former Yugoslavia, to the preparatory Commission of the International Criminal Court.
Mr. President, Excellencies, Ladies and Gentlemen,
It is a very great honour for me to address this gathering of the Preparatory Commission of the International Criminal Court.
From the very outset, the members of the International Criminal Tribunal for the former Yugoslavia have shown a keen interest in the work stemming from the Statute and future Rules of the Court. Ms. Arbour, Ms. de Sampayo Garrido-Nijgh, Ms. McDonald and Mr. May have, in turn, each addressed your Assembly. Using their experience as Prosecutor, Registrar or Tribunal Judge, each contributed in his/her own way to the work you undertook to draft the Court’s basic documents. Several legal experts from the Office of the Prosecutor and the Tribunal’s Chambers were also present at the negotiations and answered your questions.
I do not intend to provide you with any technical or practical advice which would, in any event, be of only limited use to you at this final stage of the discussions. I wish only to pass on to you a very simple message which can be summarised in a few words: whatever rules of procedure and evidence you adopt, it is important that they be sufficiently flexible to allow the Judges to deal with the unexpected events to which the prevention of serious violations of humanitarian law falling within the jurisdiction of the Court will inevitably give rise.
I would ask your indulgence for a few moments in order to explain what I mean by providing you with a few examples drawn from our experiences.
Adoption of the Rules of Procedure and Evidence - a difficult and ambitious task
The United Nations Security Council entrusted to us – the Judges of the Tribunal – with the sensitive mission of adopting our Rules of Procedure and Evidence. Although in many respects this was a display of confidence in us, it also meant that we were confronted with a difficult and ambitious task which we had to complete in as little time as possible.
I say that this was a display of confidence because it vested in us an extraordinary legislative power, which has proved to be a vital tool for accomplishing our mission. We have been able to adapt our Rules to the ever-evolving demands of prosecuting and trying the accused. I will return to this later. We are, of course, well aware that this legislative capacity is enormous and open to criticism. Nonetheless, it goes without saying that we have always taken particular care to respect the most complex demands in respect of the protection of human rights as guaranteed in the international conventions.
The task facing us was difficult and ambitious because we had no precedent on which to rely when selecting and drafting our rules. This was, in fact, the first ever international code of criminal procedure since, as you are well aware, the Nuremberg and Tokyo courts, forerunners of the Tribunal, which had less clearly drafted rules. However, more fundamentally, like you today, we were faced with the difficulty of an abstract formulation of all the rules of procedure that we would need some day for implementing law as subject to change and evolution as is the nature of international criminal law.
Lastly, we had to select our Rules very quickly because, without them, the Tribunal, which had just been set up to contribute towards restoring peace in the Balkans, could not operate and meet the international community’s growing expectations.
On-going adaptation of the Rules of Procedure and Evidence to the evolution of judicial practice: a necessity
In July 1994, we decided on a relatively concise code. This means that a little more than 100 provisions governed the Tribunal’s entire organisation and operation. The rules were basically adversarial with control of the trial’s preparatory phase and hearings left to the Prosecutor and the defence under the supervision of the Judges.
We could not have suspected at the time that a few years later these rules would not be fully adapted to the needs of rapid and effective management of the cases we would hear one day. In the summer of 1998, of the 25 indicted accused, only two had been tried, and none definitively.
It was then that we adapted our Rules of Procedure and, since then, have reformed them gradually so as to cope with the fact that our proceedings were slow and cumbersome. For instance, we created the position of pre-trial Judge whose role is to ensure that the trial’s preparatory phase is properly conducted. We also redefined the duties of the Judge at trial by giving to him/her greater power over the legal proceedings. And we also put into place new provisions for the admission of evidence.
As regards this latter point, we implemented the recommendations of the group of experts mandated by the United Nations to evaluate our work.
Also from the perspective of adapting our system to our needs as best as possible – which are now the expression of the significant increase in our workload – and keeping always in mind the requirements of a fair trial, we recently reflected in general terms about the ways of trying all the accused persons who are and will be in detention within a reasonable time. This week, I will present to the permanent members of the Security Council the results of our reflection which appear in a Report sent to the Secretary-General on 12 May 2000.
The Judges considered several solutions and analysed all their respective advantages and disadvantages. They even thought about the possibility of some trials being held elsewhere, that is, trials in the courts of the United Nations member States, including those of the former Yugoslavia. However, even if that were to make case management more transparent vis a vis the local populations and help to achieve national reconciliation, such an approach would not assist in developing a unified international criminal justice system and, in any case, seems premature.
The Judges opted for the adoption of a flexible solution which would accelerate the trials without, however, upsetting the current procedures or infringing on the rights of the accused. This would be translated by an acceleration of the pre-trial phase of the cases through greater use of legal experts. In addition, the Tribunal’s ability to hear cases would be increased by the member States making available a pool of ad litem Judges. These Judges would be called upon to rule on cases determined by the evolution of our future needs. The system, which would require an amendment to the Tribunal’s Statute, should make it possible to complete our cases much more quickly and to finish our work in half as much time as we would need today.
Several lessons learned from the Tribunal’s experience
What I have said means that the Tribunal’s experience has taught us how difficult it was to project and to consider in the abstract, even by recourse to the most carefully formulated rules of procedure, all the difficulties that international sanction of war crimes and crimes against humanity can demand.
Admittedly, as the result of almost two years of remarkable legislative work, you have drafted Rules which are much more complete than our own . In many respects, they constitute requisite and laudable progress. I am, for example, thinking about the victim whose fundamental right to participate in the proceedings and to receive compensation for wrong suffered has now been recognised in law.
If, in the future, the Court were to be confronted with major problems, it could always turn to the Assembly of the Party States, as we today turn to the Security Council for voting in the measures required to solve such problems.
It is no less important to keep in mind the fact that, in some cases, the Judges will be in a better position than anyone else to react promptly and effectively to the difficulties inevitably arising from the management of their daily activities.
In conclusion, I wish to reiterate how important it is to adopt rules which are sufficiently flexible to allow the Judges themselves to fill in some of the gaps and to correct the imperfections which only judicial practice will bring to light.
Thank you for your attention.