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Address of Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council

Press Release . Communiqué de presse

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


The Hague, 29 June 2004



Please find below the full text of the statement made by Judge Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council on 29 June 2004.

Mr. President, Excellencies, Ladies and Gentlemen,

It is a great honour for me once again to address this distinguished body to present the first report of the President of the International Criminal Tribunal for the former Yugoslavia pursuant to paragraph 6 of Security Council resolution 1534.

I am also pleased to address the Council during the Presidency of Ambassador Baja of the Philippines.

It is now slightly over eight months since I addressed the Council to deliver the Tribunal’s annual report on 9 October 2003 under article 34 of the Statute of the International Tribunal. In the meantime, the Council, through resolution 1534, asked the Tribunal to provide, by 31 May 2004 and every six months thereafter, "assessments by its President and Prosecutor, setting out in
detail the progress made towards implementation of the Completion Strategy of the Tribunal, explaining what measures have been taken to implement the Completion Strategy and what measures remain to be taken, including the transfer of cases involving intermediate and lower rank accused to competent national jurisdictions."

I was very pleased to transmit my assessments and the Prosecutor’s to the Council on 21 May 2004, and am honoured to be able to address you on the subject in person today.

It is now just over nine years since the first accused, Duško Tadić, was transferred to the Tribunal on 24 April 1995. In that period, the Tribunal has tried 35 accused to final judgement in a total of 17 trials. Seventeen accused pleaded guilty and were sentenced during that period, most recently Milan Babić, who pleaded guilty in January 2004 and whose sentence was rendered this
morning in The Hague.

A further eight accused are currently being tried in six separate cases before the Trial Chambers. Two of those cases are expected to conclude soon: the trial judgement in the case of Radoslav Brđanin is being written and is expected to be rendered on 31 August of this year. Final submissions in the case of Pavle Strugar are expected to be made in September of this year, which
could lead to the rendering of the judgement as early as October.

Accordingly, as of today, the Tribunal has either completed or is holding trials or, in the case of guilty pleas, sentencing proceedings involving 59 defendants. There are currently 33 accused in detention or on provisional release who are awaiting trial.

The Appeals Chamber, for its own part, has also been productive since it was first seised of an appellate matter in 1995. If we take appeals from the ICTY and ICTR together, the Appeals Chamber has decided 20 appeals from judgements rendered by Trial Chambers, including two in the first half of this year, together with 236 interlocutory appeals, 17 requests for review, and 6
contempt proceedings.

The Tribunal’s current productivity is also very high. The Trial Chambers are now operating at maximum capacity, with six cases currently in trial or at the judgement-writing phase. The Appeals Chamber has heard six appeals from judgement since October 2003, and the judgements in those cases are currently being drafted. Three further appeal hearings are planned for this year. The
number of appeals from judgement and interlocutory appeals before the Appeals Chamber more than doubled between May 2003 and May 2004.

The Judges of the Tribunal are committed to sustaining this level of productivity throughout the remainder of the life of the Tribunal. We are taking or have taken several additional steps that will help to ensure that the Tribunal’s mandate is carried out within the Completion Strategy deadlines. These steps have been summarized in the assessments submitted to the Council and I do
not propose to restate them in detail:

The Judges amended Rule 28(A) of the Rules of Procedure and Evidence to comply with the requirement of seniority in resolution 1534; Trial Chambers continue to operate at full capacity, with six cases simultaneously in trial or at the judgement-writing stage; The Appeals Chamber has taken efforts to make interlocutory appeals more effective by allowing such appeals from both the ICTY
and ICTR only if the Trial Chamber certifies that the appeal involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and for which an immediate resolution by the Appeals Chamber may materially advance the proceedings; The Appeals Chamber is reducing the length of its appeals judgements and limiting repetition by
invoking its own accumulated jurisprudence on questions that have been previously resolved; The Working Group on Scheduling of Cases, which I established, continues to assist in forecasting the resources and measures needed to achieve the Completion Strategy and in ensuring that new cases are ready for trial whenever a pending case is concluded.

One additional measure was taken earlier this month that is therefore not reflected in my assessments dated 21 May. I refer to an amendment to Rule 11 bis of the Rules of Procedure and Evidence, which is the Rule that authorizes a Trial Chamber, either proprio motu or upon a motion by the Prosecutor, to refer the case of an individual already indicted by the Tribunal
to a competent national jurisdiction. The Judges of the Tribunal, by a unanimous vote, have amended that Rule in two important ways.

The first amendment concerns the domestic jurisdictions to which cases involving indicted persons may be transferred. The Rule formerly permitted a Trial Chamber to refer a case only to the State in which the accused was arrested or in whose territory the alleged crime was committed. The Rule now contains a third option: referral to a State having jurisdiction and being willing and
adequately prepared to accept such a case. This amendment expands the range of nations that could potentially receive cases from the Tribunal beyond States of the region. This is particularly important should some courts in the former Yugoslavia continue to suffer from some deficiencies in the ability to conduct trials in accordance with fundamental fairness and due process.

The second change amends the criteria to be considered by the Trial Chamber in deciding whether to refer a case to a domestic jurisdiction. The Rule now provides that the Trial Chamber may order a referral only after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. This change makes explicit a requirement that
was implicit in the prior version of the Rule, and ensures that cases will not be referred to jurisdictions that do not observe the minimum guarantees of procedural fairness and international human rights. The Rule 11 bis amendments also reflect similar initiatives taken in Rule 11 bis of the ICTR.

As the Council recognized in resolutions 1503 and 1534, the ability to refer cases of intermediate and lower rank accused to domestic jurisdictions, including the planned War Crimes Chamber within the State Court of Bosnia and Herzegovina, is an essential prerequisite to the fulfillment of the Completion Strategy. But the referral of cases depends on the presence of propitious
conditions, many of which are outside the Tribunal’s control. The most important condition is the presence of domestic institutions willing and prepared to try cases involving allegations of serious violations of international humanitarian law in a manner that is credible, fair, and in accordance with international legal norms. Tribunals established by the United Nations can only
transfer cases if they are assured that international standards are met, not only in terms of the conduct of trials, but also in terms of the condition of detention facilities and the treatment of detainees.

It has been reported that thought is being given to requesting a Trial Chamber to decide motions to transfer cases under Rule 11 bis even before these conditions have been met and thus before the accused can in fact be transferred to the custody of another state. I believe that it is not helpful to consider transferring a case before the national jurisdiction is truly
capable of living up to international standards for trial and for detention. A decision by a Trial Chamber to remove an indictee from the Tribunal’s docket in such circumstances would present serious human rights problems for the accused, who would then be in a state of "legal limbo." The accused would have left behind his day in court at The Hague but could not yet be transferred to
the custody of national authorities. Any such initiatives, prematurely taken, could conflict with international norms of due process and human rights.

The Tribunal is committed to supporting the achievement of credible and fair war crimes trials in all States of the former Yugoslavia. As far as the War Crimes Chamber in Sarajevo is concerned, I am confident that it will fully meet international due process standards. I am very grateful to the Members of the donor community who attended the donors’ conference held at the Tribunal
on 30 October 2003. I am also grateful to the Security Council for recognizing, in Resolution 1534, that further support for the Chamber is essential to its success. During my visit to Sarajevo, I held talks on this subject with the High Representative, Lord Ashdown; his Senior Deputy, Ambassador Fassier; and the President of the State Court of Bosnia and Herzegovina, Judge Raguz. I
was informed that, despite some delays in implementation, courtroom facilities will be available to begin trials in January 2005. However, with regard to detention facilities, which are essential for the transfer of accused from The Hague and thus for the holding of trials, the prospects are less reassuring. While the Office of the High Representative is pursuing various options to
obtain temporary detention facilities meeting international standards, this will require the support of the international community.

At the moment, there are still doubts that credible war crimes trials can take place in the domestic jurisdictions of Croatia or Serbia and Montenegro.

With regard to Croatia, the European Commission recently concluded that a single standard of criminal responsibility is not yet applied equally to all accused charged with war crimes before Croatian courts. The Mission to Croatia of the Organization for Security and Co-operation in Europe, which has monitored several war crimes trials in Croatian courts throughout 2002, 2003, and
the early months of 2004, reported that there are still significant concerns about the capacity and impartiality of parts of the Croatian judiciary. In a report dated 22 June 2004, the Mission to Croatia reported that its observations through trial monitoring "suggest that there is a considerable lack of impartiality amongst parts of the judiciary." A second report issued the same day
stated that "the national origin of defendants and possibly even more importantly that of victims continued to affect war crime proceedings in 2003."

However, let me emphasize that the overall cooperation of Croatia with the Tribunal has improved significantly. Although the failure to arrest fugitive Ante Gotovina is still a matter of grave concern, I view the progress that has been made in Croatia’s relationship with the Tribunal with great satisfaction. As I stated to the Rapporteur Group for Democratic Stability to the
Committee of Ministers of the Council of Europe on 7 May 2004, "Croatian authorities have also recognized the need to enhance the capabilities of their national judiciary for purposes of handling cases which may be referred to its courts by the Tribunal." The European Commission has similarly recognized that the Croatian authorities appear determined to improve conditions for
prosecution of alleged war criminals in domestic courts. The OSCE’s Mission to Croatia likewise reported "improving conditions for the conduct of domestic war crime trials" and noted "growing recognition among the public of the importance of evenhanded prosecution of war crimes." The Mission to Croatia also stated that "there is no reason to believe that the Croatian judiciary would
not be able to handle a limited number of cases in a fair and efficient way, particularly if assigned to those judges and prosecutors who have already received special training and resources." On this front, the Tribunal has been engaged in several expertise-sharing initiatives with Croatian authorities with a view to preparing the national judicial system for the referral of cases
from the ICTY.

Therefore, while progress is still needed, there is cause for optimism with regard to the potential transfer of cases to certain courts in Croatia that have received special training and resources for the trial of war crimes cases.

The likelihood of referring cases to the courts of Serbia and Montenegro is diminished by the poor record of cooperation between that State and the Tribunal in recent months. The Government of Serbia and Montenegro appears to have taken little or no action with regard to four high-ranking fugitives who were indicted by the Tribunal last fall and have remained at large for over six
months. The Government has also failed to respond to requests by the Registrar for explanation of its default in arresting individuals subject to Tribunal arrest warrants.

Moreover, as indicated in my letter to the President of the Security Council of 4 May and the Prosecutor’s report dated 29 April which was transmitted therewith, the Government of Serbia and Montenegro has failed to cooperate with Tribunal in several other important ways.

The OSCE’s Mission to Serbia and Montenegro, which monitored several war crimes proceedings before domestic courts throughout 2003, concluded that the national judiciary lacks full capacity to conduct war crimes trials in accordance with universally adopted standards.

Nonetheless, the Tribunal remains committed to assisting the Government of Serbia and Montenegro in laying the groundwork for fair and effective war crimes trials in the courts of Serbia and Montenegro. The Tribunal recently hosted a visit, organized by the United Nations Development Programme, by seven judges of the newly-established Department for War Crimes at the Belgrade
District Court, designed to transfer knowledge and experience from Tribunal personnel to the Members of the Court.

In addition to the requirement of a fair trial, Rule 11 bis continues to require the Trial Chamber to consider the gravity of the crimes alleged and the level of responsibility of the accused before referring a case to a national jurisdiction. These requirements reflect the Security Council’s sensible distinction, expressed in Resolutions 1503 and 1534, between the most
senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal, who are to be tried in The Hague, and accused of intermediate and lower rank, who are potential candidates for trial in the former Yugoslavia or in other competent national jurisdictions. This approach is principled and faithful to the established mission of the Tribunal as it has
been historically understood.

There may be a temptation, in light of the Completion Strategy deadlines, to consider referral of cases involving even high-level accused to national jurisdictions. Much as I am committed to the goals of the Completion Strategy, I have serious reservations about the potential referral of cases involving senior indictees for trial in the courts of the former Yugoslavia. The entire
rationale for the establishment of the Tribunal was to ensure trials for those most responsible for the heinous acts of savagery committed during the Yugoslav conflict. I do not see a rationale for distinguishing between some senior accused and other senior accused, as opposed to the Council’s eminently rational distinction between senior accused and accused of intermediate or lower
rank. I am concerned that selecting some senior accused for trial in domestic jurisdictions would inevitably raise questions regarding equality of treatment and fairness of trials.

Furthermore, trials of senior accused in the former Yugoslavia would place tremendous stress on the still fragile socio-political environment there. Questions would also be raised by victims, who routinely insist that the most senior accused be tried at The Hague. There would also be serious problems of witness protection, which are already a concern in the courts of the former
Yugoslavia but would be exacerbated in the trial of a high-level defendant. When I discussed this matter with senior officials during my visit to Sarajevo last week, I was told that the national judicial system and the prosecutorial authorities are currently not able to accommodate trials of senior Tribunal indictees.

We must be careful to ensure that our dedication to completing the Tribunal’s mandate on time does not detract from the Tribunal’s basic purposes, which are to administer justice even-handedly and to contribute to the restoration and maintenance of peace in the region. To depart from the Tribunal’s mission to try those most responsible for alleged violations of international
humanitarian law risks undermining the Security Council’s decision to establish the Tribunal and doing a disservice to the cause of international justice. A rigid and mechanistic pursuit of the Completion Strategy should be avoided, as it would lead to the espousal of trials that fall short of the guarantees of international human rights of which the United Nations is – and should be
– protective and proud.

I would now like to discuss the current prognosis with regard to the Completion Strategy and additional measures to be taken to enable the Tribunal to meet its deadlines.

When I last addressed the Council in October, I stated that the Tribunal would be able to complete the trials of all individuals then in the custody of the Tribunal or on provisional release within the 2008 deadline. The estimate at the time was also that it might be possible to try two high-priority fugitives, Radovan Karadžić and Ratko Mladić, within the 2008 deadline, provided
they were tried together and brought into custody in 2005. However, it was estimated that an additional year beyond the end of 2008 would be needed to try all indictees who were still at large as of October 2003.

Since my last address to the Council, three new indictments have been submitted and unsealed, and a fourth previously-submitted indictment was unsealed. One of these indictments has resulted in a guilty plea, while another concerns four high-level Serbian officials who are still at large. The remaining two indictments, however, have resulted in the arrival of eight senior accused
at The Hague. At present, 33 accused in 17 cases are in the Tribunal’s custody or on provisional release.

I am pleased to report that the Tribunal is still in a position to try all of the accused currently in custody or on provisional release before the end of 2008, including the eight new accused who recently arrived at The Hague. It may also be possible to try the fugitive Ante Gotovina within that period, provided he is transferred to The Hague before 2006 and tried together with
two other co-accused.

There would be capacity to hold additional trials if persons currently in custody or on provisional release decide to plead guilty or are referred to domestic jurisdictions for trial under Rule 11 bis. Since Rule 11 bis referrals can only be ordered by a Trial Chamber after consideration of the facts of each particular case, it is not appropriate for me to offer
predictions as to how many cases are likely to be so referred. However, as an example, if five cases of persons currently in custody or on provisional release are referred to national jurisdictions, it should be possible to hold an additional major trial before the end of 2008.

However, if any additional senior-level accused, whether they are already-indicted fugitives or newly-indicted accused, surrender to or are transferred to the Tribunal, it may not be possible to hold separate trials of those individuals within the 2008 deadline. Currently, there are 8 indictments outstanding that have not resulted in an arrest or surrender. These indictments
involve 18 accused, including Karadžić and Mladić, out of a total of 20 fugitive indictees. My understanding is that the Prosecutor may submit up to six additional indictments involving 11 suspects. It is therefore possible that additional senior-level accused – who under existing Security Council guidelines would not be suitable candidates for referral to national jurisdictions for
trial – will arrive at the Tribunal in the future. Such arrivals would make completion of all trial work by the end of 2008 impossible, although there may be some relief to the docket through guilty pleas or referrals to national jurisdictions.

All of these predictions are necessarily tentative. It is possible that several cases might be deemed appropriate for transfer to domestic jurisdictions or that several high-level accused will choose to plead guilty. Absent such outcomes, however, the Tribunal will not be able to accommodate any additional trials beyond those of the accused currently in custody or on provisional
release within the deadlines of the Completion Strategy.

I now wish to turn to the most important measures that, I believe, need to be taken in order to enable the Tribunal to maintain and improve upon its current level of productivity. Three measures deserve special mention: staffing, election of judges, and cooperation by Member States.

The Completion Strategy poses a particular staffing challenge, namely that the Tribunal must ensure that it can work at full speed until the very end of its existence. The recruitment and retention of qualified and highly motivated staff is essential, yet very difficult given that other institutions can offer more senior positions and longer-term career opportunities. This problem
has been exacerbated by arrears in payment of assessments by Member States, which led the Secretariat to impose a recruitment freeze on the Tribunal in May 2004.

The current financial shortfall of contributions from Member States has resulted in an unacceptable and disruptive effect on the work of the Tribunal. Unless we are able to replace staff members who occupy critical posts which are necessary to the conduct of cases, we will be forced to delay, suspend, or stop trials. This would be disastrous in terms of the Tribunal’s ability to
remain on track with respect to the Completion Strategy and would convey the wrong message to the international community and especially to the region of the former Yugoslavia. A lack of adequate funds for the Tribunal to conduct its trials would be taken as a lack of commitment on the part of the international community to the rule of law and to international justice.

This body established the Tribunal with a view to ending impunity and to bringing alleged criminals to justice. Our work is now imperilled. I appeal to the Council, as the policy-making organ that decided that international justice and the rule of law must be upheld and that some of the worst crimes since World War II should not be allowed to go unpunished, to examine this
situation and take whatever measures are necessary in order for us to continue our work and accomplish the goals of the Completion Strategy.

The international community cannot expect the Tribunal, on the one hand, to complete its work in an efficient and effective manner while, on the other hand, withholding the necessary resources to ensure that the Tribunal is able to function. Indeed, the inability to recruit qualified personnel, even to replace staff members who leave, is a serious threat not only to the Completion
Strategy, but to the very ability of the Tribunal to continue its daily work. Should the arrears and the freeze continue, it is only a question of time until serious slowdowns occur. In a court of law, where defendants have the right to their day in court and to a speedy trial, such resource-driven delays are unacceptable.

I appeal to all Member States who owe outstanding amounts - and especially to the Governments which are responsible for the bulk of the arrears - to heed the repeated calls of the Secretary-General for immediate payment on these assessments. Payments by smaller contributors are equally important; although the amounts involved in most cases are so low as to be virtually painless for
the Governments concerned, they add up significantly. Their non-payment sends a distressing signal of indifference by the Membership toward international justice. I have personally approached Governments urging them to make payment and will appear together with President Møse before delegates of the Fifth and Sixth Committees tomorrow.

If payment is not made promptly, and the freeze therefore continues in place, suspensions in cases will likely become inevitable.

The second point concerns the election of permanent Judges of the Tribunal. I have previously raised with the Council, both through a letter dated 13 January 2004 and through additional documents submitted to the Council’s Informal Working Group on the ICTY and ICTR, that disruption of the work of the Tribunal would be unavoidable if, as past practice indicates, some Judges are not
reelected to the new mandate beginning on 17 November 2005.

The Security Council has not taken any action on this matter, and I respect its prerogatives. I hope that disruptions in the work of the Tribunal can be avoided, as would be the case if all currently sitting Judges were re-elected, but such an outcome of course cannot be guaranteed.

Given that it appears that the judicial election will take place, it is important that it be scheduled in a way that will minimize any effect on the Tribunal’s work. On 17 June, I met with the Secretary-General and, at the unanimous request of the Judges of the Tribunal, requested that he consider that the election be held in mid-November 2004, rather than in March 2005 as prior
practice would indicate. The advantage of bringing the election forward to a date one year before the beginning of the new mandate is that it would enable the assignment of longer trials to panels of Judges who have been re-elected for the new mandate, thus reducing the danger of disruption of the case. I am happy to report that the Secretary-General has accepted this suggestion and
will send out letters in July inviting nominations. I call on Governments to submit their nominations as soon as practicable, taking into account, to the extent possible, the stability of the Tribunal.

I also remind the Council that the mandate of all ad litem Judges at the Tribunal will expire on 11 June 2005. Since ad litem Judges cannot be re-elected under the present Statute, the Council will have to take some action to address this situation. I will discuss this matter further with the Secretary-General and the Security Council later in the fall.

The final point that deserves mention in the category of measures yet to be taken in furtherance of the Completion Strategy is improved cooperation by Member States. The failure of the States of the former Yugoslavia to arrest and transfer Radovan Karadžić, Ratko Mladić and Ante Gotovina to the Tribunal is a major impediment to the successful completion of the Tribunal’s mandate.
As I have stated in this room before, the Tribunal’s mission cannot be said to be complete until those three fugitives have been tried before the Tribunal. Mechanical pursuit of the Completion Strategy must not lead to impunity for those accused.

I view the Completion Strategy as entirely compatible with the Security Council’s aim in setting up the Tribunal in the first place: it is a practical manifestation of the international community’s commitment to delivering justice credibly and effectively to the region and thereby contributing to reconciliation. I am concerned, however, that the Completion Strategy has led to the
view that the Tribunal now has a fixed termination date and therefore no longer needs the support of the international community. It certainly appears that some in the former Yugoslavia think that, by hiding from arrest, they can "wait out" the Tribunal until it goes away.

The Completion Strategy rests on the assumption that the Tribunal will continue to receive the financial and political support of Member States that is needed to carry out its work. It does not matter how productive or efficient the Tribunal becomes if it cannot recruit and retain staff, if Judges sitting on lengthy trials must be replaced, or if many senior accused remain at
large. No amount of structural reform or hard work on the part of the Tribunal will solve these problems. Rather, the international community must reaffirm its commitment to the Tribunal’s work and to the elimination of impunity for violations of international humanitarian law by removing these obstacles from the Tribunal’s path. The Completion Strategy will not become a reality if
Member States start to back away from the Tribunal.

Mr. President, Excellencies, the Security Council’s establishment of the Tribunal recognized the important contribution that the recognition of individual criminal responsibility plays in the preservation of peace and the need for a mechanism for the trial and punishment of serious violations of international humanitarian law. That initiative has borne fruit, not just through the
Tribunal’s holding of fair and transparent war crimes trials in its own cases, but also through the legacy of procedural and substantive jurisprudence that is already providing guidance to the ICTR and the Special Court for Sierra Leone, and that will no doubt likewise guide the International Criminal Court and future national war crimes trials. I urge the Members of the Council to
continue their support for the Tribunal and to ensure that the Tribunal is given the means necessary to fulfill its promise and its full potential. In return, the Tribunal will continue to take all available steps to carry out its work in a timely and effective manner, in order that persons alleged to have committed the most serious crimes known to humanity are called to