(Exclusively for the use of the media. Not an official document)
Speech by his Excellency, Mr. Claude Jorda, President of the International
Criminal Tribunal for the former Yugoslavia, to the UN Security-Council.
Mr. President, Excellencies, Permanent Representatives to the United Nations, and Members of the Security Council,
Allow me first to express my gratitude for the honour you have bestowed on me by providing me with the opportunity to address you about the situation of the Tribunal whose President I have had the honour of being since November 1999. This is yet another indication of your unflagging interest our work.
About two weeks after having received and heard the Prosecutor, Mrs. Del Ponte, you will not be surprised that my remarks today deal more with the concerns of the Judges, although it is true that everything the Prosecutor undertakes, of course, impacts on the trials and, consequently, on her work.
Since the Judges’ activities constitute the focus of our institution, I would essentially like to speak to you today about the overall situation in which we find ourselves. I will use as my starting point a Report on the operation of the Tribunal which I had the honour of filing with the Secretary-General on 12 May 2000. The purpose of the Report was to present the medium and long-term measures which will improve our Tribunal’s operations.
Why are we seeking to improve, or even to reform the ICTY? In the document presented in support of our proposals, which was circulated to you, you will find several answers to this question. I will therefore limit my comments to emphasising some of the most outstanding points, that is, those most likely to give you the greatest amount of information on which to reflect.
What we are saying is that the time has come to put forth proposals designed to make our Tribunal more effective. In this respect, we are taking up the objectives of the Expert Group mandated by the Secretary-General to evaluate the effectiveness of the Tribunal’s activities further to the resolution of 18 December 1998. The very significant and productive work of this Group gave rise to 46 particularly relevant recommendations, which have been of great benefit to the Tribunal. Many of them have already been implemented or will soon be.
You might wonder why a further report is necessary or ask me why I have come to you with new proposals. This is because the perspective here is different, even complementary.
The analytical and reflective work accomplished is specifically judicial. I am speaking here about the Judges’ observations on the Tribunal’s activity. More than that, however, this is their first attempt to project themselves into the future using as a starting point a critical evaluation of their strictly judicial activity. The report does not supplant that of the Expert Group but is, in some respects, an extension of it. In this way, it represents the forward aspect.
The conclusion we have reached is that, on some points at least, the International Criminal Tribunal for the former Yugoslavia must be reformed. This reform is needed because the Tribunal is about to succeed in its mission or, to be more precise, the missions entrusted to it in 1993 by the Security Council.
Behind this apparent paradox, are several facts which must be taken into account in order to measure the need for this historic instrument of international justice to move once and for all out of the age of official recognition to that of universal credibility which alone is important for anyone seeking real progress in the field of human rights.
Let us not forget. Alarmed ever since the start of the conflict in the Balkans by the serious violations of international humanitarian law being committing in the territory of the former Yugoslavia, in particular, by the mass killings and the practice of "ethnic cleansing", and further also to many resolutions of which a large number remained ineffective, your Security Council took an unprecedented decision in 1993. Using the resources available to it under Chapter VII of the Charter and under the impetus of the Secretary-General, the Security Council decided on 22 February 1993 that the establishment of an international criminal tribunal was a measure for keeping or restoring peace and international security (Report of the Secretary-General, 3 May 1993) in this region of the world.
More than six years after its establishment, has the Tribunal met these expectations? Expressed differently, has it achieved the missions entrusted to it?
When one attempts to move away from the prevailing scepticism surrounding this institution’s first steps and remembers that this institution had no real precedent, it is useful to recall that the Tribunal was set up at a time when the conflict was still raging and when the leaders, the main players in the conflict, were – and to some extent are – still the heads of their Governments. Although one can also note objectively that the Tribunal has fulfilled much of the hope placed in it, is impossible to conceal the difficulties encountered which, in several respects, prevent me from feeling any type of self-satisfaction.
The opposite is true. An unflinching review must be the starting point for suggesting ways to initiate reforms designed to transform a tentative success into a decisive and irreversible step in the progress of international humanitarian law.
To judge those responsible for ethnic cleansing, to render justice to the victims, to prevent recidivism and to work on ensuring that history is not rewritten by blind revisionism was, and is, the immense task entrusted in November 1993 to the eleven Judges from the five continents who were elected by the United Nations General Assembly.
Let us make no mistake: the establishment of the Tribunal has not prevented recidivism. The fall of the Srebrenica enclave and, later, the thousands of Albanians expelled from Kosovo are seared into the hearts of those who believe in the exemplary virtue of justice. Perhaps this weapon was not in and of itself sufficient or perhaps it was too tentative to succeed in driving away the deadly fumes of nationalism by threat alone, at least in that region of the world.
Establishing the truth behind the events and preventing all forms of revisionism are the underlying objectives of all international criminal justice systems and, in particular, the system practiced in The Hague. Much has been accomplished on that score. The atrocities committed and the plans which were their inspiration are no longer merely the subject of media accounts or descriptions of commissions of experts always vulnerable to polemic. These events have entered into the realm of incontrovertible judicial evidence. Vukovar, Sarajevo, Srebrenica and so many other places where cruelty was the watchword of the day have, through the trials of the main accused who played the principal roles in what happened, become legal sites.
Prosecuting and trying those responsible for what happened is however the essential raison d’être for any criminal court. But for justice as extraordinary as that being rendered in The Hague and because this Tribunal is dealing with the most serious crimes committed again humanity, it must be especially exemplary. This justice must conform to the highest standards of humanitarian international law in respect of both the victims and the accused. In short, it must move that law forward, that law which is constantly being born anew.
As regards the strictly judicial record and in view of the background in which this institution was created, one would need to be a very partial or partisan observer – and they are legion even today – not to credit the Tribunal with several advances. Starting with absolutely nothing (no body of judicial or procedural rules, no logistics, no budget or facilities and no accused), in six years, the Tribunal has adopted several rules and directives including the Rules of Procedure and Evidence, the Rules of Detention, and the Directive on the Assignment of Counsel. It has set up its Detention Unit along with its Victims and Witnesses Section. The Tribunal has indicted 96 individuals, 36 of whom are currently in detention, rendered 16 judgements on the merits and several hundred interlocutory decisions and orders of various sorts. Above all, however, it has demonstrated what to my eyes is essential, that is, the fact that an international judicial institution is both feasible and operational.
Nonetheless, the time seems ripe to ask questions as to the Tribunal’s future and to attempt to anticipate many difficulties which, if not grasped and resolved, might put at risk the accomplishment of its mission and compromise its very raison d’être.
We feel that the time to strike is now. The Tribunal has reached a turning-point in its history. Its very success, like many internal or peripheral factors, has led us to proposing several measures to those who have the political responsibility of deciding what it is to become.
First, there are the significant political changes which can be seen, which are even accelerating, in the Balkans. The impact of these must be measured. These are followed by other factors which must be considered. The increasingly assertive support of the international community which, in answer to our constant calls, has meant that we now have more and more active co-operation as regards arrests. Concomitantly, arrests are also more regular and more frequent and the Tribunal is now confronted with "quantitative" management even though it cannot yield an inch as regards the exemplary and "qualitative" character of its proceedings. Still, no matter how exemplary our trials seek to be, they have become increasingly complex as questions and problems for which no ready-made solution exists in international criminal law arise for the Judges to solve.
The perspective of the Office of the Prosecutor should also be included, that is, the criminal policy to be followed in the months and years to come. Several dozen investigations are on-going which, when added to those already conducted and completed, will bring almost 200 accused to The Hague. Is it conceivable that high level officials, high ranking political and military leaders - whether they have surrendered or have been arrested – would spend months and months in detention waiting for their trials to begin? Pre-trial detention has already become long and given rise to disputes over requests for provisional release. Some of these requests have, in fact, been granted. The situation is paradoxical at a time the Tribunal is pressing for the arrest of all those it has indicted.
Lastly, and not the least important, the place the Tribunal now occupies within the mechanism of humanitarian international law, especially in view of the establishment and implementation of the International Criminal Court, places a degree of responsibility on our shoulders. There is no question that much of what is being done in The Hague will, at best, serve as an example of what to do, and, at worst, as an example of what should not be done. By demonstrating that universal criminal justice was possible and feasible, the Tribunal has in some respects assisted in the setting into place of a more permanent judicial organ. Still, this demonstration must continue until the end. A failure of the ICTY, whatever the cause, would deal an extremely heavy blow to the future court at the very moment that many States are on the point of ratifying the treaty which established it.
It must be noted that the Tribunal’s prospects are worrisome and that it is necessary to anticipate what may happen. The workload of the Tribunal is now so heavy that, should no remedy be found immediately, the institution’s very credibility will be put into question. We owe to the accused a trial which is, of course, fair but which is also expeditious. We owe expeditious trials to the victims and also to the international community which has placed its faith in us. It is true that although the need for expeditiousness is an excruciating problem for all advanced legal systems, the conditions in which the need is felt in an international criminal justice system are even more critical. As the crimes recede into the past and seem further and further away from us, the collection of evidence often in the hands of the States involved in the conflict or even other States involved in the intervention and peace-keeping forces, as well as the diplomatic and political component inherent in an unprecedented judicial institution established at the time the conflict was in full swing are examples of the difficulties confronting the Tribunal. These are all reasons which do not help to ensure expeditiousness, and to them one must add a procedural system which, despite the many changes designed to accelerate matters, still leaves the trials too much in the hands of the parties.
We must be clear. The forward study which the Tribunal has just conducted shows that if nothing changes, be it the criminal policy, the rules of procedure, or the Tribunal’s format and organisation and if, conversely, all the elements, especially the political ones, are moving toward an unavoidable increase in the number of cases, there is no doubt that the Tribunal’s original 4-year mandate in 1993 which was renewed in 1997 will need to be extended several times. But most important, this situation will penalise both the accused and the victims. International justice will not be any grander as a result.
What should be done then? What should be proposed? Far from attempting to paint an overly bleak picture, things should instead be properly considered. By that I mean that we must be aware that problems exist which are related to the very vitality of our institution and not to any type of possible debility. We are faced with a type of "growing pain" and we must control the pain instead of letting it control us.
After having considered the entire range of possible solutions – at least those falling within their province, that is the non-political solutions– and after having analysed their advantages and disadvantages, the Judges unanimously supported a flexible pragmatic solution which combines internal reforms (procedural, practical and organisational) rather than one which would reinforce the Chambers’ trial capacity.
The idea is simple: practice of an initially highly adversarial procedure has shown us that more initiative and manoeuvrability should be left to the Judges who, in the final analysis, are the custodians of the protection of the universal values which underpin the missions assigned to them. This trend, which began in 1998, relates first and foremost to the pre-trial phase whose expeditious and effective conduct was put under the control of the pre-trial Judge. In the plan presented, this phase is known as "pre-trial case preparation" which could be handled in part by professional legal specialists, themselves acting under the authority and control of the Judges –I emphasise this point - and which, through constant and fruitful dialogue with the parties, would give us a trial pruned of all its useless branches and focused on the real factual and legal issues. The pre-trial phase of the case would be given priority right after the accused’s initial appearance. The accused would then see that his case is being dealt with immediately following his arrest, which is not always the case today when the Judges are overloaded and needed at almost all times in court. The pre-trial phase would be thus conducted on an uninterrupted basis, independent of the chronic bottleneck in the Chambers, that is, in real time.
However, the fluidity gained at the pre-trial phase is meaningful only if many trials – that is, many hearings – can be held as soon as they ready. This is the second aspect of the proposed reform, which, naturally, complements the first. In order to deal with the significant number of trials awaiting them, and without formally rejecting the creation of additional trial chambers along the lines of what was done in 1997, here too the Judges opted for a flexible model adaptable to the necessarily changing situations which the Tribunal has faced and which it will continue to confront. The constitution of a pool of Judges who would be called on as soon as a case was trial-ready and only for that one trial (which is the origin of the expression ad litem Judges) seemed to us a solution with merit in several respects. It is best adapted to the irregular pace of the indictments, arrests, or even incidents which may affect the pre-trial phase. Since the ad litem Judges would be called to The Hague for a specific case only, many more Judges and, consequently, many more States, would participate in the work of international justice.
The document which has been prepared shows the high level of productivity which can be expected from the proposed combined solution. In practical terms, the period of the mandate assigned to the Tribunal – at least insofar as the first instance trials are concerned - could be shortened to the end of 2007 instead of 2016, a gain of 9 years, that is, cut by half. We can therefore hope that at the time the International Criminal Court is set up, the Tribunal will have completed its task. Granted, appeals would remain. The Appeals Chamber alone presents significant complex problems because it is attached to the appeals proceedings at the Rwanda Tribunal. The document presented deals with this issue but only in order to advocate a more traditional solution – put forward moreover by the Expert Group – and unanimously supported by the Judges of both Tribunals, that is, the creation of two additional ad hoc Judges for the Arusha Tribunal. Aside from this reinforcement, however, resorting to ad litem Judges is not recommended for the Appeals Chamber. It is conceivable that the ICTY’s permanent Judges, once they are no longer involved in first instance trials around 2007, could by themselves and without any reinforcement devote themselves entirely to the cases on appeal. In this respect alone, the flexible solution of ad litem Judges is preferable to the establishment of permanent Chambers.
Have we changed everything? I do not believe that this is the case. It is not without interest to note that recourse to temporary judges was already advocated by the Expert Group in recommendation 21 of its Report. The considerations of the Judges validate those of the experts. The complementary aspect of the solution can be best appreciated when one notes that the Judges would be more confined to the hearings themselves and that this would be combined with reinforced and more rigorous pre-trial case management.
These are the conclusions of the Judges of this Tribunal. The Office of the Prosecutor and the Registry concur with the analysis.
Admittedly, the Judges are aware that their proposals do not solve all the questions raised by the Tribunal’s operations. These were thoroughly analysed by the Expert Group and its recommendations have been incorporated into our considerations and, to a large extent, already implemented.
We realise that the implementation of our own proposals more specifically raises many questions. Nonetheless, we have attempted to explain our considerations about several questions. Some of these remain open.
The statutory implications were also considered. In this respect, you may believe that the plan is overly focused on the Tribunal’s productivity and it is true that productivity remains our greatest priority. However, other aspects relating to the Tribunal’s operation have not escaped our attention. Through two permanent working groups, the Rules Committee and the Judicial Practices Working Group, the Judges almost uninterruptedly attempt to improve the way they themselves operate.
I would moreover like to state that the proposed changes, if approved, would require an amendment to the Statute. I appreciate how difficult this would be, but an amendment was already made in 1997. I believe it legitimate for an institution in existence for almost seven years to make adjustments requiring a legal basis which amendments to the Rules of Procedure alone would not provide. Changes dealing with the creation of ad litem Judges might be used to introduce into the Statute several other modifications such as, for example, those dealing with additional Judges for the Appeals Chamber, compensation for persons unjustly detained or prosecuted or the suggestions which the Prosecutor proposed to you at this forum and which relate to compensation for the victims paid by seizing the revenues of the convicted accused. Subject to the opinion of my colleagues, I fully support them.
Lastly, I would like to add that the document presented to you is not budgetary. Such an analysis does not fall within the jurisdiction of the Judges. Nonetheless, mindful of the financial burden represented by the Tribunal, the Judges have made their own proposals, always keeping in mind this important aspect of the proposed reform. In this respect, as matters now stand, recourse to ad litem Judges seems to be the least costly solution when compared to the creation of additional Chambers composed of permanent Judges. It appeared especially clear that this solution would make it possible to set a reasonable expiration date for our work – at least in the first instance – and that, in budgetary terms, the time differential – permitting savings of almost ten years of mandate time – when compared to any other solution and, a fortiori, when compared to the status quo – needed to be considered.
Concretely speaking, I would ask that your Council, Mr. President, review all the problems linked to the operation of our Tribunal which is also yours. Not everything must be done immediately. I believe that, at first, and after some time for reflection to which I will make my own contributions if you so desire, the Statute might be amended in order to introduce the principle of the creation of ad litem Judges and mechanisms for selecting and assigning the Judges to cases. Recourse to these Judges would remain subordinated to the needs of the Tribunal.
Independently and aside from whatever you decide about my proposal, I am taking the liberty of asking you to consider the request for reinforcement of the Appeals Chamber which was presented by the Expert Group as an intangible and unanimous request from the Arusha Judges and those in The Hague. The mechanism of a single Appeals Chamber established in 1993, and which is still justified, will be able to continue to deal with the many cases before it only if it is reinforced in the way I have indicated.
In conclusion, the Judges are not unaware of the difficult and complex effort again being asked of the international community.
They feel that everything which has been accomplished to date argues in their favour so that the confidence placed in this unprecedented institution will be maintained. We can, of course, continue to make progress amongst ourselves and will continue to do so. However, one must not believe that justice as rendered in The Hague – which since 1993 has been bearing alone many of our hopes for the implementation of more permanent and universal justice – can be created and, especially, developed without a sustained effort on the part of one and all. The most recent observations of our institution, that of the Organization itself (the Expert Group) are very clear in this respect. "To the extent that there may have been expectations that the Tribunals could spring to life and, without going through seemingly slow and costly developmental stages, emulate the functioning of mature experienced prosecutorial and judicial organs in national jurisdictions in adhering to a high standard of due process, such expectations were chimerical."
By establishing this organ in 1993, your Security Council took an historic decision, one of the greatest challenges since Nuremberg: stating that crimes against humanity or genocide conceived and committed by man in the name of racist and xenophobic theses would not go unpunished. It redounds to your honour that you said and did this.
By taking up this challenge, the Judges at The Hague feel that, in their courtrooms, they have been able and are able, with impartiality, tenacity and conviction, to hear the cries of the victims and contribute in this way to ensuring that in the history’s memory the tragic events which occurred in this region are not forgotten, or what is more serious, distorted into a kind of revisionism which, as we know, represents a danger for democracies.
On behalf of my colleagues, I ask you to allow us to continue and to complete this exalting task.
The full text of the Report on the operation of the Tribunal is available on our Website, or can be obtained from the Public Information Services.
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