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Address by Ms. Carla Del Ponte, Chief Prosecutor of the ICTY, to the UN Security Council

Press Release . Communiqué de presse

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


The Hague, 10 October 2003



Please find below the full text of the statement made by Ms. Carla Del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, to the United Nations Security Council on 9 October 2003.

Mr. President,

I am most grateful to have once again the opportunity to address the Council. As requested in resolution 1503, I intend to explain my plans to implement the completion strategy for ICTY. In this context, I will also focus on some essential conditions that must be implemented for a successful completion strategy, including the full cooperation of the States in the former Yugoslavia
and the deferral of cases to domestic jurisdictions.

In resolution 1503, the Security Council provides my office with clear guidance regarding the timeframe of my investigations. I can report to you that necessary measures are continuously being taken to ensure the completion of all remaining investigations by 2004. This is also reflected in our budget submission, which proposes significant cuts in the Investigation Division during
2005. I am confident that the remaining most senior leaders who are suspected of being most responsible for crimes falling within the ICTY’s jurisdictions will have been indicted by the end of 2004.

Following the information provided to the Council by the President, I would like to give you some information regarding the nature of the cases that remain under investigation. You will understand that I cannot give precise details about these cases, as that would compromise the investigations.

There are now 13 investigations remaining that, in my judgement, must be completed by my Office before it could be said that the investigative mandate, entrusted to me and my predecessors by this Council, has been completed in a responsible manner. I constantly review these investigations and, as things stand today, it is possible that not all of them will result in new
indictments. All these cases involve the remaining individuals who held the highest possible levels of responsibility, for very serious crimes committed in the former Yugoslavia, and involving most of the parties to the conflicts spanning from 1991 until 2001.

Even if all these investigations resulted in new indictments, they would lead to nine additional trials, because some could be joined with other future trials. They involve approximately 30 individual suspects, all at the highest levels of responsibility. At this stage, there is hardly any prospect that these cases could be assumed locally.

In addition to these 13 "top priority" investigations, my office has conducted 17 additional investigations that were suspended at the end of last year as a result of my decision to focus solely on the most senior perpetrators. They involve 62 suspects who will not be formally indicted by the ICTY. I expect these cases to be referred to domestic courts for further investigation and
prosecution according to the following distribution: 12 cases involving 48 suspects to be referred to Bosnia and Herzegovina, 3 cases involving 8 suspects to be referred to Croatia and 2 cases involving 6 suspects to be referred to Serbia and Montenegro. Our’s and the international community’s great attention devoted to the referral of cases to domestic jurisdictions demonstrates a
general concern that no impunity should be tolerated.

There are currently three ongoing trials before the ICTY, involving four accused. Another 18 cases, involving 27 accused, are at the pre-trial stage. There are also currently 17 indicted fugitives remaining at large, and if all were surrendered to the Tribunal in a timely fashion, there could potentially be an additional 10 trials, not taking into account that some joinders with
other trials or pleas of guilty may also be possible. The bottom line with all of these cases is that there could be between 45 and 40 trials to be completed by the Tribunal, including the three ongoing trials, by 2008. It is very likely that some of these trials will result in pleas of guilty while others could be referred to the domestic courts in the former Yugoslavia. That is the
scope of the potential trial load of the ICTY.

You have heard the accurate and realistic report of the President regarding the dates for the completion strategy. I obviously share his estimates, which are the result of a very fruitful and transparent process of coordination, where all three pillars of the Tribunal are closely associated. My Office is committed to continue this dialogue with the President as closely as possible
so as to ensure that the Tribunal as a whole can fulfill the objectives defined in its mandate and in the various Security Council resolutions, not least in resolution 1503 of 28 August.

Now, according to the latest calculations made jointly with the Registrar and the President, it will not be possible to prosecute in The Hague before the end of 2008, all the suspects and accused that will have been indicted by ICTY by the end of 2004. I take this situation very seriously and, to supplement the conclusions drawn by the President, I would offer the following
possible approach for your further consideration.

By the end of next year, we will have a precise view of what remains to be done. All remaining indictments will have been issued and will most probably be public. The Tribunal will know the status of the current list of fugitives and will also know how many additional fugitives there will be, arising out of the new indictments. It will also be much clearer which cases will result
in pleas of guilty. In close cooperation with the President, and on the basis of the guidance provided by the Security Council, it will then be possible to decide which cases should be prosecuted in The Hague and which cases could properly and responsibly be referred back to the domestic jurisdictions in accordance with the procedure foreseen in Rule 11 bis of the Tribunal’s
Rules of Procedure and Evidence. Among the many reasons in favour of this option, I would highlight the following:

Referring ICTY indicted cases to the domestic jurisdictions offers better guarantees that these cases will actually be tried, rather than referring non-indicted cases, as would be the case if I would stop all investigations now; namely, it would enable ICTY to use its primacy and call back cases if serious flaws were noted. This would not be possible for non-indicted cases; as I said
before, my remaining investigations cover the region and concern all main parties to the conflict. By completing these investigations, ICTY will have proven that it worked impartially towards achieving justice, peace and reconciliation in the former Yugoslavia. I kindly invite you to consider the political conclusions that some might draw if I were forced to cease investigations at
this juncture; this option would ensure that the international community has succeeded in maintaining the highest standards of criminal justice in the operations of ICTY, in particular those involving the independence of the Prosecutor as expressed in Article 16 of the Statute;

For these reasons, I believe that we should continue on the road indicated by the Security Council last August, bearing in mind that, by the end of next year, all remaining indictments will have been issued. At that stage, at the very beginning of 2005, we will with the President, review the situation to determine which cases should remain in The Hague and which cases should be
referred to domestic jurisdictions. This solution conforms with the guidelines provided by this Council in resolution 1503 and our firm commitment to conclude our investigations by 2004 and the subsequent dates of our completion strategy. We will continue to work diligently towards that end.

In the meantime, in relation to the cases remaining in The Hague, I will also continue to work closely with the President and the Registrar to identify other methods to improve the efficiency of the Tribunal, to shorten the length of trials, and to maximise the use of the courtrooms. It is and it will of course be up to the Security Council to provide us with the necessary
framework that will allow us to implement the completion strategy, while maintaining the necessity to have independent and impartial justice. In this connection, allow me to elaborate briefly on two key issues directly related to the success of the completion strategy: full cooperation by the States of the former Yugoslavia and fostering reforms and support of national courts.

Full cooperation by the States in the former Yugoslavia is of crucial importance to speeding up the trial process. Access to documents and witnesses, as well as arrests and transfer of fugitives remains the most basic contribution of these States to the completion strategy. It is also their international legal obligation to do so. Following my address to the Security Council on 29
October 2002, I regret to have to report to you that Croatia, Serbia and Montenegro, Republika Srpska, and the Bosnian Croat party to the Federation of Bosnia and Herzegovina have not achieved so far full cooperation with the Tribunal.

In the case of Croatia, I can report that most of my requests to the Croatian Government regarding access to documents and witnesses are being treated now seriously and professionally. The backlog of important benchmark requests has been cleared just recently. It is regrettable though that on average it takes more than a year to process a request from my Office. It is also
noteworthy that when it comes to important international deadlines, when the status of cooperation is in the limelight, the speed and quality of compliance with my Requests increases considerably. I hope, and indeed I received assurances from the Government, that with the new requests from my Office there will be no undue delays.

At the same time, the Croatian authorities bear the responsibility for the failure to arrest and transfer General Ante Gotovina. The Croatian Government recently submitted reports to the Registrar, pursuant to ICTY Rule 59, providing additional explanations and pointing to the conclusion that the accused Gotovina was outside the Croatian territory. Most of the information provided
in these reports was already known and outdated. In the meeting I had this week with Prime Minister Račan, I shared information available to me about the whereabouts of Gotovina, which is coming from various sources concurring that this accused is in Croatia. I also gave details about the protection that he receives from persons within the institutions. In front of me, the Croatian
authorities (President and Prime Minister) did not deny that the accused could be in Croatia, despite public statements saying that he was in a European country. We agreed to work together in order to locate and arrest him and I received firm assurances from the Government in this respect. Until we see results, though, Croatia’s obligation in accordance with Security Council
resolution 1503, in particular its operational paragraph 2, will remain to be fulfilled.

Our cooperation with Belgrade remains very difficult and heavily politicised whether in regard to arrests and transfer of fugitives, or access to documents and waivers for high level witnesses.

I continue to face serious problems regarding access to key documents, in particular those held in various archives. I showed understanding for the Serbian concerns regarding protective measures for some materials, even providing the Government with my written commitment in the Milosevic case. It is understood that protective measures ought to be reasonable and not contradict the
public interest and principle of transparency of the trials. It is regrettable that the requested documents only started to arrive in my Office in the recent months and only as a result of binding Court Orders issued by the Trial Chamber and not as a result of my Requests for Assistance or voluntary contribution. Also, I proposed a mechanism in February this year to ensure proper
access to key archived documents by my staff, respecting the Government’s confidentiality concerns. It took more than seven months to receive a reply, which arrived only last week. It is actually a counter-proposal that is totally unacceptable, since it would forbid my staff to have access to the documents for the whole period of 1991 until the end of 1995, which obviously corresponds
to the wars in Croatia and Bosnia and Herzegovina – the core of ICTY’s mandate.

In the Milosevic trial and other cases, I sense a willingness on the side of the authorities to retain crucial material that could prove the implication of the then Belgrade authorities (former regime) in the crimes committed in Bosnia and Herzegovina. Belgrade invokes national security concerns in regard to these materials, but in fact such approach is limiting or slowing down the
Tribunal’s access to critical evidence. This contravenes the interests of justice and truth, and also does not help in terms of our completion strategy. Just one example, it is about two years that we are asking for the personal file of Ratko Mladic, and while a file is not a fugitive, we still cannot get it. Moreover, witnesses still have to go through a lengthy process whereby they
have to be granted waivers by the authorities. This process, which exists only in Serbia and Montenegro, has proven to be extremely slow and painful, and it has an obvious detrimental effect on the trials and on our efforts to shorten their length. For example, to this day, over 60 such requests for waivers are pending decision.

I was inclined to speak about some improvement in Belgrade’s cooperation with the ICTY before my visit to Belgrade last week, but I am not in position to do it. There is no true commitment for cooperation or readiness to take difficult steps, badly needed not only from the point of view of the Tribunal. The authorities are unanimous in stressing the necessity to cooperate with the
Tribunal, however, when it comes to tough decisions or need to provide sensitive documents we face obstruction and negative attitude.

Among the 17 fugitives remaining at large, I have reason to believe that well over half of them, including Ratko Mladic, reside in Serbia and Montenegro. The authorities now concur with me that at least seven accused are in Serbia. On a number of occasions this year, my Office transmitted very precise information to the Serb authorities in the expectation that it could lead to the
arrest of fugitives. Unfortunately, we received very limited feedback after such intelligence was passed, and it was not convincing.

In relation to Bosnia and Herzegovina, the authorities of the Republika Srpska have still not located and arrested a single indicted fugitive to date. Karadzic is known to be constantly in between the Republika Srpska and Montenegro. Additionally, we cannot obtain full access to necessary documents or individuals, while certain archives and their contents are clearly hidden from my
investigators. It appears that there are still influential elements in the police and army structures in the Republika Srpska who actively protect and support the fugitives and war crimes suspects.

To conclude my comments on the level of cooperation on the part of the states and entities of the former Yugoslavia, I must mention the Bosnian Croat party to the Federation of Bosnia and Herzegovina. For several years my office has received very little cooperation from the Bosnian Croat authorities in respect of cases involving Bosnian Croat perpetrators. The reality is that there
is no cooperation in these cases and there have been no steps or efforts to comply with the Tribunal’s requests. Although my Office has received some assistance in the location of witnesses, there has been no response to requests for relevant documentation, in fact there has been consistent deceitful denial of the existence of such material. Much has to be done on the part of the
Bosnian Croat party to the Federation.

Finally, I have to share my concern that the 2004 deadline set in the completion strategy, instead of speeding up cooperation, may well in the contrary encourage States in the region to buy time and put additional obstacles to the cooperation with ICTY.

Mr. President,

As you can see, lack of cooperation by the concerned States can endanger the completion strategy. Another key development that will influence the implementation of the completion strategy is the ability of the countries of the former Yugoslavia to prosecute the lower-level perpetrators themselves, including the suspects or indictees that ICTY might wish to refer to Bosnia and
Herzegovina, Serbia and Montenegro or Croatia. I am relieved to hear that the donors conference for the War Crimes Chamber in the State Court of Bosnia and Herzegovina will take place soon. My office is obviously at disposal to assist in this process.

When considering which cases to refer back , the main problems confronting us are the absence of adequate domestic witness protection arrangements and the lack of legislation in any country in the region to enable evidence gathered by the Tribunal to be admissible in the domestic courts. We are already facing this situation in a case which is to be referred to Bosnia and
Herzegovina. The witnesses who were prepared to testify in The Hague are not willing to do so before the domestic court. None of the States of the former Yugoslavia have a legal obligation in their national law to recognise and act upon the indictments issued by ICTY, in particular those transferred to the domestic courts for prosecution. The same can be said about the status of the
non-indicted cases I intend to refer to the domestic courts, together with the evidence I have gathered during the course of my investigations. This obviously constitutes a serious impediment for the transfer of cases from ICTY to domestic jurisdictions, and it is my hope that the international community will assist in providing the necessary input for the relevant changes in domestic
legislation to occur.

It would appear that Croatia, Bosnia and Herzegovina, and Serbia and Montenegro, each understand the need for domestic war crimes prosecutions, and that this involves a long-term commitment. This is highly commendable and is essential if true reconciliation and a lasting peace are to be achieved. However, without cooperation between themselves, in terms of bilateral legal
assistance, provisions for the protection of witnesses and evidence and, finally, mutual agreements on the extradition of accused persons, any realistic prospects of dealing with the cases referred by the ICTY to the domestic courts of the former Yugoslavia will be grim.

Let me assure you once again of my determination to implement the objectives set by the Security Council. In so doing, I will continue working closely with the President. Let me also reiterate that I am grateful to the members of the Council for their support and trust. This support remains crucial, notably to encourage States to cooperate fully with ICTY, and to foster the
creation of reliable domestic judiciaries in the region. Ultimately, we will all benefit if justice, the rule of law and reconciliation prevail in the former Yugoslavia.

I thank you for your attention.