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Address by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Carla Del Ponte, to the UN Security Council.

Press Release . Communiqué de presse

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


The Hague, 27 November 2001


Please find below the full text of Carla Del Ponte’s address to the UN Security Council on Tuesday 27 November 2001 in New York.


Thank you, Madam President,

I am grateful to have this opportunity to appear before the Council to update you on the work of the Prosecutor’s Office in the two international Tribunals. It is my assessment that both the ICTY and the ICTR are poised to enter the most important phases of their existence, and are each about to begin their major criminal trials.

Much crucial work is still before us in both the ICTY and the ICTR, but we are also now in a position to begin to see how the Tribunals may complete their mandates. We are starting to consider what has been called our "exit strategy". I know that the Council is particularly keen to have an understanding of what my future prosecution policy will be, and how much work the Tribunals
will have to do before they can complete their respective mandates.

Although there are substantial differences in the nature and complexity of the conflicts in the two continents - in the scale of the killings and the timescale of the events - it goes almost without saying that my focus in both situations is on the leaders. Any lower level cases that are going through the system can either be explained in terms of the history of the Tribunals’
development, or they concern notorious individuals whose conduct stands out despite the fact that they had no formal position in any hierarchy. Instead, today I would like to explain two aspects of our policy. These aspects apply equally to Rwanda and to the former Yugoslavia.

First, we have not investigated all crimes. We have concentrated on the areas in which the worst massacres occurred. So there have not been in-depth investigations of every municipality or opstina in Bosnia or every commune in Rwanda. But we have established that both the genocide in Rwanda and the ethnic cleansing in Bosnia were highly organised criminal enterprises
- centrally organised at the highest level, and pursued with enthusiasm at the regional and local levels.

Even at these command levels we are not dealing with a small handful of individuals, whatever impression the general public may have about how many architects there were. From the many thousands of significant targets, we have selected under 200 in each Tribunal, and we do not expect to prosecute even all of those. Many, many important crimes have therefore been left to be dealt
with by national jurisdictions. To appreciate the scale of the undertaking, we have only to look at the internal Rwandan justice system, where we see in the traditional gacaca process that 11, 000 local jurisdictions, involving 260,000 local judges, will be dealing over a three-year period with 120,000 perpetrators of the genocide - in which between 800,000 and one million
people died in the space of four months.

Second, one should not fall into the trap of polarising accused into big fish and small fish. A number of the accused under investigation in the ICTY and the ICTR played a very nasty role somewhere in between these two extremes - as key organisers and motivators at the district or local level. They had strong links to the central power base and were fully aware of the overall
criminal enterprise, but they also fervently put the plan into action in their areas and had blood on their own hands. In the former Yugoslavia some of these individuals still occupy official functions and their activities are an obstacle to the peace process. In Rwanda the genocide exploded quickly in the areas where such people fuelled its flames, whereas in other regions, without
these willing perpetrators the numbers of killings were lower and the massacres were less extensive. For the local people, the victims and the survivors, it was these people who brought their world to an end, not the remote governmental architects of the overall policy of genocide. Unless these local leaders are brought to justice in both Rwanda and the former Yugoslavia, the ordinary
population will not come to terms with the past, and the process of reconciliation and building a stable peace will suffer accordingly. That is why these cases justify my attention and that is why the choice of cases to pursue is not at all simple. The crimes were highly organised, directed and implemented at a number of levels, each of which depended on the other.

We have previously given figures for remaining investigations - 36 for ICTY (involving a total of 150 accused) and 136 for ICTR (involving a total number of 136 accused, since each investigation there concerns a single target). The Council, however, should not think that these figures present the picture of a Prosecutor out looking for business, and ranging broadly over all
possible suspects whatever their involvement. On the contrary, the figures represent, as I have said, only a fraction of the potential number of crimes or suspects, all of which involve mass murders, multiple killings, or other crimes at the very highest end of the scale of national or international crimes. In fact we turn most cases away.

If there is any public concern about the number of investigations, it is a concern about resources, because it cannot be a concern in terms of justice. There may be people who are saying after the events of 11 September that the world has moved on and the issue of the day is now terrorism, not past conflicts. We cannot take that view of international justice. There is now all the
more reason for the international community to harden its resolve to pursue those responsible for genocide and crimes against humanity. It is neither credible nor honourable to give support to the war against terrorism while not doing everything possible to bring to justice those responsible for genocide in Rwanda, for Srebrenica and other massacres. As with the fight against
terrorism, we delude ourselves if we think there is a quick and low-cost solution that does the job properly. The Tribunals must have sufficient means to do their job, and all the projections we make about outstanding workload are made on the assumption that the two Tribunals will be given the resources that we have sought in our budget submissions for the next two years.

Madam President, I know that earlier this month the Council held informal consultations to discuss the question of ad litem judges for the ICTR. Tribunal representatives were present to listen to the views being expressed, and certain concerns were relayed to me about prosecution policy. First, let me say that I strongly support the appointment of ad litem judges -
for two reasons. We must increase our capacity to hold the trials of accused who have already been in custody for long periods. And we must also be able to process new cases within a reasonable time. These are separate compelling justifications for increasing the number of available Trial Chambers.

I understand that the Council is broadly sympathetic to the request for ad litem judges, but I also understand that you need more information from me about my prosecution policy.

Let me therefore give you specific details of my prosecution policy in the ICTR. Fifty-three accused are in custody: some cases have been dealt with; 17 accused are currently on trial, 25 are in custody awaiting trial, and over 20 are still at large, including major figures who have found refuge in countries outside Rwanda, and who are beyond the reach of any national

Our investigations concentrate not on geographical areas of Rwanda, but on prominent figures in the command structures of the Government, the military, and in other walks of life such as the media, the clergy, the intelligentsia and the business world. The only prospect of bringing these people to justice lies with the International Tribunal, and we have demonstrated our ability to
track them down. Our specialist tracking teams work often in the most difficult conditions to locate their targets, but it can be done, and it is being done. This year nine accused have been arrested so far.

As things stand, bringing existing detainees to trial in the courtrooms will take us well into 2005 or even beyond. In addition, I indicated at the beginning of this year that I intend to complete a further 136 new investigations, to bring our investigative mandate to completion by the end of 2004. That programme, which involves a maximum of 30 new indictments per year, appears to
have caused some alarm, and I hope it is not being misunderstood.

The figure of 136 represented the very outside estimate of our future workload. The figure is the number of investigations, not the number of trials. Many factors will affect whether or not an investigation results in an actual prosecution. In a significant number of cases the accused are confirmed to be dead. Not all investigations succeed in gathering sufficient evidence. Not all
accused can be traced or arrested, and the number of trials will be lower than the number of arrests because the accused can often be tried jointly. (In one current trial six accused are being tried together.) Working down from the outside number, our original estimate was that the 136 investigations might therefore result at best in 45 new trials, and perhaps even fewer.

What does that mean in additional years of work for the ICTR? Assuming, after the major prosecutions are past, that subsequent trials can be much more streamlined in terms of their proof, we are looking probably at another four years of trial workload for the Tribunal after the existing business has been processed. That is what we can expect from our investigations programme. Four
years on to the end of 2004 would bring us to the end of 2008.

This year we are largely on course to meet our investigative targets. Nineteen cases are reaching the indictment stage now, and 21 other investigations are ongoing. It is true that some of these are suspects who were involved at the local level, but if I can give you just a single example - one of these targets is believed to be implicated in the killings of between 20 - 30
thousand people. That demonstrates the scale of the crimes we are continuing to address in Rwanda, even in our new cases.

For these ongoing investigations we will depend upon the close cooperation of States, including Rwanda itself. One new area that we are addressing concerns allegations of crimes committed during 1994 by members of the RPF forces. The success of those enquiries will be especially affected by the degree of support we have from the Rwandan Government. The extent of their collaboration
remains to be seen. We also intend to move away from our policy of sealed indictments in favour of greater use of circulating arrest warrants openly through the INTERPOL red notice procedure and taking advantage of reward programmes for information leading to arrests. We are particularly interested in the situation in the Congo, and have begun to explore with the authorities in
Kinshasa whether we can trace suspects there. It is essential that we do so.

Madam President, I believe in these circumstances my investigative strategy is fully justified by the facts. I am satisfied that cases are being carefully and properly selected for prosecution in the international forum. In addition, individual cases are constantly reviewed as to their viability, and are suspended or discontinued if need be. There is no reason of principle based on
the public interest in the pursuit of justice that would justify a radical departure from the existing policy.

But I hope we shall not come to that point. Ad litem judges are required to deal swiftly with existing business, irrespective of the future court programme. If the capacity of the Tribunal were to be increased for this reason, there would certainly be a substantial shortening of the Tribunal’s life. I agree with the estimate that existing trials could probably be completed
by the end of 2004, and that the remaining trials could be dealt with by the end of 2008.

In the Office of the Prosecutor we are prepared to aim towards such a date, even if that means adjusting the content and presentation of the later trials accordingly. I am determined to address the quality and focus of our prosecutions. I have already set about changing the whole approach of my staff so that the emphasis at all times is on making the best use of resources. We must
ensure that all activity, both in investigations and prosecutions, is specifically directed towards meeting the evidential and legal needs of the Chambers. I am resolved to present cases with much greater precision and focus than in the past, and to explore all available avenues to speed up the proceedings without losing the essential fairness of the trial process. If we do that, in
my estimation the close of 2008 might be a realistic date for the end strategy for the trials in the ICTR.

Madam President, if I might now turn to specific issues for the ICTY, I can inform the Council that in The Hague we are also planning strategically for the future. Our programme of outstanding investigations publicly revealed in 1999 is under constant review. Four investigations relating to Kosovo and Macedonia have been added to the original list of 36 bringing the total to 40. A
review of the status of these investigations has been carried out in recent weeks. Four have been successfully completed. A further four have been incorporated into other on-going cases. Six have been discontinued, and a further 10 have been identified as potentially suitable for prosecution at the national level. These 10 have been suspended pending a review in a year’s time. The 16
remaining investigations are active and are now being resourced according to their priority. Together, the active and suspended cases involve 108 potential accused and an estimated 34 new indictments, approximately half of which might appropriately be dealt with by national courts. The deadline is still to complete the outstanding investigations by 2004.

There is an interesting possibility for an ICTY exit strategy, namely, as I have just suggested, that some cases might be referred to courts in the former Yugoslavia for prosecution. The Tribunal’s Rule 11 bis already envisages the referral of cases, but it has not yet been used, and it is doubtful whether a suitable judicial process exists at the national level. Adequate
measures have yet to be taken for the protection of witnesses. As the majority of the cases are from Bosnia and Herzegovina, I have therefore suggested in Sarajevo the idea of designing a special court in Bosnia and Herzegovina that would have an international component - or developing an existing State court to perform this special task. That court would deal with cases referred to
it by the ICTY either during or after the completion of our mandate, and it might also deal with other sensitive war crimes cases which are presently submitted to my office for review under the "Rules of the Road" scheme following the Rome Agreement of 18 February 1996.

The idea of a national forum involving the participation of international prosecutors and judges to deal with war crimes cases has so far been well received by the Office of the High Representative, UNMIBH, the Presidency in Bosnia and Herzegovina, and by certain States. Much work would have to be done to establish the required prosecutorial and judicial mechanism. My office stands
ready to assist the development process in any way possible, since I am aware of the international community’s desire to see both Tribunals finish their work in a timely fashion. If we began to design a special court in Bosnia and Herzegovina now, it might well be up and running by 2004, and able to begin taking accused in the kind of cases we have identified for our own
investigations as being suitable candidates for national prosecution.

I would not, however, be ready to hand over prosecution of my cases to national courts as they now operate. War crimes cases are still politically sensitive in the region, and the international community must promote equitable national jurisdictions and legal institutions. The United Nations must have an important role to play in this regard.

I must speak also about State cooperation with the Tribunal, which remains problematic. It takes a great deal of time and effort to achieve cooperation and we do not yet enjoy full cooperation across the board in the former Yugoslavia. Some time ago the Council was seized of non-cooperation by Yugoslavia and then by Croatia. Last year I was able to report that the situation with
Croatia had improved, but that full cooperation was not yet forthcoming. At present I can reiterate that in some areas we managed to make advances together with the Croatian Government, but there are still areas where progress is very slow (especially with production of documents). I am constantly in a constructive dialogue with Zagreb. I expressed my disappointment about the
non-apprehension of General Gotovina and was assured that the Government remained committed to arresting him and transferring him to The Hague. However it appears that General Gotovina has been allowed to escape arrest, and I wish to bring that unsatisfactory situation to the attention of the Council. I also call on Croatia to overcome any remaining obstacles and stand firm on the
path of full cooperation.

With the Federal Republic of Yugoslavia the picture is very complex and often discouraging. Working with Prime Minister Dindjic and the Serbian authorities at the Republic level, we have experienced good results in terms of arrests and access to evidence. The transfer of Slobodan Milosevic to the Tribunal was a groundbreaking event and a courageous step by the Serbian Government.
But co-operation at the Federal level appears to be blocked for reasons of domestic politics. Despite their declarations, the Federal institutions obstruct the work of my Office. State cooperation does not begin and end with the surrender of accused. We need access to documents, archives and witnesses. At the Federal level, access to these important sources of evidence is being denied
to us on the pretext that no domestic legislation authorises it. And while the Yugoslav Federal authorities continue to claim that an internal law must be enacted for the FRY to be able to cooperate with the Tribunal, I see no effort on their part to ensure adoption of such legislation, on the contrary.

Moreover, I regret to inform the Council that Ratko Mladic is residing in the FRY under the official protection of the Yugoslav Army. As an officer of the Yugoslav Army, General Mladic is said to enjoy military immunity, and he is being shielded from both national and international justice. To give another glaring example, the Council will recall the efforts we have made for years
now to obtain the transfer of the three accused indicted for crimes in Vukovar. In November 1998, the Council adopted resolution 1207 stressing that no State may invoke provisions of its domestic law as a justification for its failure to cooperate, and calling for the arrest and transfer of the three Vukovar accused. Nevertheless, the Army continues to harbour them with the approval
of the Federal Government. Instead of compliance with the specific demands of the Security Council, these indictees are allowed to defy the Tribunal publicly by making presentations of their books. The list of wanted persons sheltered in the FRY has grown longer, and instead of clear, unambiguous support to the Government of Serbia, instead of taking a clear stand on cooperation with
Tribunal, the Federal authorities are doing everything possible to stop even limited cooperation by the Republic authorities, who have been most helpful.

I have not had occasion to address the Council since the arrest and transfer of Slobodan Milosevic. I would like to express my gratitude to members of the Council and to all other States without whose insistence and support the transfer of Milosevic would not have happened. Last week a third indictment was confirmed against Milosevic - covering crimes in Bosnia and Herzegovina,
including genocide. The support of States is essential for the work of both Tribunals and I would also like to record my gratitude to those countries who assisted in the recent tracking and arresting of several accused for the ICTR in Arusha.

Turning to Bosnia and Herzegovina, the most problematic issue is still cooperation with Republika Srpska. A law on cooperation was recently passed, and we are now very keen to see the concrete results of its implementation. As for the authorities of the Federation of Bosnia and Herzegovina, they have confirmed their full commitment to cooperation once again by the swift transfer to
The Hague of four indicted senior Bosniak military staff.

The argument all too often put forward by Belgrade and Banja Luka, and - to a lesser extent - by Zagreb, that cooperation with the ICTY is threatening the political stability of the country is one which should not be taken at face value. Is it an easy endeavour for the Federation of Bosnia and Herzegovina to transfer a former Chief of Staff of the Army or Generals who are still
widely regarded as war heroes? Although the authorities in Sarajevo do stress the political difficulties that may arise from their co-operation with ICTY, they do not invoke them as excuses for not cooperating.

Madam President, last week I visited Skopje in order to inform the authorities of the Former Yugoslav Republic of Macedonia about two new investigations opened by my Office in regard to the alleged war crimes by the NLA and Government forces. The Council will be well aware of the situation in that country. Despite the fact that all parties involved in the recent conflicts here
agreed that the existence of the Tribunal has already had a very positive deterrent effect, I have to admit that I am deeply worried. Until now I have experienced no problems with activities of my Office in this country. I have had full cooperation from the Government so far, and I was assured by the President and the Prime Minister that I could count on their full cooperation in
regard to any of my investigations. But the real test will come when investigations are pursued and if indictments are confirmed.

In conclusion I therefore appeal to the Council for its continuing support for the work of my Office, and especially ask the Council to insist upon the arrest of Radovan Karadzic and Ratko Mladic, whose continuing liberty is an affront to the authority of this Council, and mocks the entire process of international criminal justice. If we are seriously resolved to enforce the rule
of law against those who commit acts of genocide, or crimes against humanity or terrorism, and if we want long-term stability in the Balkans, we simply cannot allow Radovan Karadzic or Ratko Mladic to escape justice, and we cannot talk in any meaningful way about the completion of the mandate of the International Criminal Tribunal unless they are brought to trial with the others in
The Hague.

Madam President, those are the key issues I wished to bring to the attention of the Council. Finding long term and comprehensive solutions for criminal justice in the former Yugoslavia and Rwanda does not lie within the mandate or power of the International Tribunals themselves. As Prosecutor appointed by the Security Council I will fulfil whatever mandate is given to me in the
pursuit of international peace and security.

I will be happy to answer questions and provide further details. Thank you.