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Remarks of Judge Richard May, Judge of the International Criminal Tribunal for the former Yugoslavia, to the Fourth Session of the Preparatory Commission for the International Criminal Court.

Press Release CHAMBERS

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

The Hague, 20 March 2000

Remarks of Judge Richard May, Judge of the International Criminal Tribunal for the former
Yugoslavia, to the Fourth Session of the Preparatory Commission for the International Criminal Court.

Please find below the full text of Judge Richard May’s remarks to the Preparatory Commission of the International Criminal Court (ICC) on Monday 20 March 2000 in New York.

Good morning, Mr. Chairman, Vice-Chairs, members of the Preparatory Commission and honoured guests. I am grateful to have the opportunity to address, on behalf of the International Criminal Tribunal for the former Yugoslavia, such a distinguished audience and thank you for allowing me to do so. We watch with interest the work of the Preparatory Commission and congratulate you on the outstanding work done so far.

My principal purpose in speaking to you today is to present a paper that the Judges of the Tribunal have prepared, which we hope will be of use to you in your remaining work. The President of the Tribunal, Judge Jorda, had intended to present this paper to you himself. Unfortunately, he is unable to come to New York at this time, and has asked me to speak on his behalf. He has also asked me to stress the Tribunal’s willingness to be of assistance to you in your work and to provide you with information regarding the Tribunal’s experience. In this connection I would note that representatives of the Tribunal are here attending the current session. Please feel free to call on them.

Before I discuss the paper which we submit today, I would like to remind you that the Judges of the Tribunal prepared a report which was submitted to the Commission at its session last July by President McDonald. The Judges believe that a number of the points raised in that report are still relevant and would draw your attention to it, particularly the sections regarding trial management. As Judge McDonald noted in her speech, the problems arising from the length and complexity of the proceedings have been among the most difficult which the Tribunal has faced. So it bears emphasising again that in drafting Rules of Procedure and Evidence, care must be taken to give Judges the tools to expedite proceedings. Our experience has been that every aspect of the proceedings must be examined scrupulously to ensure that all parts of the process are carried out efficiently and fairly. This aspect of the work may be of importance to the International Criminal Court, as it is to be anticipated that its proceedings will be every bit as complicated as those which confront the Tribunal.

As Chair of the Tribunal’s Rules Committee I know first-hand how difficult it is to draft, (or in our case) amend, Rules. If I may make one general comment, it would be this: while it is important for Rules to be clear, they also need to be flexible enough to allow Judges to deal with the different sets of circumstances which arise daily in the courtroom, many of which cannot be anticipated.

Let me now turn to the paper which we are submitting today. In thinking about how we could usefully contribute to your work, we have tried to take into account the current stage of the process. Provisional Rules of Procedure and Evidence have been drafted and many important issues resolved. Thus, the Judges thought it might be most useful to focus on some unresolved areas and to provide you with a description of the Tribunal’s practice and experience in them. Our paper, and by extension my address today, concentrates on technical issues and on practical realities rather than on general principles or broad overviews. I would emphasise that the intention is to share our experience with you, in the hope that it will be of assistance. The paper offers contributions on four specific areas:

(i) evidence in cases of sexual violence;

(ii) the role of the Victims and Witnesses Unit;

(iii) issues arising with respect to defence counsel; and

(iv) matters relating to the enforcement of sentences.

These topics are fully discussed in the paper and I intend only briefly to cover them here; then, Mr. Chairman, if time permits, I would be glad to answer any questions.

Turning to the first topic, evidence in cases of sexual violence. By way of background, it should be noted that the Tribunal’s Rules of Procedure and Evidence were devised with a specific purpose in mind, i.e. to enable the Judges to adjudicate war crimes, crimes against humanity and genocide committed within the context of the conflict in the former Yugoslavia. Thus, the Tribunal’s Rules take into account patterns of conduct specific to these crimes and this context. As has been widely recognised, this conflict saw the mass perpetration of gender-based crimes. In addition to the reports of widespread rape and other forms of sexual violence prevalent in all wars, the conflict also evinced organised and systematic rape of women, particularly in detention facilities. The Tribunal’s Rules, particularly Rule 96 which governs the admission of evidence in cases of sexual assault, were consciously adapted to take these factors into account. In drafting Rule 96, the Judges intentionally rejected many of the evidentiary rules applied to rape trials in national jurisdictions. Instead, they adopted a policy precluding evidence of consent to sexual contact when certain oppressive or coercive conditions are present. Therefore, consent cannot be used as a defence when the victim has been subjected to violence, duress, detention or psychological oppression. Moreover, the Rules preclude, altogether, any effort by the defence to introduce evidence concerning the prior sexual conduct of the victim, as such evidence is deemed irrelevant in these situations and can only serve as a pretext to intimidate or undermine the credibility of the victim.

Given the nature of modern conflicts, the Court certainly will face issues relating to sexual violence committed within the context of war crimes, crimes against humanity, or genocide. It will thus have to grapple with the same issues faced by the Tribunal. The Judges believe that the approach taken in its Rules and in its subsequent jurisprudence represent a progressive development of the law which has been instrumental in protecting victims of sexual violence without infringing on the right of an accused to a fair trial.

Dealing with the next topic, the role and protection of victims and witnesses; the first matter to be noted is that the ICC Statute contains provisions relating to the participation of victims in the proceedings. Such provisions do not exist in the Tribunal’s Statute. We are thus not in a position to provide guidance on these subjects.

However, for most individual victims their primary contact with the Court will be as witnesses; and the Tribunal has considerable experience in this area. Thus in the past two years, the Tribunal’s Victims and Witnesses Section has worked with almost 800 witnesses, almost all of whom have travelled to The Hague from the former Yugoslavia or other countries. The Tribunal’s experience may be of assistance to the Court. One example is the problems faced by the Victims and Witnesses Section in trying to carry out its unique role, in the context of UN financial and administrative rules. The Section must, where necessary, protect the confidentiality of witnesses and make complicated logistical arrangements for them while complying with UN travel, procurement and financial accountability rules. Accountability is, of course, important; however the Preparatory Commission may want to allow a certain amount of financial and administrative flexibility to the Court’s Victims and Witnesses Unit in its Rules or in the Court’s financial regulations.

The Judges recognise the valuable expertise the Tribunal’s Victims and Witness Section has acquired regarding witness protection issues. We have amended the Rules to allow the Section, on its own initiative, to request a Chamber to take appropriate measures to ensure the privacy and protection of individual victims and witnesses. This provision allows the Section to intervene in cases where additional steps need to be taken to protect vulnerable witnesses and is an important way of ensuring the protection of witnesses. It is a development that we would commend to the Preparatory Commission.

I would make a final point. It is also important to clarify the responsibility of the Victims and Witnesses Unit during the investigative stage, i.e. to be clear when the Office of the Prosecutor’s primary accountability for victims and witnesses ends and the responsibility of the Unit begins. While Article 43 of the ICC Statute indicates generally where that line should be drawn, it is important for the Rules of Procedure and Evidence to be clear on this point. Moreover, the Rules must give sufficient authority to the organ responsible for witnesses or potential witnesses to take the measures necessary to protect them.

I move now to discuss the accused and his or her defence. All will agree that the right of the accused to a fair trial depends, in part, on access to an adequate defence. However, the provision of legal aid to the accused and administrative support to defence counsel is a complex matter. At the Tribunal we have taken the view that, as a neutral party, the Registrar is the appropriate official to handle it. There are serious issues of financial and administrative accountability that arise in relation to the administration of a legal aid system. Millions of dollars have been spent in providing defence counsel to accused before the Tribunal, and we must remember that these are public funds. Thus, the Tribunal’s Rules have placed the responsibility for defence counsel with the Registrar, who is the only official who meets the necessary criteria. Given the Tribunal’s experience, any other administrative structure for defence counsel and legal aid would need to take these matters into account.

In the Tribunal’s experience there are other practical issues regarding defence counsel which have arisen. For instance, there is a general lack of familiarity with the Tribunal and its procedures. While this is certainly understandable in view of the unique nature of the Tribunal, the problem is that defence counsel who are new to our procedures may cause delay. Given our large docket such delays can be serious. For this reason, we are now taking steps to implement training courses for defence counsel. I believe that such training needs to be as extensive as possible, but that it is well worth the investment. As a consequence of training the proceedings will run more smoothly and the quality of the defence can only be improved. The Preparatory Commission may want to build on the Tribunal’s experience in this area and require mandatory training for defence counsel.

Another issue that arises in relation to defence counsel is in the area of ethics and discipline. It will be difficult for any of the organs of the Court to monitor ethical issues. We face a similar difficulty at the Tribunal, as we have defence counsel from a number of different countries. Presumably the Court will have defence counsel appearing before it from many parts of the globe. The root problem is that generally in domestic jurisdictions ethical issues are monitored and dealt with by professional associations of lawyers or bar associations. In the international context there is no comparable body. In order to fill this lacuna, the Tribunal has adopted a Code of Professional Conduct. While the Code does address the problem of establishing standards, the problems of effective monitoring and appropriate enforcement mechanisms remain. Misconduct in court can, of course, be dealt with by the Judges, but the more general ethical requirements expected of counsel cannot be monitored by the Judges or the Registrar. Thus, it may be appropriate for the ICC Rules to provide for an association of defence counsel, which would have responsibility for bringing ethical violations to the attention of the Judges or the Registrar. Such an association could also play a role in the training of defence counsel. However, it bears repeating that the primary responsibility for providing support to defence counsel and, most importantly, for the legal aid system must reside in an accountable official of the Court, such as the Registrar.

The final substantive area addressed by our paper relates to the enforcement of the sentences of the Court. In the case of the Tribunal, we have a detention unit in which to confine the accused prior to and during trial and appeal proceedings. However, the Tribunal has no permanent facilities to imprison convicted persons and is dependent on the voluntary co-operation of States to enforce its sentences. At this stage the Tribunal has relevant agreements with only six States to enforce its sentences. One of the difficulties that we have experienced with some States is that the State’s domestic law prevents it from entering into such an agreement without time consuming amendments to current legislation. In the case of the Court, almost all States will require implementing legislation, and this would be the perfect opportunity to make the amendments necessary to domestic legislation.

That is a brief summary of some of the topics developed more fully in the paper. I would mention only one other aspect of the Tribunal’s experience. It holds its sessions in The Hague, many miles from the region in which the events with which we are concerned occurred. We work in languages and use procedures which are foreign to the peoples of the region. There is, thus, the danger that the Tribunal’s work, which is intended to assist in the process of reconciliation, will be misunderstood. In order to combat this danger the Tribunal has now created an Outreach Programme. (It has done so with the generous voluntary contributions from a number of States.) The purpose of the Programme is to find creative ways of communicating the work of the Tribunal to the peoples of the former Yugoslavia.

The Court will face similar problems since it will also be rendering justice from afar. If its work is to be meaningful it too must find ways of communicating that work effectively to an international public: its judgments need to be communicated throughout the world.

In conclusion, I would urge the delegates of this Preparatory Commission to make every effort to ensure that the Rules and Procedure and Evidence will assist in creating a Court that can effectively deliver justice. While in theory the International Criminal Court can be a vital tool in providing redress for heinous crimes, in practice it will not be able to do so unless it has the tools and the flexibility to carry out its task. I hope, on behalf of the President Jorda and the other Judges of the Tribunal, that our contribution will be of use in assisting you towards this end.



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