Statement by the delegation of Ukraine at the UNSC debate on ICTY/ICTR

As prepared. Check against delivery

Mr. President,

We thank Presidents Agius and Meron and Prosecutor Brammertz for their written reports and comprehensive briefings. My delegation would like to congratulate the ICTY team with a successful completion of the crucial and complex task of bringing to justice of perpetrators of genocide, war crimes, crimes against humanity, and other serious violations of international humanitarian law.

Looking back to the tremendous work accomplished, I would like to say it is a job well done. We would like to express our gratitude to the whole Tribunal’s staff, in particular to 87 Judges, one of them — professor V. Vasylenko — is sitting right behind me, 5 Prosecutors and 4 Registrars, who have worked over the life span of the ICTY, who contributed their time, knowledge and experience, who made every effort to ensure the fulfillment of the mandate of the Tribunal and its successful closure this year.

As a first international criminal Tribunal since the Nuremberg and Tokyo Tribunals, the ICTY achieved a significant record of accountability by concluding proceedings against all 161 individuals it indicted for serious violations of international law, as well as contempt proceedings against 25 persons. I will touch upon the remaining contempt case later in my statement.

Some sceptics may criticize the ICTY activity and question the importance of its decisions, the role of the Tribunal in prevention, and in legal history in general.

We are absolutely convinced that learning from challenges faced by the Tribunal, highlighting its legal achievements and their impact for combating impunity, is necessary for this Council to improve its practices to achieve peace through justice.

We all know about countless challenges the ICTY was bound to face.

Firstly, it literally had to start from the scratch with undeveloped international criminal jurisprudence and no pre-existing adequate model to follow. In addition, the ICTY started operating during still ongoing conflicts, where crimes under its jurisdiction continued to be committed.

Secondly, logistical problems such as distance. Gathering evidence for crimes that occurred hundreds or thousands of miles away made it more difficult to meet the level of proof required for a conviction and for an accused to develop a comprehensive defense.

Thirdly, obstacles beyond the Tribunal’s control, which include failure of witnesses to appear, numerous contempt proceedings, health of the accused and many others. At the same time, some incidents in the ICTY need to be properly investigated and learned from, like what happened recently during the public pronouncement of the Appeal Judgement with Slobodan Praljak.

Last but not least, the cooperation of states as basis for functioning of the Tribunal. Unfortunately, there are many examples of a late cooperation or unwillingness of states to cooperate. Among them is the lack of cooperation by Serbia concerning the arrest warrants issued by the Tribunal almost three years ago against persons accused of contempt of the ICTY.

This situation represents Serbia’s return to a practice of non-cooperation with the Tribunal in relation to the arrest and transfer of indictees. The absence of a judgment against indictees constitutes a failure for the international community in its fight against impunity and the promotion of international criminal justice.

Taking into account the transfer of this case to the Mechanism, we urge Serbia to demonstrate the political will and to cooperate fully with the MICT.

These and other challenges, including staff attrition and losses of highly experienced experts when the ICTY’s mandate was approaching the end, seriously affected the time framework of proceedings and activity of the Tribunal in general.

Mr. President,

Now let me focus on the judicial legacy of the ICTY. There are many achievements in this field.

In particular, the Tribunal has played a historic role in the prosecution of wartime sexual violence in the former Yugoslavia and has paved the way for a more robust adjudication of such crimes worldwide.

It has specified crucial elements of the crime of genocide, in particular the notion of specific intent and the definition of targeted groups of this crime.

The Tribunal has identified a general prohibition of torture in international law, which cannot be derogated from a treaty, internal law or otherwise, determined that enslavement and persecution constitute crimes against humanity.

It has made its contributions to the doctrine of criminal responsibility of superiors and command responsibility.

It has elaborated the definition of armed conflict and contributed to the definition and understanding of other international crimes, including by reaffirmation that the destruction of cultural heritage may amount to a crime against humanity.

The Tribunal has made numerous contributions to the issues of procedural law, some of which have to do with protective measures for witnesses.

Moreover, with respect to criminal responsibility the Tribunal clearly indicated that not even Heads of State are beyond the reach of the law and succeeded in arresting and trying suspects regardless of their official status, which resulted in the indictment of Slobodan Milosevic.

We consider holding leaders accountable, along with contributing to development of international criminal law and strengthening the rule of law, as one of the Tribunal’s most important achievements. By holding individuals responsible, the ICTY has brought justice and relief to victims and provided thousands of them the opportunity to be heard.

The prosecution of persons responsible for serious violations of international humanitarian law is a clear signal to all perpetrators in all conflicts that sooner or later they will be held accountable.

It gives hope for my countrymen that war crimes, crimes against humanity and other serious breaches of human rights committed during ongoing armed aggression of the Russian Federation against Ukraine will not go unpunished and the justice will prevail.

Mr. President

The establishment of the ICTY as well as the ICTR was a huge step forward in the fight against impunity, which inspired the world community to establish a permanent institution — the International Criminal Court. Thus, the tribunals’ knowledge and expertise will not be wasted. In this regard, we support the conclusions of the report regarding the necessity of learn from lessons of the ICTY to avoid mistakes and improve efficiency of criminal tribunals, and identifying the best practices and building on their legacy.

We are convinced that the heritage of the Tribunal is to be preserved for future generations, other international criminal courts, including the International Criminal Court, as well as for national courts and tribunals. We welcome the ICTY’s Legacy Dialogues and creation of the ICTY information centers. Knowledge and expertise of international criminal tribunals should be accessible to a wider public, thus contributing to the efforts to maintain international peace and to deliver justice throughout the world.

Mr. President,

In relation to the International Residual Mechanism, we commend its active judicial activities carried out during the period covered by the report regarding assumed responsibility for a number of functions of the ICTR and ICTY. We welcome its close cooperation with the ICTY enabling smooth and efficient transition of the remaining functions and services as well as improvement of the Mechanism operations, procedures and working methods.

We also welcome intensive efforts of the Mechanism Office of the Prosecutor to locate and arrest the remaining eight Rwanda Tribunal fugitives and strengthen its fugitive tracking activities as well as to provide continued support to national judicial authorities prosecuting war crimes cases during conflicts in Rwanda and the former Yugoslavia. We are grateful to all states for cooperation in these activities, including assistance in the field of enforcement of sentences of the tribunals on their territories.

Mr. President,

In conclusion, I would like to reiterate that cooperation of states with international tribunals is crucial for achieving their important objectives. With this in mind, we regret that the timely proposal by the Chairman of the Informal Working Group on International Tribunals to adopt a PRST related to the ICTY closure did not materialize due to the lack of consensus. The failure in this purely technical issue does not bode well for the Council and is, regrettably, an indicator of its many weaknesses.

As we have seen so often in the recent past, the ability of this Council to rise to the challenges of the present day is nowhere near that of the early nineties.

We urge the international community to unite in enhancing the development of international Tribunals. Let’s recall the recent horrible event, the downing of Malaysian Airlines Flight MH 17, murdering 298 innocent civilians. Unfortunately, international community could not provide the justice for victims and relatives by creating a tribunal by the Security Council decision. Such a failure must never be repeated in the future.

The legacy of the Tribunals, though, gives us faith that new and efficient ways and instruments to maintain international peace and security are firmly establishing themselves and will play their important part in saving succeeding generations from the scourge of war.

I thank you.

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Further Statement

It is quite telling that the Russian delegation decided to comment on our statement. This kind of reaction suggests that it believes that the dock in The Hague will remain empty. But we would like to remind that the crimes committed by the Russian Federation in Ukraine have no statute of limitations.

I do not want to once again repeat our well-known position on crimes committed by the aggressor state, which are under consideration in international courts. The only honest and responsible way out of the situation created by Russian aggression is in ending aggression, offering appropriate assurances and guarantees of its non-repetition, and making full reparation, compensation and satisfaction for the damage caused.

I thank you.