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Address of Judge Theodor Meron, President of the ICTY, to the UN Security Council

Press Release PRESIDENT

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

The Hague, 23 November 2004

Address of Judge Theodor Meron, President of the ICTY, to the UN Security Council

Mr. President, Excellencies, Ladies and Gentlemen,

It is a great honour to address this distinguished body in presenting the second report of the President of the International Criminal Tribunal for the former Yugoslavia pursuant to paragraph 6 of Security Council resolution 1534. You also have before you the eleventh annual report of the Tribunal (Document S/2004/627) and my letter of 23 November 2004 transmitting my assessments and those of the Prosecutor.

It is now slightly over six months since I delivered to the Council, as specified by resolution 1534, assessments by me and the Prosecutor of the Tribunal’s progress toward implementation of the Completion Strategy. I am honoured to have the opportunity once again to address you on the subject today.

Let me turn first to the docket statistics. Since its establishment, the Tribunal has completed trials in 18 cases involving 36 accused. A further 17 accused have pleaded guilty, three of whom entered pleas mid-trial. The Tribunal’s three Trial Chambers continue to operate at full capacity, handling six cases simultaneously. Currently five trials are being heard in the cases of Krajisnik, Milosevic, Limaj et al., Hadzihasanovic and Kubura, and Oric. Two other cases, Strugar and Blagojevic & Jokic are currently in the judgement writing stage, the first due to be rendered before the end of December 2004, the second in January 2005. The Brdjanin Trial Chamber rendered its judgement on 1 September 2004. The Tribunal has therefore completed or is holding in the first instance proceedings involving 60 accused in 24 trials and 15 separate guilty plea proceedings.

While many factors are important in determining the Tribunal’s ability to adhere to the schedule detailed in the Completion Strategy, several factors stand out as particularly important:

the Tribunal’s ability to refer cases to competent national jurisdictions for trial, improved cooperation with the Tribunal by States in the former Yugoslavia, and a continued focus of Tribunal resources on the most senior-level accused

First, the ability of the Tribunal to refer cases to competent national jurisdictions for trial. Transferring some of the docket out of The Hague has the potential to reduce the Tribunal’s workload in a meaningful way. Accordingly, the passage of Rule 11bis of the Tribunal’s Rules of Procedure and Evidence gave Trial Chambers the power to refer an indictment to the authorities of a State in which the crime was committed, in which the accused was arrested, or which has jurisdiction and is willing and adequately prepared to accept the case. In determining whether to refer an indictment, a Trial Chamber must consider the gravity of the crimes charged and the level of responsibility of the accused, in accordance with the Security Council’s intention that the Tribunal retain jurisdiction over the most high-level defendants and the most serious crimes. Trial Chambers may not, of course, refer cases to jurisdictions in which the accused might not be accorded a fair trial, or in which the death penalty is a possible consequence of the trial.

The Prosecutor has already begun to make motions for the transfer of cases to domestic jurisdictions under Rule 11bis. To date, she has filed 6 motions involving 10 accused, requesting that seven be transferred to the courts of Bosnia and Herzegovina, two to Croatia and one to the State Union of Serbia and Montenegro. A Trial Chamber has been tasked to review these requests for 11bis transfer and when it ultimately deems some or all of these requests to be appropriate, the resulting transfers will be of real assistance in keeping the Tribunal on schedule for compliance with the Completion Strategy.

Using the 11bis process to integrate Bosnia and Herzegovina, Croatia, and Serbia and Montenegro into the process of bringing offenders to justice will have benefits that go well beyond a reduction of the Tribunal’s caseload and promoting the Completion Strategy. Involving these national governments in the process will bring reconciliation and justice to the region, as well as promote the development of a commitment to the rule of law. National courts can only play this role, however, if trials are not used for political purposes and if they meet international standards of due process and fair trial. To that end, other members of the international community have begun lending support to the fledgling Sarajevo tribunal. Substantial additional support is still required, however, as the Security Council recognized in calling for further financial support in paragraph 10 of resolution 1534.

The States of the former Yugoslavia are in varying stages of readiness to accept transfers of cases from the Tribunal. A special chamber of Bosnia and Herzegovina’s State Court will soon be ready to accept transferred cases of lower and intermediate-level officials. Officials from the Tribunal have provided substantial support to the Office of the High Representative to create this special chamber. A Joint Implementation Task Force and nine working groups were established to prepare the Sarajevo War Crimes Chamber to receive transferred cases. The Bosnian authorities expect that the Chamber will be operational by January 2005, and the Tribunal is prepared to begin transferring appropriate cases as soon as practicable.

The Tribunal is engaged in a number of initiatives designed to expedite the process of preparation for eventual referral of cases from the ICTY to Croatia and Serbia and Montenegro. For example, the Tribunal organized an extensive program of six training seminars for Croatian judges and prosecutors who are likely to take part in the trial of war crimes cases. This program, organized on the initiative of the Minister of Justice of Croatia, consisted of seminars conducted by the Tribunal’s officials, held in the late spring and summer of 2004 and repeated in the autumn. The seminars focused on the jurisprudence of the Tribunal and on international humanitarian law, with the aim of strengthening the familiarity of Croatian judges and prosecutors with these subjects and improving their ability to try serious violations of international humanitarian law. During my first official visit to Croatia in early November 2004, I was impressed by the professionalism of the Supreme Court of Croatia and of the County Court in Zagreb. I am optimistic about their growing capability to try war crimes cases according to international human rights and due process standards. I have been advised by the OSCE Mission to Croatia in a letter dated 12 November 2004 that a limited number of transferred cases could likely be dealt with adequately by a limited number of courts in Croatia, but that the transfer of any significant number of cases from the ICTY to Croatia could overburden the Croatian judicial judiciary given its present capacity.

The Tribunal has also hosted a week-long visit, organized by the United Nations Development Programme, by seven judges of the newly established Department for War Crimes at the Belgrade District Court. This court is developing important capability. The aim of the visit was to facilitate the transfer of knowledge and experience from the practice of the Tribunal and to establish channels of communication between the Special Court and the Tribunal. Upon request from the Prosecutor, a Trial Chamber is considering the transfer of one case to Serbia and Montenegro.

A second critical factor affecting the Tribunal’s ability to adhere to the Completion Strategy is the degree of cooperation from States in the former Yugoslavia. At the moment, there is a wide variation in the several States’ willingness to cooperate with the Tribunal. While cooperation of Bosnia and Herzegovina with the Tribunal remains very good in all areas, there is no cooperation on the part of Republika Srpska. There has been no serious effort by the Republika Srpska authorities to locate and arrest fugitives, and the issue of missing and possibly hidden documentation is still not resolved. Croatia’s cooperation with the Tribunal is good in all domains except for the arrest of Ante Gotovina, the sole remaining fugitive from justice from Croatia. The need to arrest Gotovina and deliver him up to The Hague continues to be an issue of the highest importance, and one that should have been resolved a long time ago. As for Serbia and Montenegro, despite the recent transfer of Ljubisa Beara and some progress on the granting of waivers for witnesses to be authorized to testify, the ICTY remains gravely concerned over that government’s lack of cooperation, in particular its unwillingness to arrest fugitives. I agree with the Prosecutor that the general cooperation of this State with the Tribunal, especially taking measures against intimidation of witnesses and against pressures on judges and prosecutors, is particularly important.

Third, the Tribunal will need to continue to follow Security Council resolution 1534, in which the Council called on the Tribunal, "in reviewing and confirming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the Tribunal’s jurisdiction." Rule 28(A) of the Tribunal’s Rules of Procedure and Evidence implements this directive by requiring the Bureau, a body comprised of the President and Vice President of the Tribunal and the Presiding Judges of the three Trial Chambers, to confirm that every new indictment submitted by the Prosecutor concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal. Up to now, the Bureau has determined under Rule 28(A) that recent indictments have all satisfied the seniority criterion.

Now, to the question of our current standing vis-à-vis the Completion Strategy schedule. In May 2004, Tribunal estimates suggested that we could still complete the trials of those accused who were in custody or on provisional release at that time, as well as the trial, in all probability, of the fugitive Ante Gotovina before the close of 2008. But I also reported that if new indictees or current fugitives were to arrive at The Hague and require new and separate trials, it would become increasingly unlikely that all accused within the custody of the Tribunal could be tried by the end of 2008.

Since my last report to the Security Council, one new indictment has been submitted and confirmed: that of Goran Hadzic. He is accused of, inter alia, perpetrating mass murders and mass deportations in his role as President of the Serbian Autonomous District of Slavonia, Baranja, and Western Srem. He remains at large. Two more additions to the caseload come from the arrests of Ljubisa Beara and Miroslav Bralo, two fugitives who were already under indictment. Beara is accused of playing a leadership role in acts of genocide by the Army of Republika Srpska at the Srebrinica enclave. Bralo is accused of perpetrating a series of war crimes including rape, murder, and torture while he was a member of the ethnic Croat HVO Jokers in the Lasva Valley region of Bosnia and Herzegovina. Both accused have now made their first appearances before the Tribunal.

These new additions to the Tribunal’s docket do not require significant revision of the estimate I presented to the Council in May 2004. At present, we still estimate that – assuming a reasonable rate of granting pending and anticipated 11bis applications – the Tribunal can complete the trials of all accused currently in custody, including those on provisional release, as well as the trial of Gotovina (provided he is transferred to The Hague before 2006 and tried together with Cermak and Markac) before the close of 2008. But any further growth in the trial docket (including the capture of Radovan Karadžic and Ratko Mladic, or the arrest of any of the four Serbian generals indicted in October 2003) would make achievement of the 2008 deadline entirely dependent on the ability to dispose of some pending or future cases other than by a full trial at the Tribunal, whether by guilty pleas or 11bis transfers. The new indictments anticipated in the coming weeks, which might result in four new trials, will further diminish the likelihood of meeting the 2008 deadline if they culminate in new arrivals (arrests or voluntary surrenders). We do not expect any of these new cases to be appropriate for Rule 11bis referral. There may or may not be the possibility of guilty pleas in these cases, but that is a matter between the accused and the Prosecutor.

This prediction rests, of course, on certain important assumptions. Following the results of the election of permanent judges on 19 November 2004, we can assume that trials pending in November 2005 will continue uninterrupted. However, the Security Council might be required to extend the mandate of one permanent Judge for a few months in order to complete his case. Moreover, it is impossible to predict delays related to the health of the accused or counsel or other obstacles to the orderly conduct of trials.

Various factors bear on the Tribunal’s future ability to implement the Completion Strategy successfully. First, it is absolutely essential that the Tribunal have adequate personnel to stay abreast of its steadily increasing workload. But this basic prerequisite to effective and fair adjudication is seriously threatened by the current hiring freeze, which not only limits the Tribunal’s ability to take on new staff to meet its increasing workload, but also forbids hiring even to replace essential personnel who leave the Tribunal. It is difficult to overstate the danger this poses to the mission of the Tribunal. Without adequate assistance from legal officers, the time required for the Judges of the Tribunal to hear and decide cases will increase dramatically. The current shortage of essential staff throughout the Tribunal may make it impossible to continue courtroom hearings in six trials simultaneously.

I have myself been involved, during the last few months, in attempts to persuade governments to pay their arrears. These efforts have had a considerable success. I wish, at this point, to express my sincere appreciation to the Russian Federation and the United States for having paid in full, in the last few months, their assessments for 2004. This means that all five permanent members of this Council have paid their 2004 dues in full. This is a welcome reflection of a strong political will to see the Tribunal succeed, and provides a salutary example. Mr. President, Excellencies, the freeze must be lifted without further delay if damage to the credibility of international justice and far greater expenses are to be avoided.

Second, the Tribunal must be able to focus its resources on trying the most senior accused suspected of being most responsible for crimes within the Tribunal’s jurisdiction within the timeframe of the Completion Strategy. This requires the development of domestic institutions in the States of the former Yugoslavia capable of receiving eligible cases referred under Rule 11bis. The schedule would also be positively affected in the event that additional accused plead guilty. Improved cooperation by Member States and appropriate measures to avoid interruptions due to the expiration of the term of office of ad litem judges in June 2005 will further assist the Tribunal’s ability to fulfill the goals of the Completion Strategy. It should also be mentioned, as I wrote to the Under-Secretary-General, the Legal Counsel, that it would be helpful for elections of ad litem judges to be held as early as possible in 2005, so as to enable the Tribunal to achieve the most timely and efficient organization of trials possible.

I have addressed some of the difficulties in attempting to meet the Tribunal’s Completion Strategy. While taking these difficulties into account, I wish to make clear that the Tribunal is fully committed to the Completion Strategy and will not be complacent in making all efforts to successfully achieving the goals of the Strategy. In this context, the Tribunal has a firm resolve to do its utmost to conclude all trials at the first instance by 2008. I was encouraged by the recognition of delegates in the General Assembly when it took up the ICTY annual report on 15 November 2004, of the measures already taken to increase efficiency and cost-effectiveness at the Tribunal. I should like to inform you that the Judges have on their agenda additional proposed reforms which, if adopted, would have a real impact on reducing the length of trials while at the same time respecting due process in all respects. I will keep the members of the Council and the membership at large informed of the additional measures to be taken.

A few concluding words. Despite the vast scope and unprecedented nature of its task, the Tribunal has gone a long way to achieving the Security Council’s goal of ensuring that persons responsible for war crimes, genocide, and crimes against humanity must answer for them in public trials that meet the highest standards of international due process. The jurisprudence that the Tribunal has developed, in matters of international criminal law and international criminal procedure, has already served as an important resource for the ICTR and other war crimes tribunals established under the aegis of the United Nations, and will no doubt provide guidance to the International Criminal Court. Our legacy will include an impressive corpus of decisions on substantive international criminal law, humanitarian law, human rights, and just as important, on international criminal procedure and evidence. As the ICTY progresses through the most active and productive period of its history, it continues to send a powerful message of responsibility and accountability to the former Yugoslavia and throughout the international community. The Tribunal has demonstrated that international prosecutions and trials of war criminals under human rights and due process are possible and credible. The Tribunal is committed to continuing to improve its methods of work, its rules, and its procedures. But the Completion Strategy will not be allowed to compromise due process rights of the accused or to create an impunity gap.

I repeat my past call and that of my predecessors for each and every Member State to do its full part to assist the work of the Tribunal. Twenty fugitives remain at large and must be arrested. This number includes Radovan Karadzic, Ratko Mladic, as well as Ante Gotovina. In this regard, I urge the Security Council to be mindful of the risks posed to international justice in seeming to allow fugitives the false hope that they can outrun and outlast the Tribunal. With the end of the Tribunal’s lifecycle in sight, we must together guard against compromising the legacy of justice, the ending of impunity, and reconciliation in the former Yugoslavia.



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