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Address of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations General Assembly.

(Exclusively for the use of the media. Not an official document)

The Hague, 13 October 2008

Address of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations General Assembly.

Your Excellencies,


I am honoured to appear before you today for the third time as President of the International Criminal Tribunal for the Former Yugoslavia to present to the General Assembly the fifteenth Annual Report of the Tribunal. I would like to take this opportunity to convey my gratitude to the members of this distinguished Assembly for the support they have given to the Tribunal, which has been and remains essential to the completion and success of our work.

In my address today, I would like to outline the Tribunal's achievements and to highlight the significance of its legacy for the future of international criminal justice. Since 2004, the success of the Tribunal's work has been primarily assessed within the framework of the completion strategy endorsed by Security Council Resolutions 1503 and 1534. However, the completion of the cases on our docket is only part of our mission. Our main goal is to ensure that the pioneering role and substantial accomplishments of the Tribunal will continue to inspire future generations in their struggle for justice. In other words, the fight against impunity must continue to remain a priority for the international community, and toward this end, the international community must continue helping judges, prosecutors and human rights advocates, in particular in the former Yugoslavia, to entrench the rule of law by bringing to justice those responsible for international crimes.

Your Excellencies,

The Tribunal has been a resounding success in many respects. It has brought charges against 161 individuals and completed proceedings against 116 of them, issuing over two thirds of the entire body of international case law dealing with violations of international humanitarian law. It has strived to continuously improve its procedures and methodologies and has achieved unparalleled productivity. It has contributed to the exponential development and unprecedented consolidation of international criminal and humanitarian law. And, last but not least, it has brought justice to victims and helped build peace and promote reconciliation by supporting judicial institutions that conduct war crimes proceedings in the former Yugoslavia.

However, in order to fulfil its mission and ensure that these achievements are not undermined, we still need the international community's crucial support on several fronts. First, the Tribunal must be provided with all necessary means to complete its proceedings fairly and expeditiously. Second, the remaining fugitives must be arrested. And third, additional assistance must be provided to domestic partners in the region of the former Yugoslavia.

Starting with the completion of our proceedings, over the past year, we have maintained and even improved our efficiency, which remains unmatched. At this point, proceedings have started for all of the 43 remaining individuals indicted by the Office of the Prosecutor, except for the two remaining fugitives: 22 individuals are currently on trial, six are currently awaiting the delivery of their trial judgement, 10 are on appeal, and five are expecting the imminent start of their trial, including four who were only arrested in recent months. During the reporting period, the Trial Chambers issued 213 decisions on pre-trial matters in eight cases, heard five contempt cases and delivered five trial judgements. Furthermore since last October the Appeals Chamber issued 169 decisions comprising ten appeals from judgements, 43 interlocutory appeals, 90 pre-appeal decisions and 26 review, reconsideration or other decisions.

To reach such results, we have continued to identify new concrete measures to further streamline our work. For this purpose, in April, I decided to reconstitute the Working Groups on Speeding up Trials and on Speeding up Appeals. We have also ensured the simultaneous conduct of proceedings in as many as eight cases thanks to the particularly effective management of our three courtrooms, which are being used to their maximum capacity. This has also been made possible through the assignment of our ad litem judges to two or even three cases at the same time. As I have previously underscored, the contribution made by the ad litem judges has been and will continue to be critical to ensuring the completion of the cases on our docket. One important initiative I took with respect to ad litem Judges was to recommend that the Security Council adopt a resolution allowing the appointment of additional ad litem Judges above the statutory limit of 12. This resolution, which was passed in February, led to the appointment of two additional ad litem Judges above the maximum of 12, enabling us to commence two new trials.

Two other issues need your attention at this stage and will be critical to the successful completion of the cases on our docket. One concerns the pension entitlements of the permanent judges, which I already raised before you last year. I must report in this respect that the conclusions of the independent consulting firm's study - which were endorsed by the Secretariat - are fully supportive of our claim that the existing disparity between the pension benefits of the Judges of the Tribunal and the Judges of the ICJ is discriminatory and contrary to the clear provisions of our Statute. A swift resolution of this question is absolutely key and will directly impact the completion of our proceedings. At this stage, we therefore require your active support. What is likely to happen if conditions equal to those offered to the ICJ Judges are not guaranteed is indeed very clear: some Judges will have no other option than to resign so as to secure pension entitlements in their home countries. We would then lose the valued contribution of experienced judges at a critical time in the Tribunal's mandate, when our schedule demands maximum efficiency. I therefore urge your honourable assembly to address this matter speedily by supporting the recommendations made in the consulting firm's study.

Another related issue is the retention of our highly qualified staff. As the completion of the Tribunal's work draws near, members of our staff will have to seek, and many are already seeking, new career opportunities. We must ensure that staff members, who have dedicated many years of service to the Tribunal, are offered training and career counselling and that measures will be adopted to enhance their career prospects as we progressively wind down. Such measures are essential to enabling us to manage departures and keep key staff with us, staff without whom the timely completion of our cases cannot proceed.


Let me now turn to the second point for which Member State support is essential: the arrest of the remaining fugitives. As you well know, positive developments have taken place during the reporting period. The arrests of Stojan Župljanin and Radovan Karadžić were particularly important milestones, and we commend the Government of Serbia for the critical cooperation it provided in this respect. However, we cannot successfully accomplish our work if the last two remaining fugitives, Ratko Mladić and Goran Hadžić, are not arrested immediately. I must once again emphasize that while the Tribunal has done its utmost to expeditiously conduct and complete its cases, the late arrests of fugitives, for which the international community must take responsibility, will inevitably lead to slippages in the scheduled end of our proceedings. Thus, while we are ensuring that the trials of the four recently arrested accused will all start in 2009, the arrests of the remaining fugitives might oblige us to push even further our target dates for the completion of all trials.

I shall also reiterate that the obligation of all member States of the United Nations to cooperate with the Tribunal pursuant to Article 29 of the Statute are not limited to the arrest of fugitives. This obligation is in fact much wider and also entails the provision of assistance in all aspects of ongoing proceedings before the Tribunal, including access to archives, the production of documents, and access to and protection of witnesses. I must note in this respect preoccupying incidents of witness interference which have occurred during the reporting period, as well as delays in the service of documents, which have affected the expeditious conduct of our proceedings. Finally, State cooperation also entails cooperation in the relocation of witnesses and the enforcement of the Tribunal's sentences. While the Registry has managed to finalize seven agreements on enforcement of sentences, further support from States is required with respect to relocation of witnesses.


The third and final point that I would like to raise with you today is in my mind equally important. It addresses the legacy we will leave for international and domestic courts in the conduct of complex criminal cases dealing with serious violations of international humanitarian law, and in particular, the continuation of our mission by judicial institutions in the former Yugoslavia.

Allow me to recall in this respect that the Tribunal was never intended to indefinitely serve as a substitute for national courts, in particular in the region of the former Yugoslavia. Those courts have an essential role to play in ensuring that justice is served and in promoting reconciliation. Thus, our strategy for the future must not only include the completion of cases on our docket. As I mentioned before, we must also strive to secure the continuation by local actors of our mission to fight impunity. In other words, we will satisfactorily fulfil our mandate only if domestic judicial institutions are ready to take on the task we will leave behind. This strategy also makes sense from a more prosaic, cost-benefit analysis: a failure to adequately support domestic rule of law institutions will in effect diminish the impact of Member States' significant financial investments in international justice made through their contributions to the Tribunal budget. The capital invested thus far will not yield the expected return if the international community does not continue supporting our legacy projects.

As detailed in my report, during the reporting period, we have taken and supported multiple initiatives to strengthen our partnership with domestic judicial institutions and establish close communication channels with our interlocutors in the region. Following the amendments in July 2007 and February 2008 of Rule 75(H) of the Tribunal's Rules of Procedure and Evidence, which allows parties, judges, victims and witnesses to directly petition the Tribunal for variation of protective measures ordered by the Tribunal, we have handled a large number of applications from Bosnia and Herzegovina, Croatia and Serbia. To ensure expeditious processing, I established a special bench to deal with some of these applications.

In previous reports, I have emphasized the Tribunal's referral of the cases of 13 mid to low-level accused to domestic jurisdictions in the region pursuant to Rule 11 bis of our Rules of Procedure and Evidence. The referral procedure has been very successful so far, and the trials of the individuals who have been transferred are closely monitored by the Organization for Security and Cooperation in Europe on behalf of the Office of the Prosecutor. However, one must not forget that, in addition to the cases referred by the Tribunal, thousands of war crimes cases are currently pending or being investigated by domestic judicial institutions.

Therefore, the continuing support of the international community to domestic institutions remains absolutely essential to guaranteeing the lasting establishment of the rule of law. At the occasion of my visit to Bosnia and Herzegovina last May, I saw for myself the extent of the task that remains to be achieved. Cooperation between States of the region in the investigation and prosecution of alleged war criminals, such as the extradition of nationals who are alleged war criminals to another jurisdiction, remains problematic. In addition, there are still dire needs with respect to the security of detention facilities, in particular in Bosnia and Herzegovina. This was unfortunately highlighted by the escape from prison of Radovan Stanković, whose case was referred by the Tribunal to Bosnia and Herzegovina under Rule 11bis. This escape happened less than two months after being convicted of systematic rape, torture and enslavement of women and underage girls and sentenced to 20 years' imprisonment. The fact that, a year and a half later, he has not yet been apprehended is regrettable. The lack of progress made by the relevant authorities in apprehending Stanković and in prosecuting those who assisted his escape at all levels has been a cause of serious concern for the Tribunal. We cannot afford to let the valiant efforts of domestic judiciaries to strengthen the rule of law be tarnished by the inaction of the governments and local authorities. It is thus essential that the international community continue to press these authorities to address this failure. In this regard as well, I must take this opportunity to raise with you the issue of the presence of international staff in the State Court and Prosecutor's Office of Bosnia and Herzegovina. During my visit to Bosnia and Herzegovina, various actors voiced concern about the impending departure of this staff, given that their mandate is due to terminate at the end of 2009. Victims' groups, for instance, have indicated that this will have a detrimental impact on the willingness of witnesses to testify. I therefore urge the international community to support an extension of the mandates of the international members of the State Court and Prosecutor's Office of Bosnia and Herzegovina.

We have also initiated two joint projects to ensure the preservation of the Tribunal's legacy. One project, which should be completed before the end of the year, was undertaken with the assistance of the UN Interregional Crime and Justice Research Institute (UNICRI) and consists of compiling a manual of the Tribunal's best practices, which will be of great value to other international and domestic jurisdictions involved in the prosecution of war crimes cases. Another project launched in partnership with the OSCE Office for Democratic Institutions and Human Rights (ODIHR) involves assessing the impact of capacity-building efforts and identifying what remains to be done to ensure that local judiciaries have the capacity to continue the work of the Tribunal long after it completes its mandate.

Let me finally touch briefly upon ongoing discussions on residual mechanisms. As I previously reported, we submitted our final report on residual mechanisms in September 2007. Since then, we have met with the Security Council Working Group and provided several clarifications in response to the questions of Working Group members. We have also welcomed members of the Working Group to the Tribunal on 1 and 2 October. This visit gave members the opportunity to meet our judges and senior staff and gain a more practical understanding of our work, which I am sure will prove extremely helpful when determining the features of the Tribunal's residual mechanisms. With respect to the specific question of the Tribunal's archives, we just received a report from the Advisory Committee on Archives set up by the Registrars of the ICTY and the ICTR, which will be considered by the Tribunal with a view to submitting its recommendations on this question. I must in this regard take the opportunity to emphasize that, irrespective of the political decision on the physical location of the Tribunal's archives, it is of critical importance that open access to these archives be guaranteed. For this purpose, a suggested approach would be the creation of memorial centres in the main cities of the region, offering access to archives, historical information on the Tribunal's proceedings and cases, as well as interactive debates on international criminal justice and reconciliation in the former Yugoslavia. This would not only meet the primary objective of the archives project, which is easy and open access to our work by the interested public. It would also guarantee the seamless continuation of the longstanding work and achievements of the Tribunal's outreach programme, which are described in my report.

Your Excellencies,

The Tribunal's achievements would not have been possible without the vital support of the members of this Assembly. The creation of the Tribunal in 1993 heralded a new era in international affairs. It led to the establishment of many other international criminal justice institutions, which together work towards a single goal: fighting impunity and bringing justice to victims of gross violations of international law. But the Tribunal's work has also had a deep impact on domestic judiciaries, particularly in the former Yugoslavia. These judges, prosecutors and defence lawyers are the actors that will most fundamentally contribute to the lasting development of the rule of law in the region, which, 15 fifteen years ago, was still the scene of one of the most brutal conflicts of the 20th century. Once the Tribunal completes its cases, these are the people that the international community must continue to support if it truly wants to guarantee long term peace and prosperity in this part of the world. I call upon all Member States to assist us in our commitment to seeing the work of the Tribunal successfully through to the end and to provide support to the institutions in the former Yugoslavia, which will carry on our mission to fight impunity. I thank you for your attention.

International Criminal Tribunal for the former Yugoslavia

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