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Statement By Judge Patrick Robinson, President, International Criminal Tribunal For The Former Yugoslavia To The Security Council

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

The Hague, 12 December 2008

Statement By Judge Patrick Robinson,  President, International Criminal Tribunal For The Former Yugoslavia To The Security Council

Mr. President, Your Excellencies, Ladies and Gentlemen,

I am honoured to address this distinguished body for the first time in my capacity as President of the International Criminal Tribunal for the former Yugoslavia (“ICTY”).  Mr. President, it is a special honour to address the Council during your tenure, given the particular importance of the Tribunal’s work for your country.

Today I present to you the tenth report of the President of the Tribunal on our Completion Strategy pursuant to Security Council resolution 1534 (2004) adopted on 26 March 2004.  It explains the concrete measures taken as well as the challenges faced by the Tribunal from June to November of this year in its efforts to implement the Completion Strategy.  Given my recent election on 17 November 2008, this report primarily reflects the achievements of the Tribunal under the leadership of my predecessor, Judge Fausto Pocar, and I would like to pay tribute to the significant progress made by the Tribunal under his tenure.  I will also take this opportunity to highlight a number of key issues, which are bound to gain greater significance during the next reporting period.   

The Tribunal has continued to work vigorously and diligently since the last reporting period, and as a result, we are now close to completing our mandate.  We have nevertheless experienced delays due to a number of circumstances beyond our immediate control.  First, delays have resulted, and further delays may be expected, from the late arrest of fugitives.  In this regard, I refer to the case of Stojan Župljanin, a recently arrested fugitive whose case was found suitable for joinder with that of Mićo Stanišić.  Although the joinder of these cases has had the positive effect of cutting the costs of running the Župljanin case as a separate trial, it has also delayed the start of the Stanišić trial, which was trial ready at the time of Župljanin’s apprehension.

Another example is the case of Vlastimir Đorđević, who was still at-large when the multi-accused trial of Milutinović et al. began in 2006.  If Đorđević had been surrendered earlier, he could have been tried along with his six co-accused; now, he must be tried alone, and dozens of witnesses will have to be brought back to the Tribunal to give evidence again in his case.

If fugitive Mladić is arrested now, his case may be joined with that of Karadžić.  However, that joinder would invariably delay the start of the Karadžić trial, which is currently being prepared for trial.  On the other hand, any further delay in Mladić’s arrest will likely result in the need for separate trials.

The case of Goran Hadžić, the other remaining fugitive, is not earmarked for joinder with any other case.  An important consideration that you should be aware of is that, if he is arrested now, the Tribunal could avoid the need of retaining the capacity of trying a high-level accused in the Tribunal’s residual mechanism.  I must emphasise that the impact of late arrests on the orderly conduct of the Tribunal’s business should not be underestimated, and I therefore urge the international community to focus its efforts on securing the immediate arrest of the remaining fugitives as a matter of urgency, in accordance with the obligations of States under Article 29 of the Tribunal’s Statute.  The international community must recognise the risks posed to international justice if these fugitives are not apprehended and brought to justice.  

Other trials have suffered delays resulting from difficulty in securing necessary evidence from States in the region of the former Yugoslavia.  Unfortunately, in this reporting period, delays have also been occasioned in the Perišić case and the Gotovina et al. case.  In the last reporting period, President Pocar had occasion to report to you Serbia’s failure to cooperate in relation to the Milutinović et al. case, which involves six accused, and the service of a subpoena to a witness called by the Chamber.  I note that the rendering of the Judgement in the Milutinović et al. case, initially scheduled for September 2008, is not now anticipated to be delivered before the 12th of February 2009.  While it is regrettable that the anticipated date of delivery of Judgment in that case will not be met, it must be borne in mind that estimation of the length of a trial, including the delivery of a judgment, is more an art than a science.  My consultations with the Presiding Judge on that multi-accused case, Judge Bonomy, indicate that the delay arises from the difficulty of issues to be resolved and the concern that the current hectic pace of the deliberations will impact on the fairness of the trial.  That hectic pace results from the exigencies of the Tribunal’s Completion Strategy.  However, the Completion Strategy, while requiring the Tribunal to complete its cases as expeditiously as possible, does not anticipate that principles of fair trial and the rights of the accused should therefore be sacrificed. It has thus become necessary to seek an extension of the terms of Security Council resolution 1800 (2008) to enable the three ad litem judges appointed to this case to finish their work.  You will recall that resolution 1800 authorised the Secretary General to appoint additional ad litem judges upon request of the President of the Tribunal to a maximum of sixteen at one time, returning to a maximum of twelve by 31 December 2008. The extension now sought is for a period of 43 days only, or 32 days if account is taken of the official court recess period.  

While the delays generated by these matters are a cause for concern, it is important to bear in mind the International Tribunal’s remarkable achievements to date, which far surpass that of any other international or hybrid court, both in respect of the number of accused tried and in its contribution to the development of international criminal law.  Of the 161 persons indicted, proceedings have fully concluded against 116 of them.  Considering the complexity of our cases, the breadth of our indictments, and the large numbers of victims and witnesses, the completion of such a high number of cases since the establishment of the Tribunal by the Security Council is a clear demonstration of the efficiency of the Tribunal’s proceedings and of its steadfast commitment to the completion of its mandate.  At this point in time, only five cases remain to be started, and four of these cases involve late arrests (Tolimir, Đorđević, Župljanin, and Karadžić).  The fifth case, Stanišić and Simatović, has been delayed due to the ill-health of one of the accused.

In terms of judicial activities, we are currently running seven trials simultaneously in our three courtrooms with our eighth trial, Đorđević scheduled to begin on 15 December 2008.  These trials involve a total of 27 accused, with Judgement anticipated to be rendered shortly in one of these cases, that of Milutinović et al.  involving six accused.  As detailed in the report, the Tribunal has continued to proactively seek new solutions to ensure the speedy completion of trials in full compliance with standards of due process.  For instance, in order to take advantage of a gap in the trial schedule after the proceedings in the Stanišić and Simatović case had to be adjourned in May 2008, we commenced the Lukić and Lukić trial in its place on very short notice and exceptionally as President I preside over the proceedings in that case.

The Tribunal has also continued to utilise a host of procedural innovations to streamline its proceedings, such as the admission of adjudicated facts and evidence in writing, the reduction of the scope of indictments, and the imposition of time limits on the presentation of the prosecution and defence cases.    

The efficiency of the International Tribunal’s proceedings also results from the steadfast commitment of its Judges and staff.  Court hearings at the Tribunal run from 8:30 in the morning to as late as 7:10 o’clock in the evening.  In this respect, special mention must be made of the extraordinary sacrifice made by some Judges who due to the exigencies resulting from a shortage of Judges and time constraint, are obliged to sit on two cases at the same time. They are usually ad litem Judges.  But there is one permanent Judge who presides over two very complex cases at the same time.  These Judges sit on one case from 8:30 a.m. to 1:45 p.m. and on a second case from 2:15 p.m. to 7:00 p.m with less than half an hour for lunch.  Given their long hours sitting in court, other judicial work must be completed late into the evening and over the weekends.  Further, due to the long court hours, these Judges have little to no opportunity to attend to their personal matters during the day.  The overall impact on the Judges of having to sit in court close to ten hours a day does take its toll, but these Judges and others before them have taken on this responsibility with professionalism and enthusiasm, and their commitment should be fully acknowledged as exemplifying a remarkable dedication to the work of this Tribunal.  A number of other Judges are actively engaged in completing a trial in one case, while preparing another case for trial.  This is a demanding work load, that demonstrates these Judges’ commitment to meeting Completion Strategy targets.  The international community owes a huge debt to these Judges and their staff who clearly place the needs of the International Tribunal and the dictates of the Completion Strategy far beyond their own comfort and their entitlement to reasonable working hours.

The Appeals Chamber has been equally efficient, delivering final judgement in four appeals, including three ICTY cases—Orić, Strugar and Martić—, one contempt judgment, and one review decision.  There are currently six appeals from Judgement and one request for review pending before the ICTY Appeals Chamber.  Hearings in the Mrkšić et al., Haradinaj et al., and Dragomir Milošević cases will be conducted in early 2009.  

While the Tribunal is still on track to complete the majority of its trials during 2009, a number of trials will continue into the first part of 2010.  As explained previously, all of these trials involve late arrests except one, the case of Prlić et al., which has suffered delays due to problems associated with the sheer complexity of those proceedings.  However, that Chamber is taking all available measures to expedite the proceedings in full compliance with principles of due process.  The later completion of trials will also affect the dates for appeals.  While it is still feasible that most appeals can be completed in 2011, it is likely that a small number of appeals will spill over into 2012.  .  

While we have achieved unparalleled efficiency in the conduct of our proceedings, these results can only be maintained by a proactive retention policy for key staff and Judges, which has been lacking thus far.  The examples I have just given you of the hard work and commitment of our teams demonstrate how important it is that we keep our most dedicated Judges and staff in order to maintain the high standards we have set.  However, I must stress that we have to remain vigilant that the closing stages of the Tribunal do not witness a diminution of the high standards we have set over the years.  There is a real danger that, if measures are not taken now to provide staff with incentives to remain at the Tribunal in its closing stages, we may lose our highly and uniquely qualified legal staff.  I therefore ask you to help me ensure that we maintain our commitment to the work of the Tribunal, which we must all finish together.

Another important matter that I intend to pursue and strengthen during my tenure is our partnerships with local judiciaries.  As you know, a key component of this cooperation was the referral of 13 accused to jurisdictions in the former Yugoslavia, ten accused having been transferred to Bosnia and Herzegovina, two accused to Croatia, and one Accused to Serbia.  Pursuant to Rule 11 bis, the Referral Bench continues to monitor referred cases and is thus far satisfied that they are being conducted in full compliance with international norms of due process.  

I note that the Appeals Chamber ultimately decided not to refer one case, that of Lukić and Lukić.  I see the Appeals Chamber decision overturning this case as a splendid example of the system for the administration of justice at the Tribunal working well at all levels.  First, the case was sent to the Referral Bench to determine whether the accused were at the level to warrant their case to be referred to local courts. This is required by the Security Council resolutions 1503 and 1534.  The Referral Bench determined that the case should be referred. But one of the accused appealed that decision, arguing that he was of too senior a level for his case to be referred to the local courts and that he should be tried at the Tribunal.  That appeal was allowed and his trial is now taking place.  This is an illustration of all facets of the Tribunal’s system of justice, which obviously includes the rights of the accused, doing their tasks efficiently and fairly.

As has been repeatedly emphasised, judges and prosecutors in the former Yugoslavia have a crucial role to play in the development of a peaceful society based on the rule of law.  For this reason, they must continue to receive assistance and support, which will enable them to continue the important work that the Security Council began with the establishment of the Tribunal.  Toward this end, the Tribunal is actively involved in capacity-building efforts in the former Yugoslavia, focusing on a number of key areas, including the facilitation of trial coverage by the local media, direct community outreach by its officers on the ground, and capacity-building efforts with national judicial institutions addressing war crimes.  For example, our local offices have organised training programmes, which, while primarily directed toward lawyers, have also targeted other professionals involved in war crimes proceedings, including witness support staff.  Very recently, several Judges met in Belgrade with their counterparts from domestic judiciaries and shared their expertise in trying war crimes cases.

Additionally, we have undertaken a number of projects that seek to identify best practices that may serve other domestic or international criminal justice institutions handling complex war crimes proceedings.  The first such project consists of a compilation of our best practices, undertaken with the assistance of the UN Interregional Crime and Justice Research Institute, which will be published and disseminated shortly.  We are also working in cooperation with the Organisation for Security and Cooperation in Europe to assess our current outreach activities and training programs in the former Yugoslavia to identify best practices.  The objective of this assessment is to facilitate the creation of capacity-building programmes that meet the needs of domestic courts addressing war crimes cases.

It also should be mentioned that a recent amendment to the Rules of Procedure and Evidence has allowed parties in a domestic jurisdiction, like the Prosecutor at the Court of Bosnia and Herzegovina, to directly petition the Tribunal for access to confidential materials that may assist in a domestic case.  This process, although adding to the work of the Tribunal, is yet another example of how the Tribunal is trying to implement the Security Council’s directions that the Tribunal contribute to the work of national jurisdictions to prosecute alleged violations of international humanitarian law.  Yet another initiative involves a memorandum of understanding recently entered into by the Tribunal with the District Court and the Office of War Crimes Prosecutor in Belgrade, Serbia, granting the Court and Prosecutor’s Office electronic access to all public documents contained in the judicial data base of the Tribunal.

All of these initiatives are part of our efforts to ensure that the long lasting legacy of our work will continue to grow in importance as we near completion of the cases on our docket.  Another increasingly urgent matter is the devising of an appropriate mechanism to address residual issues after the completion of our cases, which is a key issue currently on the agenda of the Security Council Working Group on Ad Hoc International Tribunals.  In order to assist the Working Group in this complex task, the Tribunals issued a joint report in September 2007, followed by a number of additional clarifications, and invited the Working Group to visit the premises of the Tribunal and meet with the its Judges and staff.  This visit provided the members of the Working Group with the opportunity to gain important insights into the daily work of the Tribunal and hear the recommendations of Judges and staff on the nature and functions of the future residual mechanism.  The members of the Working Group met not only with senior staff, but also with Associate Legal Officers in order to truly “get a feel” for the daily work of the Tribunal.

Important developments have also taken place in relation to the archives issue, with the submission of a report by the Advisory Committee on Archives established by the Registrars of the ICTY and the ICTR.  The report addresses a number of issues, including the location, public access, and security of the archives of Tribunal, as well as preservation of the Tribunal’s records.  It has now been transmitted to the Security Council Working Group on the ad hoc Tribunals for its consideration.   Additionally, the Tribunal has provided the Working Group with a paper detailing staffing scenarios for the residual mechanism depending upon the level of judicial activity of which it may be seized.

Mr President,

I represent an institution that, as the first international Tribunal since the International Military Tribunals of Nuremberg and Tokyo, has been the most significant actor in the development of international criminal law and the enforcement of international humanitarian law.  At the procedural level it has judiciously used its rule making power to devise a comprehensive framework of rules of procedure and evidence that have already become the template for use in other kindred tribunals.  These rules achieve the twin objectives of expeditiousness and fairness.  At the substantive level the Tribunal has, more than any other body, contributed to the development of a corpus of law that has eliminated impunity and entrenched the doctrine of individual criminal responsibility in the field of international criminal law.  Few would have imagined, only twenty years ago, that it would have been possible to bring before an international tribunal high-level individuals, including Heads of State, accused of the most heinous crimes. I represent a court that has tried more persons for breaches of international humanitarian law than any other judicial body.  I also represent an institution that, conscious of its responsibilities to the region, has worked strenuously to ensure that local judiciaries have the capacity to try war crimes cases in accordance with the highest international standards.  I therefore represent an institution that can be justifiably proud of its achievements.  Nonetheless, I address you today humbled by the magnitude and complexity of the pioneering role of the Tribunal and deeply concerned that as the Tribunal's work draws towards its final stages it should remain sufficiently resourced to discharge its mandate. I therefore implore you today, members of the Security Council and of the international community: Give the Tribunal the support it needs to enable it to discharge its historic role.

International Criminal Tribunal for the former Yugoslavia

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