Proffesor Boyle, a legal representative of the Association of Citizens Mothers
of Srebrenica and Drina valley, writes a letter to Carla Del Ponte The Chief Prosecutor
of the ICTY, International Crimes Tribunal for former Yugoslavia in the Hague,
urging her to fulfil her promise to most seriously study the Criminal Complaint
against top UN officials, Dutch military officials, and officials of and officials
of some western governments and act in accordance to the international law and
the Statute of the ICTY.
Dear Madame Del Ponte:
On behalf of the Mothers of Srebrenica and Podrinja Association, I wish to
express our gratitude to you for the meeting we had with you and your Staff
on Friday, February 4, concerning our Criminal Complaint against the above-named
United Nations Officials and others for the role they played in the genocidal
Srebrenica massacre. We felt it was a constructive 1-hour meeting. Prior thereto,
for the convenience of everyone, I had instructed a member of our Delegation
to prepare a formal Memorandum of Conversation, a copy of which is attached
to this letter for your convenience. We believe this MEMCON contains a fair
and accurate representation of the commitments that you personally made to the
three Presidents of the Mothers of Srebrenica and Podrinja Association. They
are as follows:
1. That you will study our Complaint and additional submissions that are itemized
in the MEMCON "very carefully."
2. That you will visit Vogosca in order to meet with all the Mothers of Srebrenica
and Podrinja. As I had explained to you, originally I informed your Special
Assistant that the Mothers of Srebrenica and
Podrinja intended to charter an entire bus to bring as many of them as possible
to The Hague in order to meet with you in support of our endeavor. He informed
me that the ICTY did not have the facilities to hold such a meeting. Therefore,
I told him that out of respect for the Prosecutor, I would only bring in from
Vogosca the three Presidents of the Mothers of Srebrenica and Podrinja. As you
know, at our meeting the three Presidents invited you to visit Vogosca in order
to meet personally with all the Mothers of Srebrenica and Podrinja, and you
accepted their offer. By now you should have received their formal invitation
to you that was faxed to your office from Vogosca on February 9. For the sake
of your convenience, I have included another copy of their invitation to you
as the second attachment to this letter. At our meeting, you expressed a desire
to coordinate your visit to Vogosca through me. Toward that end, I look forward
to coordinating your visit to Vogosca with the appropriate member of your Staff.
3. During the course of our meeting, you voluntarily requested an additional
meeting with me so that we could both go through our Complaint "at greater
length" on a lawyer-to-lawyer basis. I readily
agreed to your request for this separate meeting. Since I teach on Mondays and
Tuesdays, I am available for a meeting in your office on Thursday afternoon
through Sunday morning. I am certain that your most professional and courteous
Assistant shall be able to set up this meeting at a mutually convenient time.
With respect to your expressed concern about the precedential significance
of holding United Nations Officials accountable for U.N. peacekeeping operations,
this has already been done. Over a generation
ago, during the course of the ill-starred United Nations Operation in the Congo
(ONUC), United Nations peacekeepers inflicted war crimes upon civilians. The
United
Nations assumed responsibility for the criminal behavior of its peacekeepers
and paid compensation for those who had been injured. See Louis B. Sohn, Cases
on United Nations Law 52-54 (2d rev. ed. 1967).
According to a letter from the U.N. Secretary General to the government of
Belgium dated 20 February 1965:
"The United Nations has agreed that the claims of Belgian nationals who
may have suffered damage as a result of harmful acts committed by ONUC personnel,
not arising from military necessity, should
be dealt with in an equitable manner."
"It has stated that it would not evade responsibility where it was established
that the United Nations agents had in fact caused unjustifiable damage to innocent
parties." Id. at 52.
Defending this agreement from criticism by a U.N. Member State, the U.N. Secretary-General
replied that:
"It has always been the policy of the United Nations, acting through the
Secretary-General, to compensate individuals who have suffered damages for which
the Organization was legally liable. This
policy is in keeping with generally recognized legal principles and with the
Convention on Privileges and Immunities of the United Nations. In addition,
in regard to the United Nations activities in the Congo, it is reinforced by
the principles set forth in the international conventions concerning the protection
of the life and property of civilian population during hostilities as well as
by considerations of equity and humanity which the United Nations cannot ignore."
Id. at 53.
Most recently, to the same effect is the U.N. Secretary-General's Bulletin
on the Observance by United Nations Forces of International Humanitarian Law,
ST/SGB/13 (6 Aug. 1999), 38 I.L.M. 1656 (1999).
To be sure, the U.N. Secretary-General assumed only civil responsibility for
the infliction of international crimes by United Nations peacekeeping forces
in the Congo. But there was no international war
crimes tribunal in existence at that time with jurisdiction to investigate and
prosecute such international crimes committed by U.N. peacekeeping forces. Today
there is.
In this regard, I draw your attention to ICTY Statute article 7:
Article 7
Individual criminal responsibility
1. A person who planned, instigated, ordered, committed or otherwise aided
and abetted in the planning, preparation or execution of a crime referred to
in articles 2 to 5 of the present Statute, shall be
individually responsible for the crime. 2. The official position of any accused
person, whether as Head of State or Government or as a responsible Government
official, shall
not relieve such person of criminal responsibility nor mitigate punishment.
....
It has been a black-letter rule of international criminal law going all the
way back to the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg
Principles that there is no immunity for anyone for the commission of international
crimes.
As you know, it was the U.N. Secretary-General and the U.N. Secretariat who
researched, prepared, drafted. supported, and recommended the ICTY Statute that
was later approved by the Security Council. Those who formulate the law for
application to others must be subjected to the same law themselves. The United
Nations Organization and its Officials are not above the law. To the contrary,
the United Nations Organization and its Officials are the creations of international
law and thus subject to it.
According to my notes on our February 4 meeting, you said the following to
the three Presidents of the Mothers of Srebrenica and Podrinja
Association in the most emphatic terms:
"I am independent..."
"I will do my job..."
"I will examine what you are writing down here..."
"I will proceed."
Consequently, I look forward to arranging your trip to Vogosca and to meeting
with you again in The Hague as you had personally promised the three Presidents
of the Mothers of Srebrenica and Podrinja Association.
Yours very truly,
Francis A. Boyle
Professor of International Law
Citizen of the Republic of Bosnia and Herzegovina
Attorney for the Mothers of Srebrenica and Podrinja Association
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