(Exclusively for the use of the media. Not an official document)
Address by his Excellency, Judge Claude Jorda, President of the ICTY, to the UN Security Council
Please find below the full text of President Jorda’s address to the UN Security Council on 29 October 2002.
Mr. President, Excellencies, Members of the Security Council,
It is a great honour for me to be able to present the ninth annual report of the International Criminal Tribunal for the Former Yugoslavia.
I first wish to express my profound gratitude to you for the unfailing support you have always lent to the International Tribunal.
As you know, the annual report contains a comprehensive account of the activities of the Chambers, the Office of the Prosecutor and the Registry in the year under consideration. Aware as I am how precious your time is, I shall touch upon this subject only briefly.
I would prefer to draw your attention more particularly to two main areas of concern for the International Tribunal. The first of these is the implementation of the strategy for referring cases to the national courts and the second is the co-operation between the International Tribunal and the States of the former Yugoslavia. The reason I emphasise these two points is that they govern how soon our mission will be accomplished. As I underscored on 23 July this year when I presented the Report on the Judicial Status of the International Tribunal and the Prospects for Referring Certain Cases to National Courts, we will be able to honour our commitments towards the international community - namely to complete investigations by around 2004 and trials by about 2008 - only if the high-ranking political, military and civilian leaders are arrested and brought before the International Tribunal without delay and if the intermediary and low-level accused are tried in the national courts.
1. Account of the International Tribunal’s activities in 2001 - 2002
In the ninth annual report of the International Tribunal, you will find a breakdown of the work and reforms carried out between 1 August 2001 and 31 July 2002. Three aspects of the work and reforms especially marked the period and deserve to be brought to your attention.
a - The work of the Trial Chambers, which has increased considerably in the past year, must be further rationalised.
Following the arrival of the nine ad litem judges in January 2002, the Trial Chambers have, in keeping with our commitment, heard six simultaneous trials on a daily basis instead of three as in previous years. They dealt with approximately 30 cases and pronounced five judgements on the merits, involving a total of 12 accused. Yet, in my opinion, despite all of the reform work undertaken in previous years, notably to bolster a judge’s powers of control over the hearings, the proceedings are still taking too long. The trials are currently lasting an average of 17 months, which is to say, five months longer than we had initially estimated. With a view to rectifying this problem, the International Tribunal took the initiative this January of compiling a monthly statistical overview of its activities which it measures using several specific parameters. This monthly overview, called the International Tribunal’s Table of Indicators, makes it possible for us to pinpoint the problems that arise in proceedings and take the necessary measures, particularly as regards improving judicial practices. This involves encouraging the joinder of related cases, making more frequent use of written evidence and restricting the witnesses testifying at trial to a number representative of all the crimes charged in the indictments.
b - The establishment of an international bar in The Hague should reinforce the effectiveness and independence of counsels’ work.
At the plenary session of 11 and 12 July this year, the judges approved the establishment of an international association of counsel pleading before the International Tribunal. It was essential that counsel be able to come together within an organisation set up to represent and defend their interests and vital that their independence be fully guaranteed and the code of professional conduct respected. It was also important to provide defence counsel with all the means necessary for following developments in international case-law as closely as possible. With the setting up of the association, this has now been achieved. The effectiveness of the International Tribunal’s work should also be improved by the greater discipline to be demonstrated by counsel.
c - The implementation of the structural and operational reforms of the Appeals Chambers must make it possible to reduce the length of proceedings, which still remains excessive.
In accordance with resolution 1329 (2000), two of the judges from the International Tribunal for Rwanda have been serving in the Appeals Chamber of the International Tribunal for the Former Yugoslavia since November 2001. Furthermore, the structure of the Appeals Chambers has been reorganised and their working methods have been gradually rationalised with the adoption of new practice directions. As a result, the Appeals Chamber of the International Tribunal for the Former Yugoslavia was able to examine approximately twenty interlocutory appeals and eight appeals on the merits during the period under consideration. That said, efforts are still being made to reduce the average length of appeals proceedings.
I would now like to turn to the two main areas of concern for the International Tribunal.
2. Implementation of the referral strategy
The Prosecutor, Registrar and I set out a detailed presentation on this strategy in the report which we prepared in the first half of this year and which was sent to you in July. May I recall that the strategy focuses on two main areas: first, the prosecution of those perpetrators whose crimes most seriously violated international public order as a priority at the International Tribunal and, second, the turning over of cases of lesser importance to the Chamber with jurisdiction over violations of international humanitarian law at the State Court of Bosnia and Herzegovina.
On 23 July 2002, Mrs Del Ponte and I set out to you the different aspects of the strategy as well as the stakes involved. Following the presentation, your President indicated in a statement that "the ICTY should concentrate its work on the prosecution and trial of the civilian, military and paramilitary leaders suspected of being responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, rather than on minor actors". He also "endorseSdC the report’s broad strategy" and took "note of the intention of the ICTY to amend its Rules of Procedure and Evidence in order to facilitate the referral of cases to competent national jurisdictions". For this, I am extremely grateful to him.
Since then, we have endeavoured to draw upon all aspects of the statement. From this perspective, we have embarked upon several important courses of action. On 17 September, I met with the members of the Bureau and examined with them the cases which could already be referred to the national courts. Our first estimates suggest that of the cases already assigned to the Chambers (that is to say, in which the accused have been arrested and brought before the International Tribunal), approximately ten could be referred in the coming months, provided, of course, that we are given firm guarantees that a Chamber with jurisdiction over violations of international humanitarian law will be set up in the near future. We have also studied the judicial consequences of implementing our strategy, especially as regards how to deal with the accused in custody in The Hague who could be referred to Bosnia and Herzegovina. On 30 September, the Judges held an extraordinary plenary session and amended Rule 11 bis of the Rules, which will now allow them to set in motion a truly effective referral process. Lastly, on 17 October, the Prosecutor, Registrar and I met with members of the Office of the High Representative in order to examine how, on what conditions and, above all, within what time-frames, the Chamber with jurisdiction over violations of humanitarian law would be established at the State Court of Bosnia and Herzegovina. I shall return to this later.
Mrs. Del Ponte continued her assessment, begun early this year, of the ongoing investigations in order to determine the number of persons who should be tried by the International Tribunal and those who could be tried in the national courts. She will share her new estimates with you in a moment.
I must emphasise, however, that our work is dependent on the establishment of a Chamber within the State Court of Bosnia and Herzegovina with jurisdiction over violations of international humanitarian law. In fact, we cannot refer cases without the assurance that they will be tried in accordance with the minimum standards for the protection of human rights. In this respect, we are aware of the responsibilities you have vested in us and of our duties with regard to the victims.
Nonetheless, several political, legal and financial obstacles still need to be overcome before this specialised Chamber may be set up.
Admittedly, the priority of the High Representative for Bosnia and Herzegovina appears to be the fight against organised crime and corruption and the economic reconstruction and political stabilisation of the State. Furthermore, we are aware of the fact that the establishment of a specialised Chamber requires a financial contribution from the international community which is also faced with other very important challenges, notably the eradication of international terrorism.
Need I remind you, however, that until all the war criminals have been tried, there can be no deep-rooted or lasting peace in the former Yugoslavia? History teaches us that as long as the work of justice remains unaccomplished, the spectre of war can reappear, sometimes even several generations later.
For this reason it is essential for all those involved in the peace process to contribute, each in their own area, to the establishment of this specialised Chamber. I have duly noted the recent assurance of the Office of the High Representative that it will take the necessary political and legal measures for the Chamber to be operational by late 2003. It remains for the international community to provide this Chamber with the necessary operational means. Those means should not be too costly. May I recall that at stake is not the creation of a "mini-international tribunal" in Sarajevo! As I proposed on 23 July last, the issue is rather that of using a national court already in place whose operational rules and organisation would fall within the competence of the High Representative (and the national authorities concerned). It would be provisionally granted a minimum international character for the sole purpose of ensuring its impartiality and independence. Indeed, only international judges would be appointed on a provisional basis to work alongside the local judges. It is not, therefore, a matter of setting up an administration composed of international civil servants, as at the International Tribunal.
In this regard, I wish to underline that the International Tribunal undertook to collaborate with the Office of the High Representative in drafting the texts which will govern the operation of this institution.
3. Co-operation between the International Tribunal and the States of the former Yugoslavia
The States of the former Yugoslavia must arrest all the accused in their territory as soon as possible so that the International Tribunal may concentrate more fully on the prosecution and trial of the main political, military and civilian leaders. Only in this way - and this way alone - will we be able to accomplish our mandate within the envisaged time-frame.
However, the Federal Republic of Yugoslavia is co-operating at best only partially, and that is a euphemism, in the gathering of evidence and arrest of the accused, even though some of them have already been indicted for several years. In particular, I have in mind Ratko Mladic, indicted on 24 July 1995, that is more than seven years ago! Some of the accused even continue to hold political office at the highest level of the state apparatus. Thus, Milan Milutinovic, although indicted since 22 May 1999, is still President of Serbia. Moreover, the Federal Republic of Yugoslavia adopted a law on co-operation with the International Tribunal, Article 39 of which explicitly violates the basic provisions of our Statute and, in particular, the principle of primacy guaranteed under Article 9 of the Statute.
On 23 October last, at the request of the Prosecutor, I officially referred to you the matter of this State’s failure to comply with its obligations under Article 29 of the Statute because I considered that the international community should be informed of this failure now that it is being called upon, within other organisations, to take decisions crucial for this country’s future. In my opinion, it would in fact send the wrong signal to the States if the Federal Republic of Yugoslavia were allowed to reassume fully its position in the community of nations even though it is not carrying out its most basic international obligations, obligations which, may I recall, stem from the Charter of the United Nations. I understand that this issue has been raised too recently to appear on the agenda. For this reason, the Prosecutor and I are prepared to address the matter whenever you deem appropriate.
The Republic of Croatia has been demonstrating an ambiguous attitude. Although more inclined than before to transmit the evidence in its possession and open its archives to the investigators of the International Tribunal, it still has not arrested, in spite of the Prosecutor’s continual requests, generals Ante Gotovina and Janko Bobetko, indicted on 26 July 2001 and 23 August 2002 respectively. Should this situation continue, I would not hesitate to refer this matter to you, as I have just done with the Federal Republic of Yugoslavia.
As regards Bosnia and Herzegovina, whereas the Federation is co-operating in a satisfactory manner with the International Tribunal, Republika Srpska has not arrested any high-ranking fugitive residing in its territory, including Radovan Karadzic, indicted since 24 July 1995. Admittedly, the institutional framework of Bosnia and Herzegovina does not make its task any easier. Yet how much longer can the International Tribunal allow an entity to so disregard international commitments which overridingly bind the State of which it forms a part?
Mr. President, Excellencies, Members of the Security Council,
It appears to me that the particular situations which I have just described demonstrate how important the support of the Security Council remains for the fulfilment of the International Tribunal’s mission.
That support has always been given to us and once again I would like to express my gratitude to you.
Today I need your help more than ever! Time is passing: the 2004 and 2008 deadlines are rapidly approaching. For this reason, the Prosecutor and I have used all means to implement as soon as possible the strategy which you so fully supported. We have thus assumed all our responsibilities and shall continue to do so.
Now, more than ever, there is a need for the high-ranking political, military and civilian leaders to be arrested without delay and for the State Court of Bosnia and Herzegovina to be established before the end of 2003, failing which it will not be possible to respect the deadlines. These are matters to be dealt with by the international community and not by the International Tribunal. We hope that all the necessary decisions will be taken at that level.
It is on these conditions and these conditions alone that the International Tribunal will be able to envisage the completion of its mission with the assurance of having made its contribution to the re-establishment of peace in the former Yugoslavia.
Thank you for your attention.
International Criminal Tribunal for the former Yugoslavia
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