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contribution 02 - SOREL Jean-Marc

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ICTR beginnings - ICTR assessment - Historical legacy - Politics & Justice

Jean-Marc SOREL

transtlated version

Thank you, Mr. Chairman, dear Vincent, and thank you, too, for organizing this very beautiful symposium. I will try to go slowly for the reporters who yesterday accused me of going too fast. They were right, and I would like to commend their work.

So the one talking to you now is a theoretician, to use the expression Madam Del Ponte used this morning to describe academics.

Mr. Getti, who chaired the first session, is not present here. I, myself, I will have to leave by 3 p.m., so I crave your indulgence. He left some notes, but we don’t have too much time. Now, I will not use Mr. Getti’s notes but only his conclusion.

He agreed with François Roux, because he believes that the Tribunal should display humility. He struck a middle ground between the near failure raised by Mr. Roux and Mr. Webster’s near assessment. So he thinks that we should strike some balance between these two standpoints and ultimately improve the model of the civil law/common law.

So, naturally, I come to the summary of what caught my interest during my presidency. Very briefly, the points that came out when we discussed trials and presentation of evidence yesterday, I felt that two trials existed, the Prosecution’s trial and the Defence’s trial. Each side had their evidence and I have the impression that they may not have the same evidence. One may even have the impression that there is some parallel existence between the two and they don’t meet anywhere. By the same token, they say there may be ways of getting two extremes. Maybe from the Prosecution, which has piles of evidence, and another extreme on the side of the Defence. But I am saying this cautiously because I know that those who are here today did not create such extremes, but other colleagues may have done so. So people adopt a strategy and carry it to the very end to try to prove the innocence and to counterbalance the Prosecutor’s work.

So I wonder whether the Judges should not be involved even more between the Prosecution and the Defence. I do not want to brings us to the civil or common law model issue, but I am wondering whether the Judges should not be more active in these Tribunals. It’s a question. I don’t have an answer to it.

Another issue that came up yesterday that I may term a form of confusion in reference to witnesses. I was very surprised to realize that, with regard to witnesses, there were very different categories of persons who are all termed witnesses. There is the expert witness, the victim witness, the accused who is a witness, and then simply a witness, who all testify. So I believe it is a prosecutorial model, a problem related to prosecutorial models, but there is some confusion in all this. At some point the victim is accused, even the expert. You do not know anymore who is who.

Now, I may use a word that may sound too pedantic but which is useful. There is a problem of legal anthropology regarding testimony. It sounds a bit pedantic, but I believe that we cannot address the issue of testimony the same way all over the world. It depends on the culture and the procedure we use. I believe that we are using an unsuitable model.

I look at the notes summarizing the issues from our discussion of yesterday that the Defence, I am not referring to members of the Defence here, but the Defence, in general, has some work to do. Ideally, we may set up an International Bar, but we know it does not exist. But all of this leads us to extremes. So we need a very clear ethical procedure from the Defence as a whole, a code of ethics that is a parallel code to the Prosecutor’s ethics. Because on one side, the Defence seeks to clear their client by all means, and on the side of the Prosecution, they believe that the accused is immediately guilty.

Now, the indictment actually exists, so there are indicia, but the Prosecution may consider that the accused is already guilty. Madam Del Ponte was saying this morning that pre trial detention may be the beginning of actual imprisonment. I wouldn’t tell so to my students, but I may understand what she was saying, but it is a bit shocking. So if we strike a balance on that note, we may avoid, as we have seen in Rwanda the temptation to negate what happened and maybe to avoid some kind of convicting machine. So we need to find a middle ground here, and that middle ground is the work of the Tribunal. This morning Prosecutor Jallow mentioned it. The idea was to try everyone, trying the genocide and the other crimes that also have to be tried and which are also deadly crimes.

Now, verbally speaking on the Tribunal, a few general ideas. Every Tribunal, especially at the international context, is the outcome of a failure. So in itself it’s a dispute. I will use the expression of a famous French lawyer, Mr Carbonier, who states that every trial is a pathology of law. If a trial is taking place, it means that something failed or something did not work somewhere.

Now, we have exceptional Tribunals because something horrible, monstrous happened and they had to be tried. So the Tribunals are supposed to be partial solutions to those problems. President Byron was saying on the first day that we are just an element. I do agree, the Tribunal is just an element. It is not there to entirely address the whole genocide problem. It may be so even less adapted as it did not even predict acquittals.But we find ourselves in an exceptional situation. A Tribunal in a state is something that may be set up for something that may happen, by definition.

Maybe there may be problems with the Tribunal. We are trying an obvious thing. Something that is obvious. And it is very difficult to take some distance in relation to that thing that is obvious or evident. So we should not expect too much of such a justice system because, as we said from the beginning, the ICTR is not an African court, but it is a court in Africa. So it creates a special context and special constraints.

That Tribunal, just as the ICTY, it is the outcome of the failure of the international community from the outset. So it is an element of the good conscience of the international community. I think we should not fool ourselves on this score. And since this is an element of good conscience, it equates some form of impunity for the victors. There is a problem here, those victors who continue to claim their status as victims will never appear as executioners.

Now, history shows us and honestly I think that the distance between the victim and the executioner is very slim. Let’s not forget the former Yugoslavia, Madam Del Ponte knows this very well. The theory of Serbia is “we defended ourselves because we are victims.” So eventually you become an executioner because you felt like a victim before. So this is a vicious circle that has to be taken into consideration. I believe the Tribunal is important, but it is not adequate. It is not enough to solve the problem.

It is Damien Vandermeersch who in his paper cited a sentence from Hannah Arendt who said that the victim goes beyond the context of justice. I believe this is true, and it is also true for our Tribunal.

So in this context bad conscience from the international community, a form of impunity has arisen. Not impunity for those who committed crimes, but a form of a legal impunity for the tribunals which accounts for all the exceptions that we have accepted and which have come up in the past few days. Let me cite some examples: Testimonies, closed sessions, indictments that are kept confidential and, of course, the shocking issue of pre trial detention.

All of these have been justified, and they may be justifiable, but the issue is that the Defence does not understand it that way. We have a Tribunal that we call exceptional for exceptional crimes, but we give the Defence the same weapons that we give the Defence in a traditional or regular court. So there is a divide here. There is a divide that we cannot reconcile because we are judging mass crimes and we may allow ourselves some things that we may not allow in a regular court.

I am not trying to justify or even explain it. I am just trying to understand. We are told that even when we are acquitted, we are still guilty. I just want to tell Madam Del Ponte that in my system in France, someone who has served their term or someone who is acquitted is not sent off without some form of assistance. In the system that I know, the French system, there is legal support. Now, someone who commits a robbery in France and who serves his time will probably run less of a risk than someone who serves his term from the ICTR or the ICTY. So from that standpoint, I think it is rather difficult to leave these persons without some form of assistance.

Another point and I will be very brief the political stakes. Politics and law are the opposition. No, I think that is a rather facile alibi. Of course, justice and politics are mixed in international law and even in domestic jurisdictions.

Now, once again, if I cite the example of France, we had a major debate on the examining magistrate on the Prosecution department and all that. All of that is political in character. Of course, the ICTR is even more so, because it is in the limelight of the international scene.

A political stake because in international law there is an expression that is used which is called the CNN factor. It means that at some point some events come into the public eye and something has to be done. The Rwandan tragedy was a very conspicuous event in the public eye. So something had to be done, as it was done for the ICTY.

Still in that connection, we heard some latent criticisms on the issue of comparing the ICTY and ICTR. Of course, the situations are different. The strategies adopted are different. However, here I am going to be a bit hard. I am an academic. Now, did we not have the same phenomenon on both sides, that is, the frog that wanted to swell up more than his size? There were major objectives that ended up being squeezed, especially in terms of time and that have been left with a postponement strategy. So at least let us acknowledge that both Tribunals have similar problems, including the characterization of crimes.

Now, I may add, in relation to genocide, that, although the ICTY revolved around genocide, the International Criminal Court mentioned that there was a genocide in Srebrenica, it did not mention the role of Serbia. But at least it did recognize the genocide.

On that basis, there is another confusion to avoid, namely, impartiality and neutrality. A court must be impartial. That is clear. There are guarantees enshrined in the statutes, a statute to ensure that staff are impartial. Neutral, I am not sure. We all have our opinions. I had a lecturer at law who said, "A tribunal is the objective result of a group of people with subjective ideas.”

The objectivity comes to the fore in our opinions. Let’s make no illusions. All courts have and must have a jurisdictional policy. I agree with Ms. Del Ponte on that count, but the issue is not independence of the Prosecution, but it is the entire independence of the Court.

Now, regarding the model or counter model of the Tribunal, talking about the model, we are looking at sustainability, looking into the future of the Tribunal serving as a model. So what will happen in the aftermath of the ICTY and ICTR, without mentioning the others like the Special Court for Sierra Leone? What will stay is the ICC. Has the ICTR served the purpose an international court? Yes, I would say as a draft. It is also true for the ICTY, we should try not to repeat certain errors committed by these tribunals, especially with regard to the procedure.

For example, the fact that the Prosecutor is probably less lonely and the fact that victims have a place in the ICC. I am not admitting that the ICC is working well, but at least, in the Statute, there is maybe a model.

Now, talking about the counter model, what is the criterion? What did we have before Arusha and before ex Yugoslavia? We had Nuremberg. But I don’t think they can be compared because the settings were different.

We should note that there could have been a model, especially the 1948 Convention Against Genocide, that predicts an ICC that has never been created and which would have made our task easier.

I do not believe it is a quite a model or quite a counter model. My opinion will be quite humble. I will state that it is a Court which is building itself and which is gradually becoming a model by treading. Maybe the model will come later, but I believe and this is something I felt in the various discussions that a model must be unique, must be original. We must not relate it with something that exists already in a state. We have to come up with a court model that adapts to the international level. Unfortunately, the separation of powers does not serve us well in international justice, and justice falls squarely in line with the history of the States.

In international law, justice is an arm which has been gradually welcomed by States. You have something different here.

My last thought, and this is my very last word, we must be careful not only in regards of the ICTR, but, generally, we should avoid the obsession to absolutely seek responsibility. It doesn’t mean we must not do our job. We should avoid the mechanical work because hunting the culprits generally tends to substitute the manifestation of the truth, the search for the truth. That might be a problem. To sum up, justice often prevails truth. So we will have justice, but does it really correspond to what happened? I am not entirely sure and nevertheless I believe that the Tribunal ought to exist. And every other thing said and done, it is a pretty positive experience. Thank you.

Vincent CHETAIL

Thank you for this perspective which is pretty enriching and which actually has been quite stirring.

I am going to hand the floor to Antoine Garapon to summarize yesterday’s session before giving the floor to the other academics so they can air their views in respect of our work over the last two and a half days.