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Program 9731
August 5, 1997


Gabrielle Kirk McDonald, Justice, International Criminal Tribunal for the former Yugoslavia

Christian Chartier, Chief Spokesperson, International Criminal Tribunal for the former Yugoslavia

This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.

GABRIELLE KIRK MC DONALD, Justice, International Criminal Tribunal for the former Yugoslavia:
That’s one of our major problems of course, is that the Tribunal does not have the power to
arrest individuals. We rely upon the states to execute our arrest warrants. We have issued,
the prosecutor has issued 75 indictments and we have only 8 persons in custody because states
have not cooperated.

KEITH PORTER, Producer: This week on Common Ground, an inside look at the War
Crimes Tribunal for the former Yugoslavia.

MC DONALD: The commission of experts that was chaired by Cherif Bassiouni has published
a report, again saying that sexual assault, and rape specifically, was used as a weapon of war
and as a method of ethnic cleansing. And that it was widespread.

PORTER: Common Ground is a program on world affairs and the people who shape
events. It’s produced by the Stanley Foundation. I’m Keith Porter.

MICHAEL GREEVES: …get something out of someone. There was no need to hurry along
into interviews with Mr. Mucic. An indictment was in the stage of preparation and it was
signed on the 19th and confirmed on the 21st… (voice continuing in the background).

PORTER: This is the sound inside the International War Crimes Tribunal for the former
Yugoslavia, meeting in The Hague, Netherlands. On this particular day, the dispute was over
which country’s law, if any, applies to the way interviews with suspects are carried out.

GREEVES: Why should there be this almost indecent haste to interview this man? Was it
because they knew that if he got a lawyer in that would, that might get this man to clam up
and they wouldn’t get anything out of him. And that’s why they were so keen to persuade him
not to have a lawyer. I ask Your Honors look at that point… (voice continuing in the

PORTER: Defense attorney Michael Greeves represents Zradko Mucic, who is accused of
committing war crimes at the Celebici Camp in the former Yugoslavia.

GREEVES: …surroundings, and at greater leisure here in The Hague.

THERESA MC HENRY: So the fact that Austrian law is not controlling… (voice
continuing in the background)

PORTER: Responding for the prosecution is Theresa McHenry, an American.

MC HENRY: …to provide Your Honor specifics about what Austrian law is and is not,
because we believe it’s not relevant. What’s relevant is, was the interview taken fairly?

PORTER: Where does the authority from the Tribunal? Where does it derive from?

MC DONALD: The Tribunal was established by the Security Council pursuant to Chapter 7
of the United Nations Charter.

PORTER: This is one of the presiding judges at the Tribunal, Gabrielle Kirk McDonald,
also an American.

MC DONALD: Under that chapter and under the appropriate articles under Chapter 7, the
Security Council is given primary authority to devise measures to resolve threats to
international peace and security. The Security Council had found by a number of resolutions
preceding the establishment of the Tribunal that the activities in the former Yugoslavia
constituted a threat to international peace and security. It then, pursuant to Chapter 7,
determined that the appropriate measure to bring about peace and maintain peace in the former
Yugoslavia was to establish a tribunal to try individuals for violations of international
humanitarian law.

PORTER: Is there any limit on the existence of the Tribunal?

MC DONALD: We were established to bring about and maintain peace. That is our mandate.
So I would suppose that if the Security Council determined that peace had been achieved in
the former Yugoslavia they could make a determination that the measure, that is the Tribunal,
was no longer necessary.

PORTER: Okay. So often I think people call to mind the Nuremburg Trials. What are
the major differences between what you’re doing here and what happened in Nuremburg after
World War II?

MC DONALD: Well, yes, first of all we are the International Criminal Tribunal for the
former Yugoslavia, established in May of 1993 as the first truly international criminal
tribunal. The Nuremburg Trials were held pursuant to a multi-national agreement among the
victorious powers after World War II. Under the charter of the International Military Tribunal
the maximum penalty was death. And of course under our statute we may only impose a life
sentence. That’s the maximum. The other difference is that we have subject matter
jurisdiction under the Geneva Conventions and under the Genocide Convention and laws and
customs of war, whereas the Nuremburg charter was more limited in terms of its subject matter
jurisdiction. We do not have subject matter jurisdiction to try persons for a war of
aggression. So that is, I suppose, some of the major differences. As a matter of
practicalities the trials themselves are different because in the Nuremburg Trials I have
heard that there was a paper trail, that is there was a lot of written evidence also. The
tribunal had in custody the defendants, the Nazis, and we of course do not have in custody,
which is, persons who are indicted, many persons who are indicted. So those are some of the
major differences. And that’s one of our major problems of course, is that the Tribunal does
not have the power to arrest individuals. We rely upon the states to execute our arrest
warrants. We have issued, the prosecutor has issued 75 indictments and we have only 8 persons
in custody because states have not cooperated.

PORTER: In fact I just heard the other day Ambassador Holbrooke who negotiated the
Dayton accords, say “If these people are not arrested and brought to The Hague then we will
have a partition agreement instead of a unified country agreement,” and he expressed his
frustration that, I mean, there’s evidence that these people are even passing through checkpoints
at some times. The, passing within a few feet of IFOR soldiers and yet they aren’t being


PORTER: I mean, I’m sure you must share that frustration…

MC DONALD: Oh yes, I share that frustration. As a judge of course I’m not involved
in the process. We issue the arrest warrant and we expect states to cooperate because they
have a duty to cooperate under the United Nations Charter and under the statute. Article 29
of the statute that was adopted by the Security Council requires that all member states
cooperate and among other things, execute arrest warrants and orders of the Tribunal. So
it’s frustrating, it seems, for me, because judges participate in the process in that they
confirm indictments. So when you spend a significant amount of time looking at material
reviewing the case file of the prosecutor and determining that a prima facie case
exists and then execute an arrest warrant and then it is not complied with, there is a certain
amount of frustration.

PORTER: How were you and the other judges chosen?

MC DONALD: Each country could submit the names of two persons, one of whom has to be
a national of the state. The names were submitted to the United Nations, the Security Council
reviewed the names and reduced the number to—I don’t really know the exact number—but the
first time somewhere between 23 and 35, I think it was required. Anyway the Security Council
reviewed the names and then submitted the names to the General Assembly and the General
Assembly then voted to elect 11 judges and that was in 1993. There was another election in
May of this year and I was re-elected along with several of my colleagues.

PORTER: And what were you doing before you were chosen to do this?

MC DONALD: Oh, I’ve been, I’ve had a long career, so I’ve done a number of things. I
was a federal judge in the United States. I’ve been a professor of law. I’ve been a
practitioner. I began my legal career with the NAACP Legal Defense and Educational Fund as a
civil rights lawyer working in New York City and traveling to various southern states. So
I’ve had various careers. This in my mind is kind of a confluence really, of all of the
careers that I’ve had because I have an opportunity to recall experience I had as a civil
rights lawyer. Of course my background as a federal judge has been of significant assistance
to me in presiding over the Tadic trial because although these are trials involving serious
violations of international humanitarian law, murder for example, whether it’s murder charged
under laws and customs of war or under a state statute, still is murder. And so that
experience of having presided over criminal trials has been very helpful to me. So I’ve had
a number of careers. This is probably the most exciting time though, I think of my life.

PORTER: When you walk into the courtroom, when I saw the courtroom for the first time
in person I was struck by how different it looks…


PORTER: And of course you know we’ve seen so many trials on television in the United
States in the last several months. What would you say would be the biggest difference for
the American, for an American who is familiar with the setup of a courtroom if they came here?
What would strike them as perhaps the most obvious differences?

MC DONALD: Well, probably the first thing is that they would be separated by the
bulletproof glass that we have that is between the 115 seats for spectators and the courtroom
itself. That probably would affect them and make them feel a little bit different than they
may feel if they’re watching the typical trial in the United States. The other thing of
course is that we have simultaneous translation into English and French and so each, at each
seat is equipment so that you may listen if the witness is speaking in Serbo-Croat for example.
It’s then translated into English and French and you may select the appropriate channel.

VOICE: We consider at this particular time the actual relevant issue, which is the
office of the prosecutor… (voice of French translator in the background) and we would point
out that the office of the prosecutor interview was entirely separate from…

MC DONALD: (with voices of attorney and French translation continuing in the background)
Of course they would see the lawyers and the judges dressed in robes, where in Europe I think
they call them gowns. I don’t join in that practice so the judges wear red and black robes.
Very different than the United States. And a jabbeaux??, which is that white kind of a tie
that we wear. That’s one difference. The lawyers though wear robes. And of course we had a
British barrister in the Tattich case and they wear wigs. And so that’s a difference. We
have cross-examination but this is a criminal trial to a bench, a bench of three judges.
Whereas in the United States it would be a bench of one judge if it were a criminal trial and
most often criminal trials are tried before juries. So having three judges sitting there
trying the case is something that’s different. The absence of a jury is something that’s very
different as well. The courtroom is smaller, much smaller than the federal courtrooms in the
United States. And probably most courtrooms even in state courts. It’s a long courtroom.
It’s rectangular but it’s very long and not very deep. It’s a small courtroom, particularly
if you observed the proceeding today where there are four accused…

PORTER: Right. It gets very crowded.


PORTER: Especially on the defense side.

KIRK MCDONALD: And then people would see that we have an usher who retrieves documents
from the attorneys or the witness and then passes the documents along. That procedure is
different. So really there are a lot of different procedures.

CHRISTIAN CHARTIER, Chief Spokesperson, International Criminal Tribunal for the former
Actually setup of the courtroom, the place, the actual place of each party,
the witnesses’ stand, the position of a judge—the registry??—the dock, the accused, all that
has been and designed by the judges themselves.

PORTER: Christian Chartier is Chief Spokesperson for the Tribunal.

CHARTIER: It’s completely original.

PORTER: Everyone in the courtroom it seems has a monitor. Either a computer screen or
a video monitor in front of them.

CHARTIER: I think there are two, there are three major items which are making the
courtroom even more particular than the setup. Firstly the fact that both parties, prosecution
and defense, are completely on an equal footing. They are on each side of a judge’s bench.
In the middle of them is the witness. That means that the judges there are the kind of
umpires. You have both parties talking, the witness look at the judges, is not beside the
judges as you used to see. I think that says something as to the role the judges want to
play. Second item in it is the presence on each of the tables of a computer screen which is
servicing many purposes. One of them is displaying visual exhibits. So it’s making the
watching of video tapes or audio tapes much easier than just lowering down the curtains and
darkening the room. So, and the second purpose is that, and you cannot see that from the
gallery, but while the proceedings are ongoing the transcripts is appearing on the screen.
And you can work on it. You can select a part on which you want to ask a question. You can
make notes. You can delete part of it. You can have it printed in a rear room. So it’s in
order to ease the proceedings and to make them move smoothly. And the third item you did not
mention so far is the presence of five TV cameras.

PORTER: Yes. Five cameras.

CHARTIER: Which, well, if they go rather unnoticed that’s fine, that means that I think
we have found the appropriate compromise between the freedom of press, the need for the media
to report, the wish of a Tribunal to have media reporting on the proceedings on one side. And
on the other side the need for having dignified proceedings. So the cameras are very discreet.
You cannot see them.

PORTER: They are very small cameras.

CHARTIER: Yeah, they are small, they are remote-controlled.

PORTER: The cameras themselves are in place and controlled by the court. They are not
controlled by any media organization?

CHARTIER: No. They are, this is exclusive to the courts and this is ICTY television
as we used to say. And the audio-visual director, which is manipulating the five cameras, is
working under instructions given to him by the judges themselves.

PORTER: I see.

CHARTIER: For example, he cannot, he is bound to focus on the one taking the stand.
He cannot focus on the papers on the tables. He cannot focus when people are just talking to
each other’s ears. ‘Cause you have people able to read, to make lip readings. He is not
supposed to show the reactions from someone to someone else’s statements. That kind of rules.
Really just, I think this is really a good compromise between what the world should hear,
should see, and how to have it done without the proceedings being disturbed. And you know
from experience what the presence of only one camera in one courtroom is a factor of

PORTER: Printed transcripts and audiocassettes of this program are available. Listen
at the end of the broadcast for details. Common Ground is a service of the Stanley
Foundation, a non-profit, non-partisan organization that conducts a wide range of programs
meant to provoke thought and encourage dialogue on world affairs.

PORTER: You cannot try anyone who does not physically come to the building here in The
Hague, is that correct?

MC DONALD: No, we do not have trials in absentia.

PORTER: Again, this is Justice Gabrielle Kirk McDonald, a presiding judge at the
International Criminal Tribunal for the former Yugoslavia, meeting in The Hague, Netherlands.

MC DONALD: That was a big difference also with Nuremburg. Which Nuremburg did of
course. No, we do not.

PORTER: If a country has someone in that, in their country who’s been indicted, does
that country have the option of holding that indicted war criminal and prosecuting them in the
country rather than sending them to The Hague?

MC DONALD: Well, yes and no. They may attempt to begin a trial of such an individual,
but the International Criminal Tribunal has what is referred to as primacy over national
courts. And what that means is that we may request a court to defer to the competence of the
International Criminal Tribunal. And they are to abide by that request for deferral and then
stop their proceedings and refer the matter to the Tribunal. So yes they may, and for example,
Mr. Tadic was in custody in Germany and Germany had indicted him for some, for criminal
offenses. And we then entered an order requesting that Germany defer to the Tribunal, which
it did, and we began the proceedings.

PORTER: Do you have any comments on the issue of rape and the difficulty in

MC DONALD: Again, I’m not the prosecutor, but rape for the first time has been listed
specifically as a crime against humanity in our statute. And that is a first. And a very
significant contribution I believe to international humanitarian law. I think most
commentators, most persons who have followed wars for years on end would agree that rapes
have occurred throughout times, during times of war. But it is only our tribunal that lists
rape as a specific offense, criminal offense, under crimes against humanity. It’s clear that
at least some writers believe that sexual assault in the former Yugoslavia was used as a
weapon of war. So that it was more than just what some people may view as something that kind
of happens during wars, you know. Kind of a, kind of a something that is on the side. You
know, with soldiers being away from their families, etc. You know, those things will happen.
And I’m saying it in a very sarcastic way. But when rape or sexual assault, which is a
broader phrase, is used as a weapon of war, as a way of ethnic cleansing, then it’s important
that that issue be addressed.

And it’s particularly important because, as I said, this is the first time that rape has been
listed as an offense under crime against humanity. And it’s almost like having a new unlawful
weapon that the world community has recognized. And for example, if you have the development
of a new bomb, for example, and that, the use of that bomb is outlawed, then it seems to me
the world community should focus on that because it’s a new weapon so to speak that has not
been challenged. And that’s something that you need to stop right away. And rape in a sense,
since it is listed as a crime against humanity for the first time in our statute, kind of
fits into that category. This is the opportunity, the first opportunity, for an international
criminal tribunal, to focus on rape. And I think that it should.

I’m not the prosecutor, I don’t know what position she has or what priority she has. I
believe there’s one indictment, perhaps two indictments that are exclusively focused on rape.
But certainly it has not played a significant role or it has not been charged as much as at
least some persons who have criticized the Tribunal, feel. The commission of experts that was
chaired by Cherif Bassiouni has published a report, again saying that sexual assault, and rape
specifically, was used as a weapon of war and as a method of ethnic cleansing. And that it
was widespread. Whether that, the evidence that he has is correct or not or whether it’s in
such a form as would enable the prosecutor to draft indictments I don’t know. That’s up to
her to make that decision. But I don’t think that it has appeared in the indictments as often
as many critics of the Tribunal feel it should have.

And in terms of people not being willing to testify, that kind of thing, I think certain
assumptions are made about that. You, many of the, many of the brutality, much of the
brutality that has been brought upon men has, has, has—what is the word?—almost stripped
them of their manhood. And it would seem to me that a man being placed in a prison, a
concentration camp, a detention camp, a collection center—whatever you want to call it—and
being subjected to the humiliation, the brutal treatment that has been offered at least in
testimony, has been emasculated. And yet these people are willing to come forward and
testify that they were powerless. And in a sense they lost their manhood. So I think this
business about women being unwilling to come forward, although I’m sure it’s true, and
obviously it’s true, but it’s not always the case. There’s testimony ongoing now in the
trial that’s pending in the Tribunal, by women who were the victims of rape. So I think that
shouldn’t be an assumption that you should accept and therefore not go forward and
investigate charges of rape. So don’t start with the assumption that it’s going to be
difficult and you won’t be able to get persons to testify. Because if you start with that
assumption then you won’t even proceed with that as an option and that would be a mistake.

PORTER: You’ve mentioned before this is an exciting time for you. It must be exciting
to be involved in something where it’s relatively unbroken territory?


PORTER: You’re creating something new that will live on. Hopefully for quite a long
time. Any thoughts on that?

MC DONALD: Well that, that’s what makes it exciting. It’s law, you can use law in a
very creative way and that’s what I liked to do when I was with the NAACP Legal Defense Fund.
The Civil Rights Act of 1964 had just been passed and became effective in 1965 and it was a
new law that had not been test. And that’s how I learned to be a lawyer. I learned to be a
lawyer by being creative and developing remedies so to speak in an area that had not been
tested. So it kind of gives me an opportunity in a way—I’ve never thought about it this
way—but to relive my youth maybe. So that’s what’s exciting. It’s exciting though because
I like to learn. I’ve been a professor and the international humanitarian law is an
unpracticed field because although it’s been around—you know, Geneva Conventions of 1949,
for example—there haven’t been many practitioners in this field because there has not been
an international criminal court. Of course there have been some trials by some states but
except for that there haven’t been, you haven’t, the law has not been used. And so whereas
professors write about it I’m kind of an activist even though I’ve been a professor. And I
like to use the law. So being a professor I like to learn but being an activist I like to
apply it. Being a former civil rights attorney I like to be creative. So I’m really very
fortunate to have had so many careers and be relatively young.

PORTER: That is justice Gabrielle Kirk McDonald, a presiding judge at the
International Criminal Tribunal for the former Yugoslavia… For Common Ground,
I’m Keith Porter.

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