THE AD HOC TRIBUNALS ORAL HISTORY PROJECT
An Interview with
Hans Corell
International Center for Ethics, Justice and Public Life
Brandeis University
2015
!
RH
Session One
Interviewee: Hans Corell
Location: Newton, MA
Interviewers: David P. Briand (Q1) and
Leigh Swigart (Q2)
Date: 11 March 2015
Q1: This is an interview with Hans Corell for the Ad Hoc Tribunals Oral History Project
at Brandeis University's International Center for Ethics, Justice and Public Life. The
interview takes place at the Boston Marriot Newton in Newton, Massachusetts on March
11, 2015. The interviewers are Leigh Swigart and David Briand.
Corell: Should I start, maybe by explaining what I have been doing before all this? It is
necessary for me to say a few words about where I come from, from the courts and so
forth, and my experience before I got involved in this.
Q2: That is exactly right. You have such a long professional history, but maybe we
should start at how you made the transition from your work in Sweden to such a high
position at the UN [United Nations].
Corell: Of course, yes.
Q1: Just so you know before we start, after the transcript has been prepared we'll send a
copy to you so if there is any names that you want to fill in, any corrections, you can
make those then.
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Q2: And you'll send him the release also?
Q1: Exactly. I have a copy of it. You can take a look at that afterwards if you'd like.
Corell: Let me start by explaining how my career developed from the beginning. After I
graduated from law school in 1962 I went straight to the courts. This is customary in my
country. You start working as a court clerk, then after six months you are actually
allowed to sit on the bench yourself in petty criminal cases like traffic violations or being
drunk and disorderly in the city and so forth. Still, you are presiding in the court, in those
days with three lay judges. This is how we were in a sense brought up. What never left
me was the seriousness with which the senior judges in the court went about their daily
work. I came to understand the importance of the judiciary and the role the judiciary must
play in a democratic society.
After some ten years in the courts I was asked to join the Ministry of Justice to do
legislative work. That is also common in my country, that young judges are recruited to
the ministry!not in a political position, not at all. On the contrary; they are recruited to
provide technical assistance, specifically in legislative work. Legislative work in a sense
is very political; at the same time there is so much of this work that is not political. Once
you have got the signal from the minister or a commission that has examined an issue,
you have some elements that have to be, shall we say, looked after in the legislation. But
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the rest is very, very technical, and you have to fit the law into the national system,
always keeping an eye on the constitution. There is a lot of work here that is purely
technical and that can be or should be performed by the lawyers who know it.
My first task was actually to draft the law that transferred the whole Swedish land
registry from big paper volumes in some hundred courthouses in the country into
computers. Why? Because I had been a judge/registrar of titles to land for many years in
the countryside where I served in the courts, because this was a task for the courts. This
computer register is still in force and it is so accurate that it has publica fides. This means
that if there is an error and somebody relies on it, there is a damage and the state is
responsible to pay the damages; it has publica fides. That was my first task. Then there
were several other items that I had to deal with from real estate law over company law,
joint stock companies and so forth.
Later I was transferred to the Constitutional Law Division, where I became the Head of
the Division in 1979. I was head of that division for three years, and that was a very
interesting learning experience that had great importance for me when I came to the UN
because when you supervise the application of a constitution it is like supervising a
statute or a charter of an international organization. After three years in that position, the
Minister of Justice asked me to become the Chief Legal Adviser of the Ministry. I was
Chief Legal Adviser of the Justice Ministry from 1981 to 1984. During that period there
were shifts of government, so I had three ministers of justice.
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I was the Chief Legal Adviser, and normally you would then be carried out from the
ministry feet first to the Supreme Court, or maybe President of one of the Courts of
Appeal. But then there was the Minister of Foreign Affairs who called and said, "I want a
steady justice hand on the rudder in the Foreign Office, so would you consider joining the
Foreign Office in Stockholm instead?" So I did, much to the surprise of many of my
lawyer colleagues. They thought this was a strange transfer.
Q2: They thought it wasn't the best professional move?
Corell: No, a step backwards to the left, but I never regretted this once. It was such an
extraordinary new development of my career because all of a sudden I got to know, first
of all, a whole new strata of the Swedish administration, the colleagues in the foreign
service and all the people around the world doing this work. But even more importantly,
my colleagues in other countries!the legal advisers in the foreign ministries.
I was of course then a delegate also to the General Assembly of the United Nations. I
attended the UN General Assembly and when I came I said, "Where are my colleagues?"
"Oh, he was here last week. She won't come until after you have left." So together with
my colleagues in Canada, Mexico, Poland and India, we took an initiative writing to
colleagues all around the world saying, "We should be in New York at the same time.
When the International Law Commission's report is discussed there is a policy
discussion. That is where we should be, all of us." This has now developed into a major
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event in New York, the international law week. We had the twenty-fifth anniversary in
October last year.
Q2: Can I interject a question? Before you went to the Foreign Ministry, what had been
your experience of international law?
Corell: I had had experience with international law; already in 1974 I was asked to be a
member of a Committee of the Council of Europe, where we discussed fundamental legal
concepts. Then I had more and more contacts with the Council of Europe, and I was also
in a committee dealing with various issues. Then there was a Committee of Legal
Advisers in the Council of Europe, where I also went for very important meetings. In
1992-1993 I was the chairman of that committee!the Committee of Legal Advisers on
Public International Law [CAHDI]!so that was very important. Even more important
was that from 1983 I was also the agent of the Government of Sweden before the
European Court of Human Rights [ECHR] in Strasbourg. That gave me a tremendous
experience interacting with colleagues in my country, in particular from the ministry
responsible for the legislation that was being criticized in Strasbourg, and also with the
people in Strasbourg, the Commission as it was then, and the Court.
Q2: Can you give us an idea of a couple of cases that were brought against Sweden while
you were—?
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Corell -- 1 -- 6
Corell: Yes. Definitely I can. We had a very old system of administration. High officials
in the administration were considered almost like judges; they were very independent and
they had to apply the law without sort of side glances and so forth. So a director of an
agency had to apply the law in the same manner as a judge. There were situations in
Sweden where such a person took the final decision and that was appealed in Strasbourg.
So this decision concerns a person's human rights and obligations and so forth, and
therefore there should be a court at the end of the line, according to Article 6 of the
European Convention of Human Rights. And we lost a couple of cases of this nature.
Q2: "We" being the government of Sweden?
Corell: Yes, the government of Sweden. This was considered so serious that I was invited
to cabinet meetings. Around the table an empty chair!"Please sit down and explain the
case." And there I found myself turning in 180 degrees; the Agent of the Government
became the Agent of the Court. "Prime Minister, we lost this case. I have studied it with
my advisors and we have come to the conclusion that the judgment is absolutely accurate;
the reasoning is correct. We have nothing to object against that, so we have to implement
the judgment, and this means that we have to pay the damages. But that is not the most
interesting thing; the most interesting thing is that before an applicant can go to
Strasbourg, he or she has to exhaust all national remedies. This means that!in this case
it was an agency, but it could be the Supreme Court, it could be in the government, it
could be any last instance!if that instance has applied the law in a manner that does not
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stand the test in the European Court of Human Rights, we have to look at the legislation.
Because this last national instance applies the law correctly."
This meant that we had to review the legislation. I had two experiences where we simply
had to institute new rules in our system. For this particular case, relating to Article 6 of
the ECHR, we suggested to Prime Minister [Olof] Palme—this was one week before he
was murdered actually!we were there, I and my team, presenting this legislation to him.
It said, "This means that if anyone in Sweden is in this situation that there is a decision
and there is no court to go to, the Circuit Court of Stockholm will always be competent to
hear the case." This was a quick move to stop further losses before the European Court.
Then I said to the Prime Minister, "Then we have to walk systematically over our whole
legal system to identify these situations and then have proper institutions!the
courts!named in the legislation here." So the government went along with that one.
Then we had also cases where children were taken into custody and there were thoughts
that this was done too summarily, in a sense. But this was for the protection of children.
Q2: So it was a question of parental rights that were being violated?
Corell: Yes. Anyway, this was an extremely important experience for me. I must say that
the European Court of Human Rights became like a constitutional court for the whole of
Europe. It is very important that we subject ourselves to this institution. Anyway, I am
back in the Foreign Office. There I also negotiated agreements with other states, and in
particular, when the Berlin Wall came down, I was very concerned that we could
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Corell -- 1 -- 8
maintain the agreements we had with Moscow in force so that there could be business as
usual!for example that SAS [Scandinavian Airlines] could fly across the Baltic states
and so forth. So that I was engaged in. Then of course I was very much engaged in the
work of the General Assembly!the Sixth Committee.
Q2: Which is the Sixth Committee?
Corell: The legal committee of the General Assembly. Also I will say, when we had these
legal advisers meetings in New York, informal meetings, we focused very much on the
role of the legal adviser. I put in a lot of effort in that. They have an audio visual library
in the UN; there are two lectures by me on the role of the legal adviser and your duty to
be very, very firm. "Minister, you make the decision, but it is my duty to the best of my
ability to explain the law because this is an important element in your decision-making. If
I did not do that, I would not serve you the best I can. This is my duty!" Irrespective of
the political color, as it were, of the minister!to me that was irrelevant. If you have such
a high position in the national ministry, your duty is to serve the government as best as
you can. If the government starts violating international law or the constitution, then you
have to resign and explain why you did that. This was a very interesting learning
experience, the dialogue with colleagues around the world on the role of the legal adviser.
All of a sudden, in August 1992, I was contacted by London, who was then taking an
initiative about what was going on in Yugoslavia. Would I consider becoming a war
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Corell -- 1 -- 9
crimes rapporteur for the CSCE!the Conference on Security and Cooperation in Europe
as it was then?
Q2: Explain what the rapporteur would be in that situation.
Corell: It was like to be a war crimes rapporteur!to explain what was happening, to
report back to the CSCE, to their Committee of Ministers, and to make proposals how to
deal with the situation.
Q1: Were you following what was happening with the breakup of Yugoslavia at the time?
Corell: Of course. Definitely.
Q1: And what was your reaction?
Corell: I was devastated. How can this happen in Europe at this time in history? We had
our very, very bad experiences from the 1930s and 1940s; we should not be falling into
this behavior again. I was very critical of what was happening. But this meant that I was
appointed by the European Union; they named me as rapporteur. Then the states we were
to visit!Bosnia and Herzegovina and Croatia!they should nominate one rapporteur.
They nominated my colleague Helmut Türk in Austria, the legal adviser. We should
appoint the third rapporteur!obviously we had to go for a woman!and we identified
Gro Hillestad Thune of Norway, who was the Norwegian member of the European
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Corell -- 1 -- 10
Commission of Human Rights in Strasbourg. We asked her to join the team. So the three
of us became war crimes rapporteurs. We visited Yugoslavia in September and October
1992. We made a very quick visit.
I must say here that if you had asked young Judge Corell about an international criminal
court, I would have been very doubtful, very hesitant.
Q1: Really?
Corell: Will this work, really? It is so political. Can this work? But I completely changed
my mind when I saw what I saw in the former Yugoslavia, where I saw the bombed
houses and obviously civilians had been attacked. We visited Vukovar, where a Canadian
police officer took me aside to say, "Ambassador Corell, we have reason to believe that
the doctors and the patients from the hospital here were brought away to Ovčara where
they were killed and buried in a mass grave." We visited also Daruvar, and we even
managed to sneak across the border to Bosnia-Herzegovina for a meeting with the
civilians. General [Satish] Nambiar, Head of the UN Mission there, did not want us to
come into Bosnia-Herzegovina. He said, "I cannot guarantee your safety. It is so unstable
here. We cannot take this risk." But at least we came across to visit some people.
Q2: What was your experience before you took on this position with international
humanitarian law? Was this a new experience to be looking at war crimes?
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Corell: I had not been directly confronted in this manner but I knew about it. My
grandfather!my mother's father!I never met; he was killed by a German torpedo in the
North Sea on 13 June 1918. He was the first officer on a merchant ship in a convoy, and a
torpedo took his life. So I was familiar with this since I was little but I had not really dealt
directly with humanitarian law until I was confronted with it up front the way I did in the
former Yugoslavia. Anyway, the three of us also visited Knin and the "provisional
government," as it was called by the Serbs in that area.
Q1: May I ask a question about when you crossed into Bosnia? You said you had a
meeting with civilians there?
Corell: Yes.
Q1: Can you take us through that experience?
Corell: We felt that if there was a possibility, at least we should have been in Bosnia. We
only reported actually on Croatia, as you will see from the documents that I have
provided to you. But we thought that when we were offered this opportunity by the UN
official who was head of the mission in Daruvar, just across the border, and he said, "I
can take you there without risk, really," we thought we ought to follow his advice. That is
why we went in there. In Knin of course we had a meeting with the "governor" of this
provisional government, and that was a very strange experience. Some of them were later
prosecuted.
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Then we went back to Zagreb where we had a meeting with President [Franjo] Tudjman,
who said, "Of course we have to have a court." He understood that, but then of course
they behaved differently. We went back to Vienna and, in great haste and almost in fury,
we drafted the first report where we made three proposals!number one, start collecting
evidence in a professional manner that you don't destroy it for a prosecutor to use as
evidence. We had seen a rather haphazard collection by NGOs [nongovernmental
organizations] and others. The second was, appoint a group of lawyers to draft a statute
for an international criminal court. And the third element!please examine Ovčara and
exhume mass graves in Ovčara if there are. Four years later, the officer would be proven
right; they found the mass graves in Ovčara.
Q2: Are these the ones that they could tell from aerial photography that there had been
some shift in the landscape?
Corell: I do not know the details because then I left; I went to the UN and then I could not
follow this in detail. What happened was that we were criticized then!"Why don't you
visit Bosnia-Herzegovina?" We were rather upset because General Nambiar!we had to
follow his advice. He would not like us to come in there for security reasons.
So we wrote a letter in November to the ministers of the CSCE that said, "We have heard
that you are wondering why!they called it the Corell Commission!is not visiting
Bosnia-Herzegovina. The explanation is that we are advised not to go there for security
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Corell -- 1 -- 13
reasons. On the other hand, we are lawyers and we are not experts in looking at people in
concentration camps and these kind of things. We have already identified a situation
which requires an international court to be established. Nobody but nobody is going to
punish the perpetrators for what we have seen already in Croatia, so we have offered a
solution here that you appoint a group of lawyers to draft a statute. If you are not
prepared to do that, we offer to do this." Of course, on the fifteenth of December of 1992,
they met in Stockholm. What could they do? We had in a sense offered our services.
They could not turn this offer down, so they asked us to provide the draft.
Q2: They being!?
Corell: The Ministers for Foreign Affairs of the CSCE. I started drafting with a
dictaphone and two secretaries in the ministry on the second of January 1993. Helmut
Türk had been appointed Ambassador to Washington [D.C.], so he wanted that we could
finalize this as quickly as possible. So I started dictating. After two and a half weeks we
had the draft, and then we met, the three of us, in Geneva for three, four days when we
finalized the proposal. I went home, and then we printed it. On the ninth of February
1993 we presented this proposal to the members of the CSCE in Stockholm. Upon the
advice of her colleagues, the Swedish Foreign Minister, Margaretha af Ugglas,
immediately sent this proposal to the United Nations.
Of course, we had proposed a treaty, because the CSCE could only establish a court
through a treaty, but now it was sent to the UN. I know that the Security Council had
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started looking at this, so on the twenty-second of February 1993, the Council decided to
establish the Yugoslav Tribunal!resolution 808. Then they tasked the Legal Office in
the UN to draft a statute that could be adopted by the Security Council.
Legally, that is a completely different situation because the Council can adopt a
resolution under Chapter 7, which is binding on everybody. That was a much more
efficient way of establishing a court than if the CSCE had to do it and then having states
ratify it. Some criticized it and said that the former Yugoslavia state will never ratify this
treaty, and I said, "That doesn't matter. As soon as the treaty is in force, the Security
Council can order everybody to abide by that statute and assist the court." But now it was
a different turn, and in May 1993 the International Criminal Tribunal for the former
Yugoslavia [ICTY] was established.
Q1: What did that proposal contain? Did you have ideas for the structure of how the
tribunal would be established, or—?
Corell: Absolutely. It is full-fledged statute for an international criminal court. I used
drafts that I had seen elsewhere. [M.] Cherif Bassiouni had provided one, etc. I used
whatever material I could lay my hands on. Of course our, shall we say, aim was to
provide a proposal that was good enough and well-structured enough to form the basis of
a diplomatic conference in the CSCE, because after all they would have then to meet and
adopt this statute in a treaty, and then they had to ratify it!as many as possible. This was
the only legal way we could use here. Then, when the Security Council took over, it
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Corell -- 1 -- 15
became a completely different matter. And I was pleased that this was the development,
because that was a much more efficient way of getting the thing going.
Q2: We interviewed Larry [D.] Johnson, who was at the Office of Legal Affairs. I know
that he was involved in working on the ICTY statute. Did his team take what you had
created and then worked with that? Do you know what the process was?
Corell: Yes. I know because it was Ralph Zacklin, my later deputy, who had the
supervisory role here in this process. Larry Johnson, Daphna Shraga, and others were
involved. Larry was definitely involved. I know that they looked at our proposal, but for
the simple reason that our legal technical solution was a treaty, they would by definition
have to take a different approach on what they produced. That is completely correct.
They produced a draft for a statute that the Security Council could simply adopt. And
that's it!
Q2: I see, so you had outlined a treaty and then they had to transform this into a statute.
Corell: Yes. A very important difference here is that we had no authority to say that the
law applicable is A, B, and C. So we looked at the national law in the former Yugoslavia,
and as is often the case there was nothing wrong with the national law. What is wrong is
that it is not applied. When we had identified provisions in the law of the former
Yugoslavia, we said, "This international court shall apply the national law." That again
was a very important legal element for us because you have to observe the principle of
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Corell -- 1 -- 16
legality. Nullum crimen sine lege and nulla poena sine lege! there is no crime if there is
not a law making it a crime and there is no punishment unless the law says that there is a
punishment.
The UN could take a different approach, so they applied actually international criminal
law and instituted that in this statute for the Yugoslavia tribunal adopted by the Security
Council. We had completely different legal starting points in the processes of the CSCE
and the UN. But the important thing that took place was that when the Security Council
adopted the resolution in May of 1993, by doing so, they actually sent a signal around the
whole world that from now on, every perpetrator of these kind of crimes should know
that the principle of legality is actually fulfilled. If they could set up a tribunal for this
situation dealing with the crimes already committed, so you can do in the future as well if
you commit crimes of this gravity.
Q2: But the former Yugoslavia would have ratified the Geneva Conventions, right?
Corell: Yes.
Q2: So when the state split apart, what are the implications for the new states under
conventions like that?
Corell: That is a different topic in a sense, but certainly you have the succession of
treaties. Normally with this kind of treaties you would succeed them if you become a new
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Corell -- 1 -- 17
state. I had this experience with Hong Kong, for example, when they separated from the
United Kingdom [UK]. I had a major exercise with China and the UK to sort this out; that
process was a very interesting treaty experience.
To return to the question here, my point is not so much whether they had ratified or not.
Any state in the world, even if they have not ratified the Geneva Conventions, should
know that the Security Council has taken upon itself to establish a court, to establish a
criminal law even for crimes already committed. This means that the principle of legality
has taken a new course, as it were. Anyway, end of that parenthesis.
I went back to my ordinary dealings in the ministry negotiating with states. I had three
delimitation negotiations over the years in the Baltic Sea!the maritime zones and so
forth!very interesting experiences. Then I heard in the autumn of 1993 that I was on a
short list because my predecessor Carl-August Fleischhauer had been elected judge to the
International Court of Justice, so he would leave the United Nations. In January 1994 I
had a telephone call from Boutros Boutros-Ghali asking me to join his team as the Legal
Counsel of the UN. Of course, that is an offer you do not say no to. I think the Legal
Counsel of the UN is probably one of the most interesting legal positions in the world, at
the crossroads between law and politics. So I accepted that.
Q2: Were you intimidated at all by that, by the idea?
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Corell: I had been so much involved now with colleagues around the world, with
negotiations, the war crimes issues and so forth, so I felt quite familiar with the subject
matters. Also I understood, because I had been head of a legal department for many
years, that if you are head of such a department, you have to be familiar with many fields
of the law. I sometimes think that if I had been a professor of international law, I would
have been helpless as the Legal Counsel of the UN.
When I came to the UN in March 1994, I had six divisions!the Office of the Legal
Counsel with Mr. Zacklin, my highly valued deputy and his team. That was like a fire
brigade. You never knew what would happen in the day!what you had to deal with
when you came into the office in the morning. Then I had the General Legal Division,
which are the in-house lawyers!everything that happened within the organization. There
you had contracts law, labor law, defending the organization before the labor court in the
system itself, and assisting all kinds of institutions in the UN system. Then I had the
Codification Division, which was the secretariat of the Legal Committee of the General
Assembly and of the International Law Commission. They provided assistance in drafting
treaties and so forth. They were the secretariat at the Rome Conference for the
establishment of the International Criminal Court [ICC], for example.
Then I had the Division for Ocean Affairs and the Law of the Sea. Seventy percent of the
globe is oceans. There, all of a sudden, in 1994 the Law of the Sea Convention entered
into force. So I was responsible for establishing the three organs under the
convention!the International Seabed Authority in Kingston, Jamaica, where I had an
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Corell -- 1 -- 19
office when I came to the UN, and then the Law of the Sea Tribunal in Hamburg, where a
former staff member, Vladimir [Vladimirovich] Golitsyn, is the president, and then the
Continental Shelf Commission, which sits in New York and is serviced by the Legal
Office in the UN, often mistakenly named as the UN Commission on the Limits of the
Continental Shelf. But it is not a UN commission. It is a completely independent
commission, but serviced by the UN. If you look at the writings about the Artic now, you
will see the importance of this commission. How far does the continental shelf go up into
the Arctic Ocean?
Then I had the UNCITRAL secretariat sitting in Vienna, the secretariat of the United
Nations Commission on International Trade Law, one of the best functioning
commissions in the UN system. That was sitting in Vienna. Lastly, the Treaty Section,
where we did all the treaty things that the Secretary-General is responsible for in the UN.
So it was a very broad, shall we say, area where we had to deal with everything from
criminal law to international law to labor law or whatever. It was a fascinating task. I had
a wonderful staff, and when I heard in particular Americans criticizing the UN secretariat
as overpaid bureaucrats, I said, "I can take my department and challenge any law firm in
your country and we will see who comes out number one."
Anyway, when I joined the UN on the sixth of March, one month later, the sixth of April
1994, the plane went down in Kigali, and all of a sudden we had the genocide there. The
ICTY had then already been established before I came to the UN, but they were sort of
getting into the tracks, as it were. I will come back to that later.
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What I will do now is I will tell you about Rwanda, because I never forget BoutrosGhali's desperate demands or pleas for 3,500 paratroopers. The military experts said that
that would be enough to stop what was happening. No state was prepared to provide
those troops. Of course in the U.S., they had had the Mogadishu experience a few months
earlier, so I think that there was a reluctance there to put men and women in harm's way.
To make a long story short, the Security Council started dealing with Rwanda. The UN
mission in Rwanda was not a peace enforcement mission, it was a peacekeeping mission
to supervise the implementation of a peace accord, so they were not equipped for fighting
battles in the battlefield. But now, of course, the situation had changed and the French
were sending troops in June. Then the situation changed in Rwanda, and in November the
Security Council decided to establish the International Criminal Tribunal for Rwanda
[ICTR].
Q1: What was your reaction to the reaction of other states!the international reaction to
Rwanda? Did you see that it was proper? Did you think that the UN took the correct
course?
Corell: Well, when you talk about the UN you have to be very careful, and I have given a
lecture on this!"Who Needs Reforming the Most - the UN or its Members?" You have
to be very careful because the person who is seen as a representative of the UN is the
Secretary-General, and often the Secretary-General is blamed for things that he can do
very little about. As I said, Boutros-Ghali was asking for what the military advisers said
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Corell -- 1 -- 21
would stop it, and it was not provided. So it is actually the states that have to take the
responsibility here, and I think that they should have acted with more determination in
the case of Rwanda. In June at least they allowed the French to go in with their troops
and there was an operation there, but still so many lives were lost. I will come back to
that later when we come to the responsibility to protect.
Anyway, I come now to November 1994, when I was sent to Rwanda to convince
them!President [Pasteur] Bizimungu, then Vice President [Paul] Kagame, and Prime
Minister [Faustin] Twagiramungu!that they should cooperate with the ICTR. Can you
imagine!in this situation Rwanda was a member of the Security Council, and they voted
against the establishment of the court. I will never forget flying in over Rwanda where I
observed that there were houses everywhere!not cities but houses!and I knew that
Kigali was ahead, so I made a comment and my security officer who followed me said,
"Mr. Corell, I'm afraid that there are more houses down there now than people." That was
genocide exploding in my face.
Again, I met with the president. This was the only time I have had a conversation with a
head of state where a man in fatigues and a Kalashnikov across his knees was sitting in a
corner, but that's the truth. We had a rather animated discussion, not unpleasant but very
forceful arguments on both sides. "Don't come here," he said, "with your European ideas.
This is Africa. Here we apply the death penalty." I said to him, "Look, these people that
you are looking for, they have fled your country. There is no way states will deliver them
to you, when you will kill them after some kind of trial here. It is much better to
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Corell -- 1 -- 22
cooperate with the Rwanda Tribunal because that is a proper tribunal. Then they will be
brought to justice, I can guarantee you that."
Anyway, we parted, and I spoke also to Kagame and to Twagiramungu, who was more
understanding and understood what I meant by this. Then, of course, I was involved in
the establishment of the ICTR, and I later also visited Arusha. Ralph Zacklin, my deputy,
had visited the region beforehand to identify the best place to have the seat of the
tribunal.
Q2: Were there other candidates besides Arusha?
Corell: Certainly we were looking at Kigali, definitely, because as always it is better to
have the court in the midst of things, where the things happened. That was not the
situation here; it was not safe enough.
Q1: Of course.
Corell: Arusha was the natural—and that is of course where the East African Court of
Justice also has a seat, so I think it was a natural place to look for. Nairobi of course was
an alternative. But to make a long story short, Arusha was the seat of the court. I visited
that later in another context, and then I also visited Rwanda. I was in Kigali later in the
process.
!
Corell -- 1 -- 23
When we come to the Yugoslav and the Rwanda tribunals, it is very important that you
understand that my interaction with these tribunals was more of an administrative
character. The cases were for the courts. It would have been wholly inappropriate for me
to involve myself with that. As a former judge I knew that, so I tried to focus on the
administration of the courts. For example, with the ICTR, we had to start by identifying a
new prosecutor, because there was a prosecutor who did not function so well. That was
when we identified Richard [J.] Goldstone, who has been mentioned, and you will be
interviewing him, I know. So these were the kinds of things!and to see to it that there
was also money allocated properly for the courts so that they could operate.
Q1: There were some issues early on getting that tribunal the kinds of resources that it
needed, right?
Corell: Yes, this has always been an issue because courts are rather expensive to run. At
the same time, you have to look at this as an investment for the future, because if you
compare the costs of the courts with the cost of some missiles that you use in warfare, the
comparison is very surprising. These methods of war are very, very expensive. What we
have to focus on for the future is to establish the rule of law in the world. And if you do
not have a functioning criminal justice system, things simply will not function. As I said
in our discussions the other day, imagine that in a country there is no criminal law
applicable in a state or in a county. That would be a platform for criminal activity that
would threaten the rest of the country. It is the same thing with the world!as long as
!
Corell -- 1 -- 24
there are areas in the world where there is no proper criminal justice, that part of the
world will be a platform where threats to the rest of the world will be orchestrated.
This brings me to two other situations, namely Cambodia and Sierra Leone. When we
come to Cambodia, we should remember that we had just been involved in setting up the
Yugoslav and the Rwanda tribunals. In 1997, the co-Prime Ministers Hun Sen and Prince
[Norodom] Ranariddh turned to the UN. They would like to have assistance in bringing
the leaders of the Khmer Rouge to justice. This led to the appointment of a committee
chaired by Sir Ninian [Martin] Stephen of Australia, who had not only been the governor
of Australia, the queen's representative in Australia, but also he had been a judge on the
ICTR, so he had this experience. So he was chairing this commission or committee and it
was serviced by my office, and Daphna Shraga was the officer who was in attendance.
After visiting Cambodia and deliberating, they came back with a proposal that an
international court should be established, and that proposal was then discussed.
In the meantime, Hun Sen had ousted Prince Ranariddh, who was no longer co-Prime
Minister; he had been made president of the National Assembly, which of a course is a
dignified position but it is not an executive position. He had not the same way of
influencing the decision as in the past. Then Hun Sen changed the whole concept: they
did not want an international court; they wanted assistance for a national court in
Cambodia to deal with this. Of course, this was very troublesome because we knew that
the judiciary in Cambodia had no independence whatsoever.
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Corell -- 1 -- 25
Q2: Did you have any misgivings about the creation of this court given the lapse of time
between the events in question and!?
Corell: Yes, certainly lapse of time is a problem, but at the same time, when you have
crimes of this gravity, I do not think the lapse of time is the major problem. The major
problem is to have an independent court that can exercise its functions independently
from the administration and the government. Here we started a very lengthy process. Mr.
Zacklin went there first with others. He examined the situation, and we were then asked
to go to Cambodia to negotiate. This was in 1979 when Hun Sen changed the whole
scenario.
Now I will make a stop here with respect to Cambodia and I will now go to Sierra Leone,
because in the meantime Sierra Leone had turned to the UN asking for assistance in
bringing people to justice. They came to the UN; we had President [Ahmad Tejan]
Kabbah in June 2000. Could we assist here? Again, we sent a small mission there,
because the Security Council immediately said, "Yes, we have to assist, but we will not
set up a court of the size of ICTY or ICTR. We have to do this differently." Of course,
this was a former UK colony so English was an official language, so we could set up a
court that was not as complex as the other two courts.
In August, the Security Council asked the Secretary-General to negotiate an agreement
with Sierra Leone to establish a court. Ralph Zacklin was sent with a mission
immediately in August-September 2000 to look at the situation and he came back and
!
Corell -- 1 -- 26
reported on how this could be done. I then went to Sierra Leone for negotiations with
Solomon Berewa, who was the Minister of Justice in Sierra Leone at that time. Then I
had a government that really wanted to create an independent court, and they were very
forthcoming in the negotiations. And surely they understood that there had to be a
majority of foreign judges in the chambers because there was a registry, there was a
prosecutor, and there were chambers!a trial chamber and the appeals chamber!and
here there was no problem whatsoever.
The interesting thing is that when we identified candidates for the Secretary-General to
appoint on the court—I understood that in the Commonwealth where Sierra Leone is
party, they can actually send judges amongst countries so they can serve in other
countries because they belong to the same legal system, as it were. Later, when I assisted
Kofi Annan in Kenya, I noticed that the only officials in Kenya that do not have to be
nationals of Kenya are judges, because they can bring in judges from other countries to
sit on the high court. So to make a long story short, when it comes to Sierra Leone, those
negotiations were very, very "easy" in comparison to the negotiations with Cambodia.
Already on the sixteenth of January 2002, I signed the agreement with Solomon Berewa
in Freetown for the establishment of this court, the Special Court for Sierra Leone, and it
was set up very quickly.
There is one thing I regret with respect to Sierra Leone, and that is that I did not caution
the Secretary-General about the financing of the court, because the Security Council had
said that they did not want to have assessed contributions for the court. To me this
!
Corell -- 1 -- 27
became a constitutional question, and later in life I regretted that I did not raise that
question in that context, because what credibility would courts have at the national level
if they were financed by contributions from all kinds of interests?
Q2: Or that the head judge had to go and ask for contributions.
Corell: Yes, exactly. So by definition, courts should be funded by assessed
contributions!by taxes at the national level or assessed contributions at the international
level. This of course became a problem because then they had to go out and beg for
money. I do not think that this has influenced the impartiality and independence of the
Sierra Leone tribunal, but for the future I think that this is a very important lesson that I
have learned; that by definition courts should be financed through taxes or assessed
contributions.
Q2: I think that when there have been situations in Cambodia certainly, but also in Sierra
Leone, where the local staff is not being paid while the international staff is being
paid!I'm sure that sets up some resentment within the ranks.
Corell: Definitely in Cambodia. Yes. Anyway, we are now on the sixteenth of January
2002. When I had signed the agreement with Solomon Berewa, I went to the SecretaryGeneral and we started going over the records when we discussed Cambodia, and we
came to the conclusion that we had lost confidence in that process. In the meantime, there
were so many engaged, sometimes even behind my back!.
!
Corell -- 1 -- 28
Yes, in February 2002 we came to the conclusion that we had lost confidence in the
process in Cambodia and Kofi Annan decided that we would withdraw from the
negotiations, which we did. In the meantime they had introduced all kinds of features in
the negotiations, including something called "supermajority." These are the kinds of
things that are invented by people who do not have courtroom experience, because as a
judge I reacted very strongly against this. Supermajority meant that they would have a
majority of Cambodian judges on the bench and a minority of international judges, but a
supermajority would mean that if there were five judges, the three Cambodians and one
foreign judge would have to agree that that would be a decision. This may function when
you come to the final judgment, but in a trial there are hundreds and hundreds of
interlocutory decisions to be made. How do you deal with a supermajority there? It
becomes a mess.
Then they wanted to have the French system, not only with a prosecutor but also with an
investigating judge, and that complicates the situation tremendously. A further
complication was that they were used to co-prime ministers, so there should be coprosecutors and co-investigating judges. I had warned against this.
Q2: One international and one Cambodian judge?
Corell: Yes, exactly. When we had this messy situation, Kofi Annan decided to
withdraw. Then all of a sudden the General Assembly woke up and they said, "This is
!
Corell -- 1 -- 29
unacceptable. We have to pursue this." So, in December 2002 they adopted a resolution
forcing us back to the negotiation table!a resolution that was formulated in a manner
that I was not allowed to raise certain elements in the negotiations. I did not want to
contribute to the United Nations giving its hallmark to an institution that would not stand
the test of how an independent court should function!that did not observe the
international standards for international criminal law.
Anyway, to make a long story short, we had two more rounds of negotiations!one in
January 2003 in New York. That was the first time my opposite party, Deputy Prime
Minister Sok An, came to New York, and he did so because he wanted also to talk to
others. He also saw the Secretary-General. So we had one round of negotiations. Then I
went to Cambodia in March 2003 for the final round. At least I managed to have some
elements respected in the agreement, but this is the only agreement where I insisted to
bring into the text a very important provision in the Vienna Convention on the Law of
Treaties, namely the provision that says that it is the international agreement that governs
the result when you come to the national level. They had insisted that it was their national
law that should be this superior document here, and they had actually!against my
advice!enacted the law before we had the full-fledged agreement. So this meant that
they had to amend the law partly.
I was not at all pleased with the result, and you can see that from the photograph from
Chaktomuk Theater when we were signing the agreement!it is on my website!that my
mind was very much occupied with: what is the result of this? At the same time, I had to
!
Corell -- 1 -- 30
support the court because I was sure that the international judges, prosecutors, and
investigating judges would try to do their very best. But I warned from the beginning
against creating a feature like this. I do not like to say, "What did I say?" but I have
actually done this in the case of Cambodia. When people ask me whether that solution
should be a model for future courts in these kinds of situations, my determined advice is:
"No, under no circumstances."
Also, there is one element in the Cambodia agreement that is important!we had to
institute a Pre-Trial Chamber. The only task of this Pre-Trial Chamber is to solve a
dispute between the co-prosecutors or the co-investigating judges; that was my only way
to protect a case at least in the sense that a prosecutor could go before the court, present
his case and allow the general public to listen, so that they can make their own
assessment when the judgment is handed down. It may not stand the test of what a fair
trial should provide. But then I think that they abused the Pre-Trial Chamber; they have
adopted rules of procedure giving this Pre-Trial Chamber a much broader role than I had
intended. I think that this is completely out of the picture. We were forced to institute this
Pre-Trial Chamber simply to protect the process as far as we could to have a public
hearing where the prosecutor could present the facts before the general public.
Q2: You've given us an idea of your views on the Cambodian tribunal, but when you look
back at the ICTY and the ICTR, what are your views about their successes and failures?
Many years ago, Ralph Zacklin, who was also involved, was very critical of the ad hocs
for their expense and their inefficiency. I don't know if that was a 2006 article that got a
!
Corell -- 1 -- 31
lot of attention. It was a very short commentary but rather scathing. I just wonder what
your views are at this point.
Corell: First of all, we must remember that these were, shall we say, the first attempts to
establish international justice, criminal justice after Nuremberg. Nuremberg was a
different time, different era; they could even administer the death penalty, which of
course is impossible today for an international criminal court. I think that is completely
out of the picture. One could of course be critical of the Yugoslav and the Rwanda
tribunals in that they take such a long time!and I will come back to this because we
have not even started talking about the International Criminal Court yet, but I have views
here that I intend to connect to your question about how they have fared.
If you look at it in a long-term perspective, at least this was a signal to the world
community that if atrocities are committed, then there is this possibility that the Security
Council actually enacts or adopts a resolution establishing courts where people can be
brought to justice. Also the fact that people at high levels were brought to justice!this is
I think one of the hallmarks of an international criminal justice system. This is where you
have to look, at the beginning, because after all, in most cases, this is where the orders are
given. Even if orders are not given, there could be situations where the head of state or
the head of government would simply have to stop their own military because they would
understand that they are transgressing the rules of what is permitted under international
humanitarian law. In that sense the fact that they were established and that some people
!
Corell -- 1 -- 32
were brought to justice I think is a very important signal, so in that sense I think they are
a success.
Also the Sierra Leone tribunal!if somebody had suggested to me on the sixteenth of
January 2002 that Charles Taylor would be brought to justice before that court, I would
have shook my head and said, "How did this happen?" But again, it became reality.
I never ever forget my meetings with the traditional chiefs in Sierra Leone who
came!some twenty-five of them, a few of them women!and asked me, "Why are you
coming here with this court that can only bring a few to justice when we know that
among us so many others have committed the most hideous crimes, like chopping off
hands and feet of little children and so forth?" I said to the chief, "What can I say to you
as a white European? What I can ask you to do is to look at Africa and your own
continent and how people and statesmen have acted here!Kofi Annan, but here in
particular Nelson Mandela. What did Madiba do when he came out of prison? They
established a truth commission. So, you have one in Sierra Leone. You have to work at
both ends. If you would bring all these people to justice, even the most modern, wellorganized criminal justice system would crumble because there are too many cases,
actually."
Let me!before I am too lengthy here!come to the International Criminal Court. Here
of course the development in Yugoslavia meant that it took a leap in the General
Assembly. This matter had been on the agenda since the late 1940s, and the Genocide
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Corell -- 1 -- 33
Convention contains provisions on setting up an international criminal court, but nothing
much had happened. Then all of a sudden it did happen, And the one who took the
initiative was actually President Arthur Robinson, then I think Prime Minister in Trinidad
and Tobago, who went before the General Assembly in 1989 and said, "We should set up
an international criminal court." His concern was not war crimes or crimes against
humanity; his concern was drugs. The small states in the Caribbean could not master the
drug cartels so they needed assistance.
This did not come true in Rome, but Robinson was so pleased with the outcome in Rome.
When the treaty entered into force after the eleventh of March 2002! we had the sixty
ratifications then!there was a ceremony in the UN and Robinson came, and he
participated very, very warmly in this ceremony. He even issued later a series of stamps,
where there are photographs of himself and Kofi Annan and himself and me and others
who were involved in Rome, so he celebrated that in Trinidad and Tobago.
To come back to the General Assembly, they decided to ask the International Law
Commission now to seriously draft a draft statute for an international criminal court, a
standing court. To make a long story short, there were several attempts here and there
were some committees organized by the Sixth Committee working on this.
Adrian Bos, who was the Legal Adviser in the Netherlands, had a critical role here. In
December 1997, the General Assembly decided to convene the Rome Conference in
1998. Adrian then had some health problems so he could not take the role to be head of
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Corell -- 1 -- 34
the Committee of the Whole in Rome!I think that had been the intention from the
beginning!so Philippe Kirsch of Canada was asked to assume that function. President
was a prominent Italian personality, but it is the chairman of the Committee of the Whole
who is the critical person in such a conference. We organized everything, and I was the
Secretary-General's representative, so I was responsible for the organization of the
meeting in Rome with my staff from the Codification Division.
Q2: Can I ask just a practical question? Who foot the bill for all these preparatory kinds
of meetings? Was it the UN or did states come forward?
Corell: Yes, it was the UN footing the bill, but the participation is funded by the states
that send their delegates there. Then there were also other meetings—I attended one of
them!a meeting in Courmayeur in Italy, between Italy and Switzerland up in the Alps.
That was a meeting of experts, a preparatory meeting before the Rome Conference. I
went at the expense of the UN, but all the delegates came at the expense of their
governments. I think that the host country provided also assistance in that context. So
there was a tremendous energy focusing on the Rome Conference.
Then of course, when the conference was organized, I had an excellent cooperation with
the host state, Italy. Italy is said to be not so well organized, but really when you really
need their assistance they are so well organized. For example, when I transferred the
Lockerbie suspects from Tripoli to the Netherlands, I had a sterling cooperation of the
Italian security forces, and the Italian Air Force!absolutely sterling cooperation. The
!
Corell -- 1 -- 35
same thing with Rome!it looked a bit disorganized from the beginning but when the
conference started everything went just ta-ta-ta.
Q2: Fell into place, yes.
Corell: Yes, definitely. We used the premises of a UN organ in Rome!FAO [Food and
Agriculture Organization of the United Nations]. The premises was not a problem; the
problem was really that this was the most document-intensive conference organized by
the UN!more than seven hundred documents were produced during these few weeks.
Q2: My gosh!
Corell: And they were translated into all the different UN languages. I had organized with
Geneva and New York, so we had translators working there, so documents were sent with
modern communication means to Geneva and to New York. The next morning the
technicians took care of the translations, and then they were in the pigeonholes of the
delegations so they could continue their work. It was an intense work. Kofi Annan was
very interested; I reported continuously to him and sometimes I suggested that he should
make a telephone call to a particular state and so on. Basically I was not meant to be
involved in the negotiations; it is the states that negotiate. Had I been involved in the
negotiations, I would have advised against candidates List B that eventually was agreed
on.
!
Corell -- 1 -- 36
Q2: And that's the—?
Corell: This list allows people who are diplomats and professors of law and all kinds of
things who never set foot in a courtroom to be elected judges of the ICC. This brings me
back to your question about the success of the Yugoslav and the Rwanda tribunals and
the success in general of these courts. It is for me inconceivable that you elect persons to
sit as judges on the ICC who have never set foot in a courtroom. I think if you ask
professional judges who have served on the ICC you will get the same answer. You have
to hit the ground running; you cannot afford having people doing on the job training here.
We are more than seven billion people on the globe. For heaven's sake, could you not
find eighteen people who have these qualifications? And among those professional
judges, maybe there are those who also have academic experiences?
Q2: Because there's certainly enough movement back and forth.
Corell: Absolutely, so you could do that.
Q1: It's a political choice for some of these judges, right?
Corell: Yes.
Q2: There was a judge at the ICC who didn't have a law degree!
!
Corell -- 1 -- 37
Corell: Yes, indeed.
Q2: !because she was from a country they wanted to bring on board. I'm assuming that
was what the justification.
Corell: This is one of the most serious issues here. If I might come back to the ICC, as
you know, the treaty was concluded on the seventeenth of July 1998. Kofi Annan was in
Argentina. He was very nervous because this was an official visit so he could not just
leave if there was nothing to do in Rome. So he kept calling me. I said, "I don't know.
They still have to take a vote here." He tells this story himself, that in the final call I
went, "They are going to vote in some time, but you have to go to the airport because
your plane leaves within a couple of hours. You have to be at the airport in case there is a
treaty."
Then all of a sudden my phone goes off, and I am sitting on the podium, and the room is
just in waves because they just got the result from the vote so people were jubilant. The
phone goes off, and when I hear Kofi Annan say, "Hans, is there a treaty?" I said,
"Listen," and then I held the cell phone in the room and I said, "Did you hear?" And, "I
guess there is a treaty." I said, "Yes, Mr. Secretary-General!" So he hopped on the plane
and went up to Frankfurt. Then I went up to Frankfurt with an Italian officer and met
him. On the way back to Rome he finalized his statement to be read, that he read out on
Campidoglio in Rome. I remember reflecting on this. The U.S. had voted no!
!
Corell -- 1 -- 38
Q2: How many states did vote no?
Corell: Seven.
Q2: Seven out of!?
Corell: I forget now exactly how many votes were in favor.
Q2: But it wasn't every UN member state that was represented?
Corell: No, there were some hundred sixty states who—
Q2: Oh, there were a hundred sixty—
Corell: —who participated in the conference. Let me give you the figure—160. Where
was I now? Yes, I was on the Campidoglio. The U.S. had voted no, and it was very sad,
because the western democracies simply have to take the lead and they should subject
themselves to what they expect states around the world to accept. My thoughts wandered
from Campidoglio!or Capitol Hill, as it is in English!down to Forum Romanum and
the Curia, where the mighty Roman senators sat two thousand years ago. I asked myself,
how come the heirs of these mighty senators today are among the warmest proponents of
this court? Could it be that the people of Italy represents not only history but also the
future? I can think of no people better placed than the people of Italy to explain to other
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Corell -- 1 -- 39
mighty senators on another Capitol Hill that they should join hands with the rest here.
This was my philosophy.
Q1: That's an apt comparison.
Corell: It was an extraordinary experience when already in March 2002 we had the sixty
ratifications that were necessary for the entry into force of the Rome Statute. This
happened on the first of July 2002, and then we swore in the judges in!I think it was in
March 2003!in The Hague.
Q2: Even before the sixty ratifications came in, there must have been a lot of discussion
about who would be the judges if this court became a reality and sort of jockeying for
position about who would be on the first bench, no?
Corell: Yes, certainly we expected that. Of course, if you look at the first election of
judges, there were many persons who had been present at the Rome Conference and that
could of course be discussed whether that is a positive or a negative result. On the other
hand, I took the view that in the first few months it is more a question of establishing the
court, setting up the court, drawing up administrative rules and so forth, and experience
from earlier negotiations and so forth then that could have been an advantage.
My basic philosophy, which I expressed on several occasions and which is also in the
special motivation of the proposal for the Yugoslav statute that we made!they asked me,
!
Corell -- 1 -- 40
my co-rapporteurs, to draft the commentaries to the provisions. There I said, "You will
note that in the provision of the qualification of judges, there is no mention of
international law." This is on purpose, because in my experience, and I have dealt with
both national and international law, what finally counts when you are sitting on a
criminal court is actually the experience of dealing with criminal cases.
To deal with a criminal case at the international level is not all that different from dealing
with a criminal case at the national level. International criminal justice must be
administered expeditiously; you cannot go on month after month after month and write
judgments at the hundreds of pages. I simply do not believe in that. In criminal justice
people have to be able to understand judgments, and people in general should understand
this, so I think that we have to look at this for the future that you cannot go on like this.
Judges setting aside several months to draft a judgment; that is simply not acceptable. I
do not know how this is to be solved, but I have written an article about this in the
International Judicial Monitor !on the challenges for the ICC. I am building the article
also on the Kenyan cases. Maybe I should mention this also, because I am so
disappointed in the way these cases developed.
Q2: Especially after your work in Kenya.
Corell: Yes, precisely because of my work in Kenya. Also, I told you I was chairman of a
committee in Kenya; I led a working group that drafted the legislation that governed the
coalition government for five years in the country. One of the four members!except
!
Corell -- 1 -- 41
myself, there were four Kenyans!two for the PNU party [Party of National Unity], two
for the ODM party [Orange Democratic Movement]. One of the members from the ODM
party was William Ruto.
Q2: Ah.
Corell: He was on my committee. He was very constructive, as they all were. They
worked very well in that group. They understood that we had to produce something that
could resolve the question of how to govern the country. When William Ruto was among
the suspects, my heart sank. I do not know where the fault lies here, whether [Luis
Moreno] Ocampo rushed away to the court before he had a solid case. As we know,
Hans-Peter Kaul had a different opinion here!unfortunately he is no longer among
us!but he took a different view, whereas the two other judges said, "There is a case, so
please go ahead with the prosecution."
If you had asked the law court clerk Hans Corell more than fifty years ago about this
situation!. I was taught one thing by the senior judges: if you indict someone for very
grave crimes, by definition you arrest that person and put him in detention on remand
because otherwise he will try to evade justice. In some cases, they will try to meddle with
the evidence. This is precisely what has happened here in Kenya. The Uhuru Kenyatta
case is no longer before the court. I think that this kind of dealing with a case is not
professional.
!
Corell -- 1 -- 42
I understand that also there have been difficulties to have assistance from Kenya, and I
know that one person who is no longer with us, Mutula Kilonzo, the Minister of Justice
of Kenya!I had conversations with him under four eyes at the request of Kofi Annan
where we discussed the situation. He was very much in favor of the ICC trials and he
said, "But there are so many others and we have to deal with them here at the national
level." His idea was, "I will charge the High Court with those cases because at the High
Court you can have foreign judges also." He wanted to demonstrate that foreign judges
should also be involved in those trials.
Q2: Foreign, meaning commonwealth judges?
Corell: Yes, exactly. But then he was found dead in his summerhouse under very
mysterious circumstances almost two years ago. I have still not seen the autopsy. He had
vomited in his bathroom and his bed. I do not know what happened there. So what you
see here in Kenya is a situation where the ICC allowed people who were indicted for
these very grave crimes to go back home. The question I am putting to myself is: if they
had not been allowed to go home, what would have been the atmosphere in the country?
Maybe there would have been many, many people coming forward saying, "We
understand now that they are serious about bringing people to justice." When they do not
arrest them, then maybe this—"We dare not say anything now." I will stress though that,
having made these comments, I am also anxious to make the comment that the principle
of—you are not guilty until you are found guilty—the presumption of innocence is a
must here. I am not suggesting that one should sidestep the presumption of
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Corell -- 1 -- 43
innocence!under no circumstances!but when you deal with criminal cases—and this is
why I use the saying of Dag Hammarskjöld!"Openness to life gives a swift insight!
like a flash of lightening!into the life situation of others. A must: to force the problem
from its emotional sting into a clearly conceived intellectual form!and act accordingly."
This is precisely so.
Even as a judge, I could be just as upset as anybody else when I read in the papers about
some heinous crime having been committed. All of a sudden, the case is before you in the
court. Then you become the surgeon [makes click sound]: "Prosecutor! Defendant!
guilty or not guilty? What is your argument here? Defendant, your arguments?"
Witnesses, etc. You become almost like a surgeon in dealing with it. Your emotions have
to step back; you have to be the professional. This is how criminal justice must be dealt
with, that you have to think of your role here. What is your role in this situation? If you
are a judge on a criminal court then you have a duty towards the defendants, towards the
prosecutor, towards the community and towards yourself to perform professionally under
the law.
Q1: You mentioned the length that some of these courts have been in existence and the
issues therein. Could you have imagined that the ad hocs would still be going on today?
Corell: [Sighs] Maybe not this long, no. At the same time, I was fully aware!and that
was already when we drafted our proposal for the Yugoslav tribunal!that once you have
a judgment and you have somebody sentenced to a long prison term, that person has to be
!
Corell -- 1 -- 44
looked after, if I may say so, during that period. There has to be, finally, a judicial organ
that can make decisions in relation to the serving of that sentence, whether for example
having served so many years the person could be set free as you have systems for
conditional release from prison and so forth. So there has to be a judicial supervision of
the serving of sentences. And who does this?
Also you have the archives!whether you have to have an institution to make decisions
in the future. Now they have solved that in a special way. Richard Goldstone was
involved in that!how they should deal with the archives. I had imagined that if you
could wind down these tribunals, then these very narrow elements that I just quoted could
have been done by the International Criminal Court.
Q2: Instead of having a residual mechanism you mean?
Corell: Instead, yes. They have decided on the residual mechanism. I am not familiar
with the details in a manner that I could say that that was not the right decision!on the
contrary. But sooner or later the day may come when they have to, shall we say, channel
everything into the ICC, because you need to have a judicial organ as long as there is
anyone still alive serving a sentence.
Q1: You've mentioned that your role for setting up the tribunals for Yugoslavia and
Rwanda was mostly administrative, but I wonder if you could talk a little bit in more
!
Corell -- 1 -- 45
specifics about what you were doing at that time to get these tribunals off the ground.
You came on the tail end of Yugoslavia, right?
Corell: Yes. For Yugoslavia I came in at the tail end, but I met with the judges and we
discussed certain administrative elements. I will never forget that the first meeting I had
with them. Also in the case of Rwanda, of course I was there also for the swearing in and
the identification of the judges, but it was mainly to see that they were serviced in a
manner that they could work. At the same time, the Office of Legal Affairs is not an
administrative department; it is for the administration to deal with that, so it would be a
cooperation between the Registrar of the court and the Controller of the UN, for example.
That was a process that we were not so much involved in. What we could look at was, for
example, elements where things had got stuck and we could deal with that. Then of
course always to see to it that you could reelect or elect judges and prosecutors and the
top staff. There we were involved in identifying personalities.
Occasionally there were situations where we were involved more on the, shall we say,
prosecutorial-judicial side. I remember in particular one case where Richard Goldstone as
prosecutor had asked to have a person heard as a witness in a case, and that person was a
staff member of a UN organization or from the UN system. They were very worried in
that organization that colleagues of this witness in the field might be in jeopardy because
this person would be seen as somebody who is spilling the beans, and was this putting the
other people in the field at risk? When I saw this I said, "The prosecutor needs to prove
his case, so this is very serious. Why not contact Richard Goldstone?" So I explained the
!
Corell -- 1 -- 46
situation to him, and he fully understood, and I said, "Is there any other way in which you
can prove the things you intend to prove with the witness?" He said to me, "I will think
about that." And he came back and said, "I have found another method." So he abstained
from calling this particular witness in the case.
These are the kind of things where you discuss it with complete respect for the function
of the other institution!in this case the prosecutor!but also expressing concern on
behalf of colleagues in another part of the UN system. There was in this case a way of
solving the issue without, shall we say, putting the case in jeopardy or risking what the
prosecutor was obliged to do.
Q1: A very diplomatic approach.
Corell: Yes. Also of course I had contacts with Richard Goldstone's successors from
Switzerland and Canada!Louise Arbour, the last prosecutor with whom I interacted. So
that is a natural thing. At the same time, these courts were completely independent in
their judicial function!the prosecutorial function. That is very, very important to
remember. I remember that Louise Arbour felt obliged to inform Kofi Annan when she
indicted Milošević. I remember because we happened to be, Kofi Annan and I, in
Stockholm, So we were sitting in his hotel when Louise Arbour came to inform him
about this. She thought it was a courtesy matter, a matter of being up front with him.
!
Corell -- 1 -- 47
Q2: Hans, how could you articulate the lessons of the ad hoc tribunals for the
international community as you look back over the last!now more than twenty years?
Corell: If I look back not only on the twenty years!if I look back on more than fifty
years service as a lawyer in different functions, in the community back home and
internationally, what it is all about is to prevent criminality and prevent conflict. We are
discussing criminality!that we will never get rid of; there are always humans who are
predestined to engage in criminal activities. What is important is that you avoid conflict
among states or within states, because that is automatically when criminality is generated;
the situation produces criminality. This is what we have to fight.
The only way to do this is to prevent, and a first step in prevention is to work for
democracy and the rule of law. If you ask me when there is a conflict anywhere in the
world, "Why is there a conflict?" my answer would be the same: no democracy, no rule
of law! This is why I am so much engaged in working for the rule of law today. If you do
that, then by definition you will have as a consequence a system where people can vote
for their legislature, where they are allowed in various forms to nominate their
government, or maybe even also elect the head of state. And also there would be a justice
system so those who violate the law would be brought to justice. People have to have
confidence in that the system works. This means that all must bow to the law and all must
be equal under the law.
!
Corell -- 1 -- 48
If you ask me to define the rule of law!there are books written about this, but I have a
very simple definition in four elements. First of all, you need democracy, because that is
the only way you can have the second thing which is necessary, namely proper legislation
respecting international law, particularly in the field of human rights, because the elected
legislative body is a legitimate body to produce the legislation. Those are interdependent.
Those are the two first elements.
The third element is the institutions to administer this law. I remember visiting Belarus
after the Berlin Wall had come down and I was discussing our agreements with Moscow.
Could we apply them in Belarus? They showed me their latest law that had been handed
down. It was printed in a newspaper, and I said to myself, even if I could give them the
most modern courthouse and modern law book and computers and everything, there
would be still one element missing, and that is that third element!the institutions.
The fourth element is the persons with the knowledge and the integrity to run these
institutions. You just do not invent them; they are trained through generations of people
doing the same. I now come back to what I said at the very outset!I will never forget the
seriousness with which the senior judges went about their daily work in the court when I
first came as a twenty-some years old law clerk. That made an impression on me for life.
This is also what was so important for me!the integrity. In the UN, of course, there were
those who were critical. One ambassador, Richard Holbrooke, referred to me as one of
!
Corell -- 1 -- 49
the most despicable persons in the Secretariat because I held my position.1 I said, "If I
hear this once more I will put it in my CV [curriculum vitae], among my merits." It is a
question of integrity.
Here I have a very important quote of Dag Hammarskjöld where he talks about the
international civil servant. He actually looks at how a judge works. A judge has to take a
position. There are two parties and maybe he has to rule under the law in favor of one of
the parties. Then the other party gets disappointed and thinks that the judge was not
neutral. "On the contrary," says Dag Hammarskjöld, "this is not, not being neutral; it is a
sign of neutrality because sometimes the law forces you to take a position that would
offend one or more parties in a situation. Then you should simply maintain your inner
calm and your integrity and say, 'This is how I have come to the conclusion.' The
criticism that even so will come," he says, "then you will have to stand that criticism." I
have no difficulty in doing that.
This is what I think is so important. I sometimes say to myself, when I look back at my
ten years at the UN, that it was such a wonderful time in many senses, but thank God that
I had this in the backbone from the courts from when I was young. It was so important. I
was never impressed when ambassadors come up!"I have instructions from my capital."
"Yes, ambassador, I am listening to you, but do not for a minute believe that your
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
After the interview, Corell explained that the subject matter concerned the
manner in which the UN should deal with the real estate in Kosovo, then under UN
administration. A proposal had been forwarded of which Corell was very critical.
He based his criticism on his many years dealing with real estate law in his
country, including as a judge/registrar of titles to land.
!
!
Corell -- 1 -- 50
behavior impresses." My staff and I, for example!I started getting visits from
ambassadors. They said, "We have a countryman who has applied for a post in your
department," etc., etc. I said, "Are you trying to ask me to favor this person?" "Well!."
So I said in a staff meeting that my first reaction when I receive a visit of this kind is that,
ah, so the staff member is not convinced of his or her own merits!that they ask the
ambassador to go see me. That is my first reaction. The visits stopped.
Q2: We should look at the time because I'm not sure when you are leaving.
Corell: It's no problem for me. I've spoken so much that this will be a very long
interview, but you have to find a way of redacting it.
Q2: No, it's fine, but maybe we should—
Q1: I think we're at a good length here.
Q2: If there's anything you'd like to add that we have not covered?
Q1: Anything you'd like to say in closing?
Corell: Yes, let me see, because I had scribbled down some elements here. I think I have
covered the details. As you heard, much of what I said does not refer to the judicial
functions or the prosecutorial functions for the simple reason that I was not in that area,
!
Corell -- 1 -- 51
so you have to listen to the people who actually were there. What I will say is that if we
look at the situation in the world today, we have nation states that are sovereign, and
there is a lot of talk about sovereignty and the Westphalian system and so on. I think that
sovereignty has to be seen in a different manner than they did in 1648, but the
sovereignty is still there!not for the sovereign but for the people. The sovereignty
should be exercised in the interest of the people respecting rule of law and human rights
rules. But I see no alternative to the sovereign nation state.
We simply cannot expect to have a world government. Already when the European
Union was formed there were regions in countries who thought: do we have enough say
in Brussels? Does our capital represent our interests enough? So they established their
own lobbying groups in Brussels to lobby for the region. This sends the signal that you
cannot expect people in the whole world to believe that one single government can
represent them. This is why I think it is so important to have a reasonable number of
sovereign nation states cooperating within the United Nations.
In the United Nations we have several organs!we have the General Assembly where
everybody has a say, and then the most powerful organ, the Security Council, where there
are fifteen members, including the permanent five. They have been discussing reforming
the Council. Everybody is focusing on extending the membership of the Council!"It is
not democratic." Forgive me, as a lawyer I have to explain!the Security Council can
never ever be democratic. This is the hallmark of an executive body!it is not
!
Corell -- 1 -- 52
democratic. An executive body has to work under a charter. In a joint stock company, the
board has to work under the rules that apply to the company and so forth.
The Security Council has to work under the UN Charter; they have to bow to the Charter.
This is why I think it is important not to rush away and extend the membership of the
Council, but rather look at the present Council and see what can be done now. To change
the composition of the Council you need to amend the Charter of the UN. That is an
enormous task. By the way, all the permanent five members must agree to such an
amendment.
We should turn to the permanent five members and ask them the question, "What on
earth are you doing in the world today? Are you demonstrating the statesmanship that we
need on a globe, which had two billion people when the UN was founded? We are now a
little more than seven billion. We will be 9.6 billion in 2050. The combination of this
population growth with the climate change that you are noticing here will be an enormous
strain on the globe and also a strain on international peace and security."
"Your duty is to look to the horizon and try to identify methods of dealing with this
situation, and also work in great cooperation now when the sustainable development
goals are being discussed in September and December this year in New York and in
Paris, respectively. Do you not understand that if you continue behaving in the manner
you do"!and I am referring in particular to flagrant violations of the UN Charter, for
example the attack on Iraq in 2003, the attack on Georgia in 2008, and now Ukraine. It is
!
Corell -- 1 -- 53
almost surrealistic to see this kind of almost medieval behavior when we need people
who are statesmen who can understand that they have to identify their interests in a
broader sense than the school child in the sandbox!"It's me here and now."
So this is where my criticism is most, shall we say, determined. But if they understood
this, they ought to be able to come to agreement that even if they have differences—
Russia, China, for example, and the Western democracies—that at least they should draw
a line where a dictator or a warlord is starting killing women and children and innocent
civilians using most modern military equipment. Here they have to draw a line and say,
"If you engage in this we will come after you." This is the most effective way of
preventing these kind of events to happen, because like in a criminal justice system, if
people disposed for criminality see that one after the other is getting imprisoned, then
they might say, "Is it worth it?" The same thing here that if dictators and warlords see that
they are actually acting together!the Council!then they might abstain from these kind
of things.
I understand that there are enormous challenges. Just administering China with a
population of 1.4 billion people is a tremendous challenge, and there you have no
democracy. I had long conversations with Wang Yingfan and Wang Guangya, the
Chinese ambassadors to the UN, and I explained to them that I do not think that the
people of China are different from people in other parts of the world. One day the
government of China has to meet its people in an election, but please realize this: work in
this direction so that this can be done in a peaceful manner. In Europe we did not manage
!
Corell -- 1 -- 54
to do that; there were revolutions in France and in Germany, and there were bloodshed.
In the U.S. there was even a Civil War. If there is a revolution in China we would be able
to read it on the seismographs around the world. This is what I think is so important.
Some of them criticize China for not being a democracy. I say, "What would you do if
you were the president of China tomorrow? Would you now say, 'We will instill
democracy'?" This is not how things are done. Look at Libya now. Democracy is a
methodical process where you engage people in broader layers. Then you develop a
system where political parties are allowed and where the leaders are identified, where
people can say, "I have a confidence in this person. I will vote for him in the next
election," and so forth. This is the process that I see.
At the same time, I see another dilemma, that democracy is no guarantee that a statesmen
or women will come into power. What I said about education is necessary in all
countries, not least in the most powerful democracies in the world, because the level of
ignorance sometimes frightens me also there. It is an enormous challenge for humankind
in the future. But if we are to avoid bloodshed and these horrors that we have experienced
over time, we simply have to understand that this is the only way ahead!democracy and
the rule of law. Bow to the law. That is the only way ahead.
Q1: I think that's a good place to end.
Q2: Yes, thank you. Thank you so much.
!
Corell -- 1 -- 55
Q1: Thank you very much Hans.
Corell: Maybe I talk too much, but I am so engaged. Can you imagine, I am seventy-six
now, so some people say, "You should be playing golf!" But I can't. I simply can't.
[END OF INTERVIEW]
!
Corell -- Index -- 56
af Ugglas, Margaretha
13
An, Sok
29
Annan, Kofi
26, 28, 32, 33, 35, 37,
42, 46
Arbour, Louise
46
Bassiouni, M. Cherif
14
Berewa, Solomon
26, 27
Bizimungu, Pasteur
21
Bos, Adrian
33
Boutros-Ghali, Boutros
17, 20
Fleischhauer, Carl-August
17
Goldstone, Richard J.
23, 44, 45, 46
Golitsyn, Vladimir Vladimirovich
19
Guangya, Wang
53
Hammarskjöld, Dag
43, 49
Holbrooke, Richard
48
!
Corell -- Index -- 57
Johnson, Larry D.
15
Kabbah, Ahmad Tejan
25
Kagame, Paul
21, 22
Kaul, Hans-Peter
41
Kenyatta, Uhuru
41
Kilonzo, Mutula
42
Kirsch, Philippe
34
Mandela, Nelson
32
Milošević, Slobodan
46
Nambiar, Satish
10, 12
Ocampo, Luis Moreno
41
Palme, Olof
7
Ranariddh, Norodom
24
Robinson, Arthur
33
Ruto, William
41
Sen, Hun
24, 25
Shraga, Daphna
15, 24
!
Corell -- Index -- 58
Stephen, Ninian Martin
24
Taylor, Charles
32
Thune, Gro Hillestad
9
Tudjman, Franjo
12
Türk, Helmut
9, 13
Twagiramungu, Faustin
21, 22
Yingfan, Wang
53
Zacklin, Ralph
15, 18, 22, 25, 30