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Address by his Excellency, Judge Claude Jorda, President of the ICTY, to the UN General Assembly
Please find below the full text of President Jorda’s address to the UN General Assembly on 28 October 2002
Mr. President, Excellencies, Ladies and Gentlemen,
It is a great honour for me to address this distinguished Assembly once again, as I present the ninth annual report of the International Criminal Tribunal for the former Yugoslavia.
Allow me first of all to express my profound gratitude for the support you have always afforded our institution.
When I had the honour of presenting the eighth annual report of the International Tribunal to your Assembly last year, I shared with you in particular my concerns regarding the need to adapt the achievement of the International Tribunal’s mission to the political changes in the former Yugoslavia. In fact, I shared some thoughts with you on the future priorities of the judicial institution over which I preside, describing in particular the need to direct the Tribunal’s activity more towards the prosecution of crimes which constitute the most serious breaches of international public order, and setting out new ways in which to promote the trial of certain cases by courts in the States of the former Yugoslavia.
This process of reflection, initiated in 2000-2001, has since then brought about a vast movement of reform, the foundations and main characteristics of which I will attempt to present to you at a later stage. For the moment, I will just say that 2001-2002 will have been marked not only by the effective implementation of the structural changes adopted in 2000 but also, and more particularly, by the setting out of a plan of action identifying the future directions of the International Tribunal.
The drafting of a plan of action setting out the future directions of the Tribunal is one outcome of an overall process of reflection, undertaken by the Tribunal in early 2000, on its judicial status and the means by which to accomplish its mission in the shortest possible time. I take the liberty of reminding you that, in January 2000, the Tribunal began a large-scale reform of its structure and operation resulting, inter alia, in the adoption on 30 November 2000 of resolution 1329 (2000) in which the Security Council approved the creation of a pool of ad litem Judges and the appointment of two additional Judges to the Appeals Chamber. The aim of these reforms was to implement practical and flexible solutions which would allow the Judges to deal with a considerable increase in their workload and thus respond more effectively to the needs of the accused and the expectations of the victims.
Today I will attempt to provide you with a report on the Tribunal’s activity and the main aspects of this plan of action:
I would remind you that the Tribunal is seeing a considerable increase in its activity at this time. I note, in fact, that, in accordance with the commitments it made to the Security Council, the Tribunal is carrying out all the necessary reforms to complete investigations by 2004 and first instance trials by around 2008.
I would also like to emphasise that, despite the increase in its activity, the Tribunal cannot try on its own all those accused of war crimes and crimes against humanity. At any rate, were it to do so, it could not honour its commitments to the Security Council. The Tribunal, therefore, had to implement an appropriate and realistic strategy which would allow those presumed responsible for crimes constituting the most serious breaches of international public order to be prosecuted as a priority, and to transfer certain less important cases to the national courts. I will attempt to set out the main directions of this strategy, recently endorsed by the United Nations Security Council.
I wish to add, however, that the implementation of the plan is far from being accomplished, particularly in that it does not depend solely on the International Tribunal and includes a margin of uncertainty which should not be overlooked. In this respect, I will set out my main concerns regarding the effective implementation of the strategy adopted.
1. The Tribunal has succeeded in honouring the commitments it made to the Security Council and has adopted specific measures with a view to improving the overall functioning of the institution
The Tribunal is today functioning at full capacity. It is honouring the commitments it made to the United Nations Security Council and is currently holding six simultaneous trials daily, as opposed to three in previous years. There is a total of 25 Judges at the Tribunal. In 2001-2002, nine ad litem Judges were appointed by the United Nations Secretary-General and served alongside the permanent Judges in specific cases. Consequently, the number of trials has increased significantly. This increased activity has led to a significant rise in the number of decisions rendered. In fact, in the past year, the Trial Chambers examined over twenty cases and rendered five judgements on the merits.
In November 2001, pursuant to Security Council resolution 1329 (2000), two additional Judges from the International Criminal Tribunal for Rwanda joined the Appeals Chamber of the Tribunal for the former Yugoslavia. This Appeals Chamber also saw a very significant increase in its workload, mainly on account of reforms implemented at trial stage. In 2001-2002, it pronounced 20 or so interlocutory decisions, two appeals on the merits and ruled on two review applications. In order to deal with the increase in the number of cases in appeal and with a view to improving the organisation of the Chamber, the Judges of the Tribunal undertook a reform of the appeal structure which resulted, inter alia, in amendments to the Rules of Procedure and Evidence, the adoption of Practice Directions and the strengthening of structural ties with the Appeals Chamber of the International Criminal Tribunal for Rwanda. The closer collaboration between the Registrars of the two International Tribunals made it possible to find a solution to the excessive compartmentalisation of the Appeals Chambers of both institutions.
Moreover, a reform was adopted which sought to establish an international bar for defence counsel and to amend the Code of Professional Ethics. Defence counsel will now be able to come together within an association which will ensure respect for their independence and professional ethics and provide them with training in international humanitarian law. I have lent my full support to the establishment of an international bar which will make it possible to ensure improved training for defence counsel and, consequently, increase the efficiency of the Tribunal’s functioning.
At the same time, this generally positive report should not conceal the difficulties encountered, particularly concerning the length of trials. The rate at which the Tribunal tries its accused is still too slow. Need I remind you that, as matters stand, some of the accused will not be tried within the next two years, a period which will only increase if no effective measure is taken to expedite proceedings!
The Tribunal must therefore continue striving to ensure that first instance and appeal proceedings are not subject to excessive delays. With this objective, the Judges decided at the extraordinary plenary session on 30 September 2002 to make new improvements to the judicial practices in force at the Tribunal. A working group set up for this purpose is to submit its conclusions to all the Judges as soon as possible.
This being so, the Tribunal is aware that as matters now stand, the reforms undertaken will not on their own suffice for it to honour its commitments to you and the Security Council. For this reason it was necessary to reflect on a plan for the future activities of the Tribunal anticipating, in particular, and as I described last year, the possibility of referring a certain number of cases to the courts of the States of the former Yugoslavia. I will now attempt to set out for you the main characteristics of this plan.
2. The Tribunal has also had to define the future directions of its activity which have been endorsed by the Security Council
The proposal for the future directions of the International Tribunal involved firstly a series of steps which the Prosecutor, the Registrar of the Tribunal and I initiated jointly. In January 2002, we created a working group responsible for reflecting on the problems inherent in the implementation of a possible referral process of certain cases to the national courts of the States of the former Yugoslavia. The Prosecutor, the Registrar and I drafted a "Report on the judicial status of the International Criminal Tribunal for the former Yugoslavia and the prospects for referring certain cases to national courts". This reflection also benefited from a certain number of meetings, in particular with the group of experts mandated by the High Representative for Bosnia and Herzegovina, political representatives from the State, the Federation and Republika Srpska, judges and prosecutors and the High Representative. Ultimately, at the plenary session of 11 and 12 July 2002, the Judges discussed the judicial consequences of the Prosecutor’s penal policy.
This action led the Tribunal to consider the following strategy:
It should be recalled that this strategy is based on the principle that the commitments made to the Security Council, that is to conclude the investigations by around 2004 and first instance trials by around 2008, must be honoured. The issue here, in fact, is the right of every accused to be tried as soon as possible without spending an unreasonable length of time in pre-trial detention. One should also keep in mind the issue of the reliability of testimony whose precision fades as the years pass and, generally, that of the credibility of the International Tribunal which risks being diminished by the slowness of the proceedings.
This strategy comprises two main aspects: to realign Tribunal activity on the trial of the highest-ranking military, paramilitary and civilian leaders responsible for war crimes and crimes against humanity and to refer certain cases of lesser importance to the national courts. In July 2002, having reviewed the ongoing investigations, the Prosecutor of the Tribunal considered that a certain number of accused could, in fact, be tried by the courts of Bosnia and Herzegovina.
On 23 July 2002, I had the honour of presenting the aforesaid directions to the Security Council. I wished to ascertain, on behalf of the Judges of the Tribunal, that we were, in fact, duly mandated by the Statute before undertaking all the measures necessary to implement the referral process. Following this discussion, the President of the Security Council issued a Declaration on behalf of the Council "endorsSingC the report’s broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions as the best way of allowing the Tribunal to achieve its current objective of completing all trial activities at first instance by 2008".
The Security Council also "invited States and relevant international and regional organisations to contribute as appropriate to the strengthening of national judicial systems of the States of the former Yugoslavia to facilitate the implementation of that policy".
The essential question remains as to how the reform may be effectively implemented.
3. The Tribunal must ensure that the strategy adopted will be implemented effectively
It bears emphasising that this goal does not depend solely upon the work of the International Tribunal. Since the strategy seeks amongst other things to refer a number of cases to the domestic courts, it involves a large number of players on both the international and national scene. Allow me to elaborate:
First, the International Tribunal
Several steps have been undertaken since the Statement of the President of the Security Council was adopted.
At an extraordinary plenary session on 30 September 2002, the Judges created provisions allowing for the referral of certain cases to the national courts by amending Rule 11 bis of the Rules of Procedure and Evidence. I then met the Presiding Judges of the Trial Chambers and examined with them the cases which could already be referred to the national courts. The Prosecutor of the Tribunal continued the evaluation she began at the outset of the year in respect of the ongoing investigations in order to determine how many individuals should be tried by the International Tribunal and how many by the national courts.
Nonetheless, the referral of certain cases will be possible only if the national courts have all of the resources required for trying the war criminals. To this end, we must be sure that the judicial structures are in place and that they are indeed functioning, and this is where all of the actors on the local level must also play their part.
Next, the competent authorities on the national level
I wish to remind you that the Prosecutor believes that, for the time being, only courts in Bosnia and Herzegovina should be involved in the referral of cases. That said, whilst we were in Bosnia and Herzegovina, the Prosecutor and I observed that, despite the return to peace and the gradual re-establishment of democratic institutions in the country, the local courts were faced with substantial structural difficulties. Moreover, it will take several years before the far-reaching efforts undertaken by the Office of the High Representative to reform the State’s judicial system can be completed.
In order to enable the Tribunal to implement its programme at the earliest possible opportunity, by which I mean, to commence the referral of certain cases in 2003, an interim solution has been identified. This consists of establishing a chamber with special jurisdiction to try serious violations of international humanitarian law within a national court already in place - in this instance, the State Court of Bosnia and Herzegovina. So as to guarantee its impartiality and independence, the chamber would be provisionally composed of international judges who would assist the local judges. This solution has many advantages. Furthermore, it was advocated by the High Representative and is supported by the members of the presidency of Bosnia and Herzegovina.
It goes without saying that in order to set in place the specialised chamber, concerted action is required on the part of all of the competent authorities in Bosnia and Herzegovina. They are: the High Representative for Bosnia and Herzegovina, who must already bear the heavy responsibility of fighting organised crime and stabilising the country’s economy, the local judicial authorities, who are the primary players, and also the international community, whose financial support is vital.
The Tribunal is aware that this is not a simple undertaking. Nevertheless, such concerted action is the sine qua non for the effective implementation of the referral process and, as such, for the accomplishment of our mandate within the prescribed time-frames. Very recently, the Office of the High Representative confirmed to me that the goal of establishing the specialised chamber by 2003 was still on track provided, inter alia, that the necessary financial support was forthcoming. Backing must therefore be given to the setting up of a specialised chamber with jurisdiction over violations of international humanitarian law at the State Court and all of the resources which the chamber requires in order to operate effectively must be provided. Need I remind you that at issue is the establishment of a deep-rooted and lasting peace in the former Yugoslavia, which, as you are aware, will become a reality only once the war criminals have been tried? In any event, such is the meaning of the International Tribunal’s mission which falls within the scope of Chapter VII of the Charter of the United Nations.
Finally, the international community
To conclude, I would like to recall that the Tribunal will not be able to accomplish its mandate within the anticipated time-frames unless the Member States, and especially those created out of the former Yugoslavia, arrest and bring before the International Tribunal the accused in their territory and hand over all of the evidence in their possession. As I indicated previously, the Tribunal has taken all of the measures necessary for the practical implementation of its programme of action. However, for the Tribunal to be able to concentrate its work on the prosecution and trial of the main political, military and civilian leaders, the States of the former Yugoslavia must also actively participate in their arrest and transfer to The Hague as it is in this way - and this way alone - that we will be able to accomplish our mandate within the anticipated time-frames. The co-operation of the States is therefore essential and remains one of my major concerns. Henceforth, and like my predecessors before me, I will not hesitate to refer to the competent authorities a State’s failure to meet its international obligations. Furthermore, I have just done so very recently.
As the Tribunal is about to enter into its tenth year of existence in 2003, we must examine the results of this institution’s activities more than ever, and do so uncompromisingly. Today, I have endeavoured to demonstrate to you that international criminal justice is possible. Yet, for such justice to flourish, it is also important to underscore the vital character of the collective action that must be taken by the international community, which you represent here, whilst never forgetting the voice of the victims and the ultimate goal of reconciliation among the peoples.
International Criminal Tribunal for the former Yugoslavia
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