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Statement by Judge Theodor Meron, President, International Criminal Tribunal for the Former Yugoslavia, to the Security Council 13 June 2005

Press Release PRESIDENT

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

The Hague, 13 June 2005
TM /MOW/976e

Statement by Judge Theodor Meron, President, International Criminal Tribunal
for the Former Yugoslavia, to the Security Council 13 June 2005

Mr. President, Your Excellencies,

It has always been a great honour for me to address this eminent gathering. I feel even more honoured today as it is being presided by the representative of France.

Your country, Mr. President, has left a deep imprint on the history of democracy and is considered to be the homeland of human rights. As President of the International Criminal Tribunal for the former Yugoslavia, I must draw attention to the fact that France has also actively contributed to the establishment and development of the Tribunal and plays a major role in the fight against impunity.

Mr. President, as a representative of a country governed by "civil law", you will no doubt appreciate the gradual evolution of our Rules of Procedure. These changes, dictated by the constant desire to improve the efficiency of the proceedings while not sacrificing the necessity to protect the rights of defence, have significantly modified the role of the judge. The judge has gone from a neutral adjudicator of the "common law" model to an active player in both the pre-trial and trial proceedings. In the debates that came before and accompanied this evolution, French law and judicial practice have often been a source of inspiration.

This is the third report that I have presented to you since the adoption of Council resolution 1534 in 2004, which requested the President and Prosecutor of each ad hoc Tribunal to provide the Council with assessments every six months detailing the progress made toward realization of their respective Completion Strategies. The written report is now before you in document S/2005/343. Through both the narrative and the annexes, it is intended to provide you with a realistic picture of how the Yugoslavia Tribunal is grappling with the challenge of meeting the goals of the Completion Strategy. I shall try in my oral statement not to repeat the details of the report but rather to highlight its salient features and provide you with an update of the information provided therein.

Since the last report submitted in November 2004, the Tribunal’s three Trial Chambers and one Appeals Chamber have been working at maximum capacity, the Trial Chambers handling six cases simultaneously. That means, on the average, that six different cases are being tried by different benches of three Judges each. The written report indicates that two Judgements have been issued since the last report and predicts that by the end of this November, four additional Judgements will have issued in cases involving an additional seven accused. That means of course that by the end of this year, another batch of four cases will begin. The pace is unrelenting.

The new report also highlights the fact that 22 new accused have arrived at The Hague since the last report – meaning that there are now 50% more people awaiting trial than the last time I appeared before the Council. That dramatic increase obviously has significant implications for the Completion Strategy.

With those two critical preliminaries out of the way, please allow me, Mr. President, to survey the major features of the report and in particular to emphasize the relevant updates contained therein.

With regard to internal measures taken to implement the Strategy, we have adopted significant amendments to our Rules of Procedure and Evidence, including one relating to "Judgement of Acquittal" (Rule 98bis), which mandates oral rather than written submissions. I am happy to report that this amendment has already had a salutory effect on speeding up our procedures without sacrificing defendants’ due process rights. Before the amendment, Rule 98bis proceedings would likely have taken up several months of the Trial Chambers’ time.

I have also appointed two Working Groups of Judges for speeding up trials and appeals. The Working Group on trials (chaired by Judge Bonomy) has been exploring ways to speed up trials by, among other alternatives, altering the caseload, finding additional courtroom space, and streamlining our pre-trial and trial procedures. These modalities were the subject of an in-depth and wide-ranging discussion among all the Judges just a week ago today. The Working Group on speeding-up appeals (chaired by Judge Mumba), has focused on the rules governing the admissibility of additional evidence at the appeals stage, as well as on the procedures for translating decisions and judgements for appellants – which can have a major impact on the timely disposition of appeals. By the time the plenary of Judges meets in July, I expect that both Working Groups will have presented concrete and actionable recommendations.

Turning now to ad litem Judges, Mr. President, I very much appreciate the adoption by the Council of resolution 1597 (2005), which amended the Statute of the Tribunal to allow for the re-nomination and re-election of ad litem Judges. Nonetheless, I am very concerned about the lack of a sufficient number of nominations. This has significantly delayed the election of a sorely needed new roster of ad litem Judges. For new trials to be assigned to panels of Judges with no delay, it is absolutely imperative that the President have at his disposal a roster of distinguished jurists who are willing and able to serve the Tribunal, often on quite short notice, at this critical juncture. I appeal to all States that have not yet submitted nominations to nominate experienced jurists for this important position. It provides a unique opportunity for individuals to make a difference in advancing the cause of international justice.

I now come to a key component of the Completion Strategy: the referral of cases involving intermediate and lower rank accused to competent national jurisdictions. I should particularly like to highlight the opening of the War Crimes Chamber of the State Court of Bosnia and Herzegovina (BiH) on 9 March 2005. After much time and effort devoted to making this event a reality, the Sarajevo War Crimes Chamber is now in a position to accept cases which the Tribunal’s Referral Bench may decide to refer to the authorities of BiH. The Government and people of BiH, the High Representative, donor Governments and the international community as a whole have made this possible, and the Tribunal and its staff are pleased to have been associated with this endeavor.

The report notes that so far, the Prosecutor has filed 10 motions involving 18 accused for such referrals under Rule 11bis of our Rules of Procedure and Evidence. In enclosure V to the report, you will see that of those 10 motions, the Referral Bench has granted the motion in one case, referring the case to Bosnia and Herzegovina for proceedings before the Sarajevo War Crimes Chamber of BiH. This transfer must await, however, the disposition by the Appeals Chamber of filed appeals. You will note that the Referral Bench has already held hearings in six other cases involving 13 accused.

Thus, future decisions on the Prosecutor’s motions to refer cases to competent national jurisdictions are expected in the very near future. In addition, as the Prosecutor points out in her assessments, she is considering filing additional Rule 11bis motions for referral.

As for co-operation of States in the region with the Tribunal, as I have already indicated, there has been a dramatic increase in the number of indictees and fugitives transferred to the Tribunal, mostly thanks to the efforts of the authorities of Serbia and Montenegro, sometimes together with authorities of the Republika Srpska (RS). The impact of these new arrivals will be addressed later in my statement.

With regard to Croatia, while cooperation remains good in some areas, it is of major concern that the last remaining "stumbling block" to achieving full cooperation with the Tribunal is the continuing failure on the part of authorities in Croatia to apprehend and render to The Hague Ante Gotovina.

Concerning the RS, other than assistance with regard to the arrival of some indictees and fugitives, co-operation remains woefully lacking in other areas, in particular the lack of any serious attempts to locate and arrest such notorious fugitives as Radovan Karadzic and Ratko Mladic.

Cooperation has improved with Serbia and Montenegro with regard to the arrival of indictees and fugitives. During a meeting and in-depth discussion with Prime Minister Kostunica of Serbia and President Tadic of Serbia this March, I strongly encouraged them both to ensure the arrival of the remaining fugitives thought to be in Serbia and Montenegro or the RS. The largest impediment on that front is the continuing failure to apprehend and render to The Hague Ratko Mladic.

Allow me to add, Mr. President, that it goes without saying that when and if these three principal fugitives move across borders to avoid apprehension and arrest, the obligation to pursue and arrest them applies in full to the authorities of their temporary "sejour." This also highlights the need for Governments in the region to redouble their efforts for judicial cooperation between their own authorities. I have consistently maintained that if the voluntary surrender of accused war criminals is not forthcoming, the international obligation of the States of the region is to arrest and transfer the accused without delay.

Distinguished members of the Council, as I have said many times, the Tribunal will not have fulfilled its historic mission – and it will not close its doors – until Karadzic, Mladic, and Gotovina have been arrested, brought to The Hague, and tried before the Tribunal in accordance with the full procedural protections recognized by our jurisprudence.

I now turn to the updated prognosis regarding implementation of the Completion Strategy. In my last assessments, I estimated that by 2008 the Tribunal could complete the trials of all accused in our custody at that time (including Gotovina if he arrived before 2006), but warned that any further growth of the trial docket would make achieving that target date entirely dependent on some cases being disposed of by guilty pleas. I also added that if new indictees or fugitives arrive and require separate trials, "it will become likely that it will take at least until the end of 2009 to complete the trials of all accused within the custody of the Tribunal."

As is evident from the report before you now, some of these factors bearing on the implementation of the Strategy have come to pass and others must be addressed. Allow me to take them up one by one:

First, the number of new indictments. As the report indicates, seven new or amended indictments have been submitted since my November report. Five of the indictments will require new, separate trials. For two other cases involving five accused, I understand that the Prosecutor is considering whether to move the joinder of these cases with pre-existing cases.

Second, the number of Rule 11bis motions for transfer granted. As I have just mentioned, one of the 10 outstanding motions has been granted by the Referral Bench and is currently on appeal. Six others have been the subject of hearings. While it might be anticipated that the Referral Bench will render more decisions by the end of the month, it would be neither possible nor appropriate for me to speculate about the ultimate disposition of those motions.

Third, the number of guilty pleas. On that score, I need only mention that there have been no new guilty pleas since my last report.

Fourth, the arrival of new indictees and fugitives. With the arrival of 22 new indictees or fugitives, our projections must be adjusted as I warned in my last report to the Council. As of now, we are working on the assumption that at least 10 of the new accused will be the subject of seven new, separate trials. (Five trials will involve one individual accused; one will involve two accused; and another, three accused.) Of the remaining 12 accused, the Prosecutor has already moved to join three to a pre-existing case. I understand she is also considering moving the joinder of seven accused to another pre-existing case, which would result in a "mega case" of eight or nine accused. Finally, two new arrivals are the subject of a Rule 11bis motion for referral to a competent national jurisdiction. I cannot of course predict how Trial Chambers will decide on motions for joinder, or indeed anticipate the Prosecutor’s ultimate decision about whether to move for joinders in the first place.

Turning to the 10 fugitives who have still not arrived and the impact on the caseload should they arrive: six of the fugitives are on indictments with co-accused already in custody, and therefore new, separate trials for them would not be required. Meanwhile, the Prosecutor is considering the suitability of two others for joinder. And the arrival of Karadzic and Mladic would entail a new, joint trial, provided they arrive more or less contemporaneously. We know that their trial will be lengthy and complex, but it is impossible to know how it will impact the timeline for the overall situation without knowing when they arrive and when the trial could begin for both the Prosecution and defence counsel. Obviously, for purposes of planning and enhancing the prospects of the Tribunal’s completing its work sooner rather than later, the earlier they have been apprehended and transferred to The Hague, the better.

Fifth, the timing of the arrivals of remaining indictees and fugitives. This factor has a critical influence on the Completion Strategy, but it simply cannot be predicted with any degree of certainty. While it might be possible to estimate roughly the length of a trial prior to the arrival of an accused, we have to wait until the accused is actually in The Hague to assess a variety of factors – the readiness of both parties to proceed, whether joinder is possible, and the availability of courtrooms and Judges to hear the cases.

Sixth, the disposition of joinder motions. As I indicated earlier, the Trial Chambers are seised of several motions by the Prosecutor for joinder of cases, and she is considering filing further such motions. Decisions are expected soon on the pending motions. If such motions are granted, there could be trials of up to eight or nine accused. Of course, such joinders are not a panacea, as additional time will be required to dispose of a given case, but they would clearly save time when compared to having separate trials for each of the accused. As my report indicates, I welcome any such major time saving tactic which is consistent with due process and the rights of the accused.

Allow me, Mr. President, to mention another matter of importance. While the arrival of indictees and fugitives obviously complicates our Completion Strategy timetable, it goes without saying that the arrival of alleged war criminals can only be applauded. Persons accused of having committed war crimes must be brought to justice and cannot be allowed to hide, hoping that the Tribunal will close its doors before they are found and arrested. The arrival of such a substantial number of accused moves the Tribunal further to the completion of its mandate: prosecuting those accused of committing war crimes in the former Yugoslavia.

Coming to the current estimate, I should preface my remarks with a cautionary word: any estimates are necessarily tentative, since they can only be based on assumptions subject to unpredictable factors. I could indicate, for instance, that if all possible Rule 11bis motions are granted, if all possible motions for joinder are granted, if no new fugitives arrive, and if no guilty pleas are entered, the Tribunal could complete its current caseload sometime in 2009. But all of those "ifs" indicate that these estimates are based on assumptions that evolving reality will modify.

For example, if the Tribunal’s three most notorious fugitives – Karadzic, Mladic, and Gotovina – are arrested in the near future, their cases would extend the time necessary to complete trials an additional four to seven months, given the possible joinders. As a purely independent matter, if half of the pending and anticipated 11bis motions are denied, the trial completion date would slip an estimated nine months. Further, if one of the large joinder motions – the so-called "mega case" -- is denied, it could add another three months to the time to try them all. Any combination of other contingencies – health-related trial interruptions, guilty pleas, etc. – could also alter the outcome.

Knowing what we know now, the most I can indicate is that trials will necessarily have to be conducted in 2009, and will most likely continue until the end of that year. When the next six-monthly report is presented, the President should be able to provide an assessment based on more factual predictions. It is hoped that by next November, current and possible Rule 11bis and joinder motions will have been disposed of. Arrivals of additional indictees will provide more data on the caseload and target dates. In addition, the Judges would have considered recommendations for speeding up both trials and appeals.

Before concluding, allow me to raise another matter mentioned in my report: the possibility of adding a fourth courtroom. Such an additional courtroom would be very advantageous in my view and would make it possible for us to speed up trials and appeals. The report indicates the advantages to be derived from adding a fourth courtroom. Advantages would arise whether we maintain the existing six trials a day, or – even more – if it were decided to allow three additional ad litem Judges to serve so that a seventh trial bench could be established to help deal with the backlog. I wish to stress that I would not request the cost of constructing such a courtroom to be borne by the United Nations budget, but would rather approach possible donors who would see the long-term advantage of expediting trials and appeals by increased courtroom capacity. This is a matter which we have just begun to explore and no doubt the President will return to the Council on this subject, once the possibilities become clearer. We would welcome any comments which members of the Council might have on the matter and will count, as always, on the guidance and leadership of the Council as we pursue this question.

Before I conclude, Mr. President, let me allude to the approaching tenth anniversary of an atrocity which in its character and magnitude was reminiscent of those committed during World War II. This July will be 10 years since the atrocities – the genocide – at Srebrenica. Let me quote the following from the 19 April 2004 Krstic Appeals Chamber Judgement:

"By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity. The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims. The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act." (para. 37 of the Judgement)

It is a shame that Karadzic and Mladic are still at large, 10 years after Srebenica.

As we approach that commemoration, it is worth emphasizing that it is to the Security Council that the international community, the public and especially victims of atrocities turn for leadership and justice for redress of atrocities. The Tribunal is one manifestation of the Council’s commitment to international justice, the rule of law, and the struggle against impunity, as well as to peace and reconciliation. We are there to carry out the mission you entrusted to us.

We commit ourselves to re-double our efforts to see that justice is done for victims and accused alike; that due process is honored; that accused war criminals are not treated with impunity, but rather are afforded a fair trial. With the support of the members of the Council, I am confident we can succeed in our difficult task in the remaining years of our mandate.

Mr. President, I would now like to make a statement in my personal capacity. Over the years, the Security Council has played a critical role in using its power and prestige to resist impunity, to establish individual criminal responsibility for perpetrators of atrocities, and to impose sanctions on those who violate human rights and humanitarian norms. The Council’s decisions, taken under Chapter VII, to establish the ad hoc tribunals in 1993 and 1994 – half a century after Nuremberg – were seminal moments. They led not only to the trial and punishment of senior figures responsible for atrocities in the Balkans and Rwanda, but also to the creation of a whole new corpus of jurisprudence on international criminal law, procedure and evidence, a body of law that will be the historic legacy of the ad hoc tribunals. Of course, much remains to be done to combat impunity outside of the areas covered by the jurisdiction of the ad hoc tribunals. The Council has the power and the responsibility to do all it can to advance these goals. I see the Council’s referral - under Chapter VII - of the situation in Darfur to the International Criminal Court as a critical next step in the historic evolution of the anti-impunity principle. The referral underscores the world community’s resolute commitment to the principle that the perpetrators of such crimes against humanity will be held to account. It also demonstrates the potential of Chapter VII and its beneficial uses in advancing accountability in all parts of the world. Speaking as a scholar of international humanitarian law, I congratulate the Council for its wise action this spring.

Finally, Mr. President, distinguished members of the Council, in mid-November my Presidency of the ICTY will come to an end and I will continue as an Appeals Chamber Judge. This is thus my last appearance before the Council as President. May I take this opportunity to express to you and to all the members of the Council my deep gratitude for your steady support of the Tribunal and of international justice, and for the help you have generously given me in the performance of my duties.

Thank you.



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