(Exclusively for the use of the media. Not an official document)
Address by his excellency, Judge Claude Jorda, President of the International
Criminal Tribunal for the former Yugoslavia, to the United Nations Security Council
Mr. President, Excellencies, Ladies and Gentlemen,
I am acutely aware of the honour you are bestowing on me by providing me with the opportunity to present the report of the International Tribunal on its judicial status and the prospects for referring certain cases to national courts, which the Secretary-General transmitted to you last June. I am especially grateful to you for this.
The report is the product of reflection between the Prosecutor, Mrs. Carla Del Ponte, the Registrar, Mr. Hans Holthuis, and me. This reflection is the continuation of the programme of action of which the Prosecutor and I informed you last November and whose ultimate objective is to enable the International Tribunal to accomplish its mission in the most timely manner. This objective will be achieved only if we succeed in focussing the International Tribunal’s mission more on the prosecution and trial of the highest-ranking political, military, paramilitary and civilian leaders and in referring certain cases to national courts, beginning with those of Bosnia and Herzegovina.
We consider that the moment has now arrived to hear your opinion on this strategy and on the mechanism for its application so that the measures necessary for its implementation are taken as soon as possible. As you know, your support is essential for us to achieve this objective.
1 - Action undertaken from January to July 2002
We have already taken several important measures. In early January 2002, we set up a working group to prepare a report on the problems arising from the referral of certain cases to national courts and the appropriate solutions to those problems. At an extraordinary plenary session on 23 April 2002, we presented the report to all the Judges, who supported the major directions set out therein. On 25 April 2002, we met with the group of experts mandated by the High Representative for Bosnia and Herzegovina to obtain an initial evaluation of the judicial status of that country. From 17 to 21 June 2002, we visited Bosnia and Herzegovina to meet with political representatives of the State, the Federation and Republika Srpska, with judges, prosecutors and the High Representative. The visit allowed us to determine better the difficulties which the national courts are facing in trying war crimes and crimes against humanity. On 27 June 2002, we invited the diplomats posted in The Hague to a diplomatic seminar to inform them of the International Tribunal’s general situation and the prospects for referring cases. At the plenary session on 11 and 12 July 2002, the Judges discussed the judicial consequences of the Prosecutor’s penal policy.
After this brief overview of the activity undertaken since January 2002, I would now like to set out for you the principal challenges of the referral strategy.
2 - Principal challenges: delivering justice within a reasonable time-limit
It is of primary importance that we carry out the two main components of our strategy as soon as possible, that is, I repeat, to prosecute as a priority before the International Tribunal, those presumed responsible for crimes which most seriously violate international public order and to give certain cases of lesser significance to the national courts. In fact, this is the only way we will be able to honour the commitments we made to you last November, that is to close the investigations around 2004 and finish the first instance trials around 2008. I emphasise that we must respect these deadlines. At issue is the right of each accused to be tried as soon as possible and not to spend an unreasonable length of time in pre-trial detention. In this regard, I remind you that at the moment, certain accused will not be tried within the next two years, a time-limit which will only increase if our strategy is not implemented swiftly. At issue also is the reliability of the testimony, which with time becomes increasingly inaccurate. We should not lose sight of the fact that some of the crimes already date back 10 years. More fundamentally, however, the credibility of the Tribunal’s action is at stake: if we do not act promptly, more and more voices will be heard in favour of "reconciliation for the occasion". We all know, however, that this type of reconciliation rests on a fragile and consequently ephemeral foundation. Only justice can guarantee a deep-rooted and lasting peace in the former Yugoslavia. Moreover, this is the meaning of the mandate you gave to us which is in keeping with Chapter VII of the United Nations Charter.
3 - Major directions: refocusing the International Tribunal’s action and referring certain cases
As I mentioned a moment ago, our strategy relates firstly to the International Tribunal’s penal policy. This policy falls under the responsibility of Mrs. Del Ponte. However, the President and the Judges cannot not take an interest in its judicial consequences. In this respect, I wish to speak for the Judges who have recently shown concern at these consequences, in particular, the fact that pre-trial detention is becoming longer. Moreover, as you indicated in the preamble of resolution 1329 of 30 November 2000, the Judges wished to recall that their mission was to try "civilian, military and paramilitary leaders S…C in preference to minor actors". This is all the more true given that, in view of the high positions they held and the very serious crimes ascribed to them, those individuals, above all others, destabilise the international peace and security of which you made us one of the guarantors. With this in mind, the Judges would appreciate your formally recalling that their mandate is to try, as a priority, the perpetrators of the crimes which most seriously violate international public order, that is the highest-ranking political, military, paramilitary and civilian leaders.
This being the case, the Prosecutor – whose role moreover it is to do so – reviewed the investigations underway to determine the number of persons who should be tried by the International Tribunal and those who should be tried on the national level. She estimates that of the approximately one hundred individuals to be indicted by 2004, 50 might be tried by the courts of Bosnia and Herzegovina. A number of persons already indicted by the International Tribunal who might already be referred to the national courts of that country must be added to this figure. Mrs. Del Ponte considers that these are principally intermediary-level accused hierarchically falling between the main leaders indicted and tried by the International Tribunal and the minor actors indicted and tried by the national courts. In this regard, I note that the Rome Agreement of 18 February 1996 establishes a procedure for the courts of Bosnia and Herzegovina to prosecute and try individuals, once they have been authorised to do so by the International Tribunal.
To come to a close on this matter, I ask you to exert all your influence with the member States, and more particularly those issuing from the former Yugoslavia, so that they arrest the accused in their territory, in particular the high-ranking political and military leaders, and transfer them to the International Tribunal along with all the evidence in their possession. This way – and this way alone – will we be able to fulfil our mandate in the time-limits envisaged.
4 – Concrete measures to be taken: amending the Rules and establishing within the State Court of Bosnia and Herzegovina a Chamber with jurisdiction over war crimes
Prior to implementing a referral process, we must be sure that the Statute does indeed mandate us to take all the measures necessary to this end. At the extraordinary plenary session of 23 April 2002, the Judges observed that the Statute contained some ambiguities regarding the extent of the International Tribunal’s powers to refer cases to national courts. As the texts now stand, it is not certain that the International Tribunal is authorised to implement a referral process whose scope extends beyond that currently provided for by Rule 11 bis of the Rules of Procedure and Evidence. As you will have read in our report, for the process to be truly effective the International Tribunal must be able to refer cases involving accused not yet in its custody. Moreover, it must be possible to refer cases to the courts of the States in which the accused were arrested and those in which they allegedly committed their crimes. The International Tribunal should be authorised to ensure that the accused answer before the national courts for all of the crimes in the Prosecutor’s indictments, that the victims and witnesses are duly protected and, in broader terms, that the national trials are conducted in accordance with the international norms regarding the protection of human rights.
From this perspective, we personally sought to verify that the courts of Bosnia and Herzegovina already have the means required for taking on the trials of war criminals whilst respecting the major principles of international humanitarian law and the protection of human rights.
This is why, as I stated at the start of my address, the Prosecutor and I visited Bosnia and Herzegovina. We observed that, despite the gradual re-establishment of democratic institutions and the return to peace in the country, the local courts are still faced with significant structural difficulties. These arise mainly from the excessive compartmentalisation of the judicial systems of the Federation and Republika Srpska, the lack of co-operation between the two entities, the political influence brought to bear on judges and prosecutors, the often "mono-ethnic" composition of the local courts, the difficulty of protecting the victims and witnesses effectively, the court personnel’s lack of training and the backlog of cases at the courts. In this respect, may I remind you that the report of the United Nations Secretary-General of 18 June 2002, which you have read, reaches this same conclusion.
Admittedly, the Office of the High Representative has embarked upon far-reaching reforms of the judicial system. However, it will not be possible to complete this process for several years and the International Tribunal would be in a position to refer certain cases as early as 2003. A transitory solution must therefore be found.
The solution we believe best adapted to the situation and advocated by the High Representative consists of establishing within the State Court of Bosnia and Herzegovina a Chamber with special jurisdiction to try serious violations of international humanitarian law. Aside from meaning that the International Tribunal could be relieved of a part of its case-load, this solution would guarantee that international humanitarian law was applied uniformly at the state level and address the issue of the separation of the two entities’ judicial system. It would also obviate the need to set up an additional court in the already extremely complex judicial landscape of Bosnia and Herzegovina, whilst supporting the State’s own efforts to rebuild itself.
I wish to underscore that this plan is supported by the members of the Presidency of Bosnia and Herzegovina.
Yet, let there be no confusion: at issue is not the establishment of a "mini-international tribunal" in Sarajevo! This would not make sense and would be a serious financial burden upon the international community. As we see it, this instead means using a national court already in place and provisionally according it a minimal international character in order to guarantee its impartiality and independence. In practical terms, a limited number of key posts would be set aside for international judges for a restricted time. In so doing, we would avoid recruiting a large number of international civil servants as is the case at the International Tribunal. Moreover, with the court sitting in Sarajevo, the extremely high witness-travel costs would be reduced to the minimum. We believe that the applicable procedure should be the one in force in Bosnia and Herzegovina and not an international procedure which, albeit adapted to the specific context of punishing international crimes, would be complex as it would constitute an amalgam of the civil and common law traditions. Additionally, the local judges and prosecutors, most staff members, defence counsel and the accused will find it especially easy to use the "local" procedure as they are already familiar with it, and will not require related training. The trials of individuals accused of war crimes would be more in keeping with the legal traditions of Bosnia and Herzegovina and completed more rapidly.
The jurisdiction of the State Court should be circumscribed in order to prevent it from being rapidly overwhelmed by the vast number of war crimes cases yet to be tried in Bosnia and Herzegovina. To the number of intermediary-level accused who might be referred by the International Tribunal we must add the very high number of subordinates to be tried in accordance with the Rome Agreement. For this reason, we recommend that the State Court handle only the cases referred by the International Tribunal and certain others which normally fall within the province of the local courts but whose sensitive nature requires that they be tried at the state level. Furthermore, the State Court could be made responsible for ensuring that proceedings in local courts respect the most fundamental guarantees of the criminal trial.
Furthermore, it is essential to work with the existing organs and judicial institutions – if only by assisting them – since they constitute essential reference points for all citizens. As such, it is our opinion that the local courts should continue to be involved in prosecuting and trying low-ranking war criminals, as is currently the case in accordance with the Rome Agreement. This notwithstanding, in order to enhance the effectiveness of the Agreement and guarantee the impartiality of the local courts, it might be appropriate to authorise international observers from organisations on the ground to oversee the proper conduct of the proceedings before such courts or, as the High Representative proposes, to restructure them into a small number of "multi-ethnic" regional courts.
5 – New three-tier judicial architecture
I am proposing a three-tier judicial architecture. The first tier, the International Tribunal, essentially handles the major political, military, paramilitary and civilian leaders. Naturally, this first tier is temporary as it must disappear once the International Tribunal’s mission has been accomplished. The second tier, the State Court, chiefly handles intermediary-level accused who would be referred by the International Tribunal. From our point of view, the Court is conceived as a national institution accorded a limited and provisional international character in order to guarantee its impartiality. The third tier, the local courts, handles low-ranking accused tried in accordance with the Rome Agreement. Within this structure, the International Tribunal would be responsible for overseeing the proper conduct of the second-tier trials and the State Court the third-tier trials.
This architecture follows a logical guideline which, I believe, could steer the action of the international community. It consists of gradually adapting the configuration of the judicial system to the political situation in the country at issue and to the democratic changes it is experiencing. The idea being upheld is that whereby justice must be brought steadily closer to the people. For this reason, in the case of Bosnia and Herzegovina, we must progress slowly from an international judicial structure located abroad to a centralised State Court sitting in Sarajevo with provisionally assigned international judges in order to arrive at classic judicial institutions once political stability has been fully restored.
In conclusion, I ask you to endorse the major directions I have just set out. In practical terms, I propose your formally recalling that the mandate of the International Tribunal is to try, as a priority, the highest-ranking political, military, paramilitary and civilian leaders and not the low-ranking subordinates. I also ask that you authorise us to make the necessary changes to our Rules as required for this referral strategy. Finally, I invite you to provide active support for the plan formulated by the High Representative to set up as early as practicable within the State Court of Bosnia and Herzegovina a chamber with jurisdiction over serious violations of international humanitarian law and to give to it all the resources it needs to operate.
Only by pursuing this strategy will we be able to refer cases to the national courts effectively, complete our work within a reasonable timeframe and contribute still further to reconciling the peoples of the former Yugoslavia.
I thank you for your attention and express appreciation, on behalf of the International Tribunal, for the staunch support you have always provided to us.
Following President Jorda’s address to the Security Council, a statement was issued on behalf of the President of the Security Council in which he stated:
"The Council recognises, as it has done on other occasions (for example in its resolution 1329 (2000) of 30 November 2000), 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.
The Security Council therefore endorses the report’s broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions as likely to be in practice the best way of allowing the ICTY to achieve its current objective of completing all trial activities at first instance by 2008".
International Criminal Tribunal for the former Yugoslavia
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