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In search of 'true reconciliation'; Judge: The American presiding over Yugoslav war crimes trials has influence that greatly outstrips her visibility. Her decisions influence human rights worldwide.

THE BALTIMORE SUN

THE HAGUE, Netherlands -- She has never held political office. She is not the head of a multimedia entertainment empire. Yet, Gabrielle Kirk McDonald is an enormously influential woman: She is president -- in effect, chief justice -- of the International Criminal Tribunal for the former Yugoslavia and oversees the appeals chamber for the International Criminal Tribunal for Rwanda.

These twin tribunals were created by the United Nations to address the atrocities perpetrated against civilians in those countries. The decisions made by McDonald and these tribunals are creating legal precedents that are changing the way the world deals with violence and bloodshed.

McDonald's office in a former insurance building here is decorated with flags of the United Nations and of her adopted state of Texas. There is even a wooden wagon train in one corner, a Dutch flea market find she says reminds her of home.

McDonald, 56, has made a lifelong passion of using the rule of law to fight injustice. In 1979, she was appointed a federal district judge, the first black on the Texas federal bench. Her highest-profile case involved harassment of immigrant Vietnamese shrimp fishermen by the Ku Klux Klan. During the trial, she and her family received death threats and one-way tickets to Africa.

In 1993, the State Department recommended her for one of the 11 judicial posts at the new Yugoslavia tribunal. Elected by the U.N. General Assembly, she was chosen to preside over the tribunal's first trial -- the first time an individual had been tried by an international court in 50 years.

Los Angeles Times reporter Kitty Felde discussed with McDonald the work she is doing.

Is a war-crimes tribunal the best way to reach reconciliation?

The theory is, and I believe in it, that you focus on personal accountability, individual accountability. Again, borrowing from the Nuremberg concept, that in order to avoid group stigmatization, you look at individuals and try individuals.

Plus, building a historical record of what transpired during the conflict, what the causes of the conflict were, will hopefully bring about closure.

What happens is that people engage in behavior over a long period of time, and then they will stop it for some reason -- either they'll stop it voluntarily or they're required to stop it. Then the attitude is, "Well, it's over. Now, let's forget about what happened. Past is past, let bygones be bygones."

If you are to have a lasting relationship and an honest relationship and true reconciliation and a forgiveness and a tolerance of people's differences, there has to be an acknowledgment of what happened. It's important for the people in the former Yugoslavia to understand our tribunal, to believe that it's fair, to believe that the [judges] are fair, that we don't have a stake in the controversy, that we're making our decisions based upon evidence that's adduced during the trial process, that involves a very active participation by defense counsel, and that it's not simply a presentation of evidence by the prosecutor to the judges and the judges accepting them.

Our decisions are to help to bring about reconciliation, but our decisions cannot do that -- even if you assume they can do that -- if there isn't a belief that the tribunal is fair, that the decision-makers are fair. And that's why I'm so interested in the outreach, or what I call the "awareness project."

You're the president of a court system without its own police force, a court that must rely on the international community to make arrests and honor subpoenas. Is this frustrating for you?

That is the way it is, unfortunately. We are an international court. We've been given authority by the [U.N.] Security Council. States are required to comply with it. But the relationship in international law between supranational bodies and states is such that states still have state sovereignty and there is only so much you can do.

If we had a police force, yes, it would make it easier. We would just send off the police force to make arrests, but that just won't happen in 1999 or in the early 2000s.

States cling steadfastly to their sovereignty and are reluctant to give it up. So I don't see a police force for the tribunal or for the permanent [International Criminal Court]. It's a fact of the beast, I suppose, that we just have to accept.

Are you satisfied with the cooperation of nation-states?

No, I'm not satisfied because half of our indictees are at large. With them being at large, they infect the whole community. Someone who is indicted, and someone who members of the community see can remain there basically with impunity, is an erosion of our attempts to build up the rule of law in the former Yugoslavia.

But it's made me less frustrated to see that [the NATO-led Stabilization Force] has come in by default to execute the arrest warrants. And that then has led to the voluntary surrenders of individuals, because they know then that their ability to hide and their ability to stand up and just basically thumb their nose at the tribunal is diminished.

The most severe penalty the Yugoslav and Rwandan tribunals can hand down is life in prison. Yet, national courts inside Rwanda can and have sentenced people to death. Does this send a mixed message to the victims of genocides?

If you assume that an international tribunal wants to apply the highest standards of human rights and wants to set an example, and that it should encourage other states to achieve the highest level of human rights, and you believe the taking of a human life is a violation of the most basic human rights, then you would say that what the tribunal is doing is setting an example as to how people should treat each other. And that murder should not be tolerated. And that killing by a state is murder, and that won't be tolerated. All it does is to encourage the cycle.

You often say there's a link between America's struggle for civil rights and the current battle for international human rights. What do you mean by that?

I went to law school to be a civil rights lawyer in the turbulent '60s. That's what I wanted to be, and I was fortunate enough to do it. I believe that the rule of law is what allows us to live with each other without destroying each other -- either physically, through violence, or by preventing someone from fully participating as a citizen. The way to bring about inclusion, the way to vindicate these wrongs, is through law.

Being a minority, I know that's the only way it can be done. You can't snatch power from someone. You can't snatch rights. Before the Civil Rights Act of 1964, there were sit-ins, but you couldn't demand to be served a cup of coffee or to stay in a place of public accommodation.

The alternative is to bring that about through violence. To go down there and do what? Kill someone? Bomb or destroy the whole hotel? That's not an answer. I say it's not an answer. (She laughs.) And I'm laughing about it, but you know what? You think about it, there's a whole world out there of many groups who believe that's the answer.

We, in the United States, should be very proud that we have this history of the rule of law. Thurgood Marshall himself believed, he was the advocate: Let's use the Constitution, let's use this structure that we have to gain our rights.

Pub Date: 2/11/99

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