooperating 

with the tribunal they will outlast our commitment to them. This would signal that 

we would tolerate some to escape justice for the horrific crimes they have committed. Of course, we should strongly encourage the tribunals to intensify their efforts to ensure that their work is completed in a timely and efficient manner. I 

80

agree, however, with Chief Prosecutor Carla del Ponte’s observation: ‘‘It is neither 

credible nor honorable to give support for the war against terrorism while not doing 

everything possible to bring to justice those responsible for genocide in Rwanda, for 

Srebrenica and other massacres. As with the fight against terrorism, we delude ourselves if we think there is a quick and low-cost solution that does the job properly.’’ Mr. Chairman, we should use the conditionality Congress has placed on assistance to Serbia, where persons indicted for major, indisputable crimes like those 

committed in Vukovar and Srebrenica continue to reside, and where access to information and officials to build and defend cases is known to be limited. Belgrade 

should be made aware that cooperation with the tribunal must be full. A similar 

policy must also be applied to those in the Republika Srpska entity of Bosnia or any 

other place where indicted persons may reside. If present, international forces 

should capture these individuals, but local authorities have the first responsibility. 

Mr. Chairman, the international community could have acted sooner to stop genocide in both Bosnia and Rwanda. In both cases, the international community’s conscious decision not to intervene facilitated the commission of monstrous crimes and 

made our tasks that much more difficult when we did intervene. The ad hoc tribunals not only helped to bring us back from that moral abyss but to move us forward 

a step or two. Hopefully, today’s hearing will lead to efforts that would give the 

phrase ‘‘Never Again’’ ever greater meaning. 

PREPARED STATEMENT OF THE HONORABLE CYNTHIA A. MCKINNEY, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

Mr. Chairman, thank you for calling this important hearing today. I would like 

to thank our witnesses for coming before us today. The administration of international justice is critically important to us all. 

The creation of the two international tribunals—the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for 

Rwanda (ICTR )—was an important symbol for those of us who hoped it would mark 

a new international commitment to hold war criminals accountable for their crimes. 

Despite expending years of effort and hundreds of millions of dollars, many of us 

believe that the Tribunals have not lived up to expectations. Many now view the 

Yugoslavia Tribunal as having become overly politicized and a mere political weapon of the West. Meanwhile, allegations of corruption, mismanagement, and prosecutorial bias have plagued the Rwanda Tribunal. 

Mr. Chairman, I would like to focus my remarks on Rwanda because I believe 

that the ICTR is particularly in need of close examination. 

We must recall with shame how the world turned a blind eye to genocide, allowing Hutu extremists to commit one of the greatest slaughters of the last century. 

In just 100 days, roughly one million men, women, and children were exterminated 

in 1994—all under the nose of the United Nations, the western world, and our own 

government. 

Meanwhile, since the formation of the International Criminal Tribunal for Rwanda (ICTR), little real justice has been meted out to the victims of these horrendous 

crimes. Many of the key offenders remain free and many of those in UN custody 

in Arusha show no sign of being prosecuted any time soon. Also, allegations of widespread mismanagement, corruption, and prosecutorial bias have tarnished the ICTR 

nearly since its inception. 

Since it was formed in November 1994, the ICTR has spent approximately $300 

million, and convicted and sentenced only 7 offenders—about $40 million per conviction. By way of comparison, the ICTY, during the same period, has spent not much 

more—approximately $475 million—and has produced at least 35 convictions. The 

ICTR has just over half the staff (700) of the ICTY (1200), but has an annual budget 

that is roughly 90% ($86 vs. $96 million) of its Yugoslavia counterpart. Moreover, 

whereas the Rwandan government is attempting to dispose of the more than 

120,000 genocide-related case on an annual budget of $5.6 million, the ICTR spends 

more than 15 times that much to dispose of a tiny fraction of these cases. Clearly, 

the ICTR’s problems are not due to a lack of resources. 

At the same time, two independent inquiries conducted by the United Nations Office of Internal Oversight confirmed many of the allegations regarding incompetence 

and corruption, leading to a series of high-level sackings and redeployments. The 

ICTR has also been accused by many of prosecutorial bias and of taking sides in 

the current Great Lakes crisis. Recent reports of improvements in the functioning 

of the ICTR are encouraging but progress remains slow and insufficient. 

The ICTR may be faulted for what it has not done as much as by what it has. 

Its record of inaction is equally disturbing. 

81

Last year, I convened a special hearing to receive testimony from a former FBI 

supervisor, Jim Lyons, who had served as a commander with the ICTR. Lyons testified that the ICTR and senior UN officials have evidence of Kagame’s role and that 

of his security forces in the 1994 shooting down of the Presidential aircraft killing 

Rwandan President Habyarimana and all on board. What has the ICTR done to pursue this? 

Or the report from Nick Gordon in the April 21, 1996 edition of the Sunday Express newspaper (‘‘Return to Hell’’), in which he recounts how thousands of Hutu 

civilians were killed and then incinerated in Kagame-operated death camps? 

Or that of the Rome-based Catholic Church news agency MISNA that Rwanda 

was using its prison population as forced slave laborers in eastern DRC to mine 

coltan (while our own U.S.-based mining corporations were profiting from the minerals extracted by this Rwandan slave labor)? 

Or the accusations that Rwandan troops under the command of the General 

Kagame slaughtered an estimated 4,000 Hutu civilians at the Kibeho refugee camp 

in 1996? 

Or the testimony heard last year before this very Committee from the International Rescue Committee (IRC), that an estimated 3,000,000 civilians have now 

died in eastern DRC as a result of Rwanda and Uganda’s combined 1998 invasion? 

Or the numerous other findings by Amnesty International, Human Rights Watch, 

and the UN’s own Special Rapporteur Roberto Garreton that Rwandan troops, 

under Kagame, have slaughtered countless civilians both in Rwanda and in the 

DRC? 

Nothing. On all of these counts, nothing. 

No consequences. No outrage. No meaningful action by the international community. There is, in effect, no justice. 

And from our own government? More silence. 

Indeed, the current Bush Administration has continued the previous Administration’s policy of appeasement of Kagame and grants him audiences in this very city, 

despite his record of war crimes. 

Just two weeks ago, a Rwandan Colonel by the name of James Kabarebe—a man accused of personally committing atrocities in eastern DRC—was the guest of the 

Bush Administration here in Washington. Contrast this with the State Department’s announcement this week that it would bar Zimbabwean President Mugabe 

and 19 of his top officials from entering the U.S. for election-related violence and 

intimidation. 

The irony, of course, is that as war criminals file in and out of Washington, we 

are supposed to be waging an all-out ‘‘war against terrorism.’’ But the line between irony and hypocrisy is indeed a thin one. 

Following its aerial bombardment of Yugoslavia, Amnesty International accused 

NATO of serious violations of the laws of war in its conduct during Operation Allied 

Force in 1999. Not surprisingly, NATO summarily dismissed the allegations and the 

ICTY refused to investigate the matter. No justice there for the hundreds of civilians killed in the NATO bombing raids. These and other shattered lives can simply 

be written off as ‘‘collateral damage.’’

Thus, while we prosecute selected figures before the ICTR and the ICTY and 

threaten the same for war crimes committed in Sierra Leone, Cambodia, Iraq, and 

Sudan, we ignore others when they are committed in Colombia, DRC, the Middle 

East, the Republic of Georgia, and elsewhere as ‘‘self-defense,’’ ‘‘national security,’’

or, lately, as part of the ‘‘war on terrorism.’’

Has the pursuit of international justice been trumped by strategic and political 

expediency? Apparently it has, as our own government continues to oppose the 

International Criminal Court and the Rome Treaty primarily because of the prospect that Americans might be brought before it. Reports that the Bush Administration is now working to eliminate the ICTR and ICTY altogether will only reinforce 

the perception that the United States is interested in international justice and 

human rights only to the extent that these can be used as a political weapons. 

So what are the new standards of international justice in the world? 

That if you’re a first world military and economic power you can drop cluster 

bombs on civilian neighborhoods, or blow up civilian trains on bridges, or destroy 

the power or water supply of others with impunity? 

But if you’re not a member of this elite club (or one of its allies), then you face 

U.S. and UN sanctions, are branded a ‘‘war criminal’’ or a ‘‘terrorist,’’ or are lumped 

into an ‘‘axis of evil’’? 

Exactly how many standards of justice are there? 

Perhaps the more pressing question is: what will be the future of international 

justice? Ostensibly, global enforcement of international human rights standards ostensibly are in the hands of the United Nations and its international justice instituVerDate Feb 1 2002 15:22 Apr 30, 2002 Jkt 077893 PO 00000 Frm 00085 Fmt 6601 Sfmt 6621 F:\WORK\FULL\022802\77896 HINTREL1 PsN: SHIRL
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tions. But given the global economic, military, and political realties of today, will 

the UN, the international criminal tribunals, and other institutions simply become 

instruments of American unilateralism and a means for powerful states to coerce 

weak states into selective compliance? 

Thank you, Mr. Chairman. And I look forward hearing from our distinguished 

panelist, particularly on how we can improve the prospects for meting out justice, 

not only in Rwanda and the former Yugoslavia, but in all areas of the world where 

the strong victimize the weak. 

PREPARED STATEMENT OF THE HONORABLE RON PAUL, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS

Thank you, Mr. Chairman, for holding this hearing on the important topic of the 

International Criminal Tribunals for the former Yugoslavia and Rwanda. For Americans, the most important aspect of these international criminal tribunals is that 

they are the model for the U.N.’s International Criminal Court. Indeed, it is the perceived need to make these ad hoc tribunals permanent that really led to the creation of the ICC in the first place. This permanent U.N. court will attempt to claim 

jurisdiction over the rest of the world within the next few weeks, as it has claimed 

that ratification by 60 countries confers world jurisdiction upon it. 

This means that even though the United States has not ratified the treaty—

though it was signed by President Clinton’s representative at midnight on the last 

day—the Court will claim jurisdiction over every American citizen, from President 

Bush on down. The Bush Administration has admirably stated its opposition to the 

International Criminal Court, but it unfortunately has taken no proactive measures 

to ‘‘unsign’’ Clinton’s initial signature or to make it known that the United States 

has no intention of cooperating with, providing funding to, or recognizing any authority of this international court. The clock is ticking, however, and the day of reckoning is close at hand. 

This court is every American’s worst nightmare. Currently, there are no protections for either U.S. military personnel or civilians from the tentacles of this International Court. This means when it claims jurisdiction, you, I, or any of our 240,000 

military personnel stationed across the globe can be kidnaped, dragged off a foreign 

land and be put on trial by foreign judges, without benefit of the basic protections 

of the American legal system, for crimes that may not even be considered crimes 

in the United States. 

Pro-life groups in America have already expressed concern that the Court’s 

claimed jurisdiction over ‘‘enforced pregnancy’’ could make it criminal for groups to 

work to restrict access to abortions—or even reduce government funding of abortions. The pro-ICC Woman’s Caucus for Gender Justice has already stated that 

countries’ domestic laws may need to be changed to conform to ICC Statutes. 

Former Assistant to the US Solicitor General, Dr. Richard Wilkins, said recently 

that the ICC could eventually be used to try ‘‘the Pope and other religious leaders,’’

because issues such as abortion and homosexuality would ultimately fall within the 

Court’s jurisdiction. 

Supporters of the International Criminal Court are quick to say that the Court 

is modeled on the Nuremberg tribunal set up after World War II, but nothing could 

be further from the truth. Nuremberg was a trial initiated and prosecuted by sovereign nations. It was a reassertion of national sovereignty over the crimes of a regime that disregarded the concept, that saw other sovereign countries as merely 

‘‘living space’’ for their own people. As one analyst recently wrote, ‘‘. . . the Nuremberg tribunal, unlike the Hague tribunal, was not really an international tribunal 

at all. The judges quite specifically stated that the act of promulgating the Nuremberg charter was ‘the exercise of sovereign legislative power of the countries to 

which the German Reich unconditionally surrendered.’ There was no pretense that 

the ‘international community’ was prosecuting the Germans.’’

The International Criminal Court is to be modeled after the tribunals dealing 

with Rwanda and Yugoslavia, that is a fact. Knowing how these tribunals operate 

should therefore terrify any American who loves our Constitution and our system 

of justice. In the Yugoslav and Rwandan tribunals, anonymous witnesses and secret 

testimony are permitted; the defendant cannot identify his accusers. There is no 

independent appeals procedure. As one observer of the Hague in action noted, ‘‘the 

prosecutor’s use of conspiracy as a charge recalls the great Soviet show trials of 

1936–1938. In one case, the Orwellian proportions of the Prosecution mind set was 

revealed as the accused was charged with conspiring, despite the admitted lack of 

evidence . . . It is not the destruction of evidence but its very absence which can 

be used to convict!’’

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Indeed in the showcase trial of the ICTY, that of former Serb leader Slobodan 

Milosevic, chief prosecutor Carla del Ponte told the French paper Le Monde last 

year that no genocide charge had been brought against Milosevic for Kosovo ‘‘because there is no evidence for it.’’ What did the Court do in the face of this lack 

of evidence? They simply disregarded a basic principle of extradition law and announced that they would try Milosevic for crimes other than those for which he had 

been extradited. Thus they added two additional sets of charges—for Bosnia and 

Croatia—to the indictment for Kosovo. The Kosovo extradition itself was nothing 

more than bribery and kidnaping. Milosevic was snatched up off the streets of Serbia after the United States promised the government it had helped install millions 

of dollars in aid. That national sovereignty was to be completely disregarded by this 

international tribunal was evident in its ignoring a ruling by the Yugoslav Constitutional Court that extradition was illegal and unconstitutional. Yugoslav officials preferred to put Milosevic on trial in Yugoslavia, under the Yugoslav system of jurisprudence, for whatever crimes he may have committed in Yugoslavia. The internationalists completely ignored this legitimate right of a sovereign state. 

Supporters of the International Criminal Court, like the World Federalist Association, claim that ICC procedures are in full accordance with the Bill of Rights. They 

aren’t. One pro-ICC website sponsored by the World Federalist Association, attempting to dispel ‘‘myths’’ about the Court, perhaps unintentionally provided some real 

insight. In response to the ‘‘myth’’ that the ICC is unconstitutional, the website argues that ‘‘The Rome Treaty establishing the International Criminal Court provides 

almost all the same due process protections as the U.S. Constitution. Every due 

process protection provided for in the Constitution is guaranteed by the Rome Treaty, with the exception of a trial by jury.’’ Since when is ‘‘almost all’’ equal to ‘‘all?’’

Either the Rome Treaty provides all the protections or it does not provide all the 

protections, and here we have by its own admission that the ICC is indeed at odds 

with American due process protections. So what else are they not telling the truth 

about? Another claim on the World Federalist Association website is that the ICC 

is that the rights of the accused to a presumption of innocence is guaranteed. Interestingly, on the very same website the accused Slobodan Milosevic is referred to as 

a ‘‘criminal.’’ Not very reassuring. 

It is very convenient for supporters of this International Criminal Court that the 

high profile test case in the Yugoslav tribunal is the widely reviled Slobodan 

Milosevic. They couldn’t have hoped for a better case. Any attack on the tribunal 

is immediately brushed off as a defense of Milosevic. It is illustrative for us to take 

a look at how the Milosevic trial is being prosecuted thus far. After all, today it is 

Milosevic but tomorrow it could be any of us. And with the Milosevic trial, the signs 

are very troubling. We have all seen the arrogance of the judge in the case, who 

several times has turned off Milosevic’s microphone in mid-sentence. Thus far, the 

prosecution has attempted to bring as witnesses people who are on the payroll of 

the tribunal itself, as in the case of Besnik Sokoli. Other witnesses have turned out 

to have been members of the Kosovo Liberation Army, which is the armed force that 

initiated the insurgent movement within Yugoslavia. Remember, Milosevic was extradited for Kosovo and for Kosovo only, but the weakness of the case forced the 

Court to add other charges in other countries. Now, after Milosevic has shown himself adept at cross-examination, the prosecution is seeking to have the judge limit 

Milosevic’s ability to cross-examine the prosecution’s witnesses. This in itself flies 

in the face of our system of evidence law, which allows the defendant nearly unlimited ability to cross-examine a witness as long as it is relevant to testimony. 

Mr. Chairman, these international tribunals and the International Criminal Court 

that they spawned are bad for America and bad for the rest of the world. The concept of a permanent criminal court, run by un-elected bureaucrats, third rate judges, 

and political hacks, and answerable to no one, undermines everything that free peoples should hold dear. It is about American sovereignty, the sovereignty of our 

American legal system, but that is not all. It should also be important for Americans 

that the sovereignty of the rest of the world be maintained as well, as when sovereignty is undermined anywhere by an un-elected international body, it is under 

threat everywhere.

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