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Address by Carla del Ponte, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council

Press Release . Communiqué de presse

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


The Hague, 30 June 2004



Please find below the full text of the statement made by Ms. Carla Del Ponte, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, to the United Nations Security Council on 29 June 2004.

Mr. President, Excellencies, Ladies and Gentlemen,

It is a great honour for me to address once again the Council to present new developments at the ICTY, and the key challenges that the Office of the Prosecutor faces in the implementation of the completion strategy, pursuant to paragraph 6 of Resolution 1534.

On 21 May 2004, President Theodor Meron transmitted to the Council an assessment of the progress made by the Tribunal in the implementation of its mandate and of its completion strategy. As one of the organs of the Tribunal, the Office of the Prosecutor contributed and reported its continued efforts to fully and timely implement the completion strategy that we defined in 2002 and
that was subsequently approved by the Council, notably in Resolution 1503.

The Tribunal’s completion strategy relies on three major dates, the first concerning the conclusion of all new investigations by the end of this year 2004. This date thus entirely relies on the activities and efforts of the Prosecutor and her Office. I am therefore pleased to report that this first major milestone will be reached as planned. By the end of this year, the
investigation of our outstanding targets will be complete and the last of our new indictments will be presented. In furtherance of my commitment to complete these investigations, we have spared no efforts in streamlining the investigations and focusing them on only the most senior leaders responsible for the worst and gravest crimes. Since my written assessment, two indictments were
confirmed. One of them will be presented in a sealed form to the relevant authorities very soon. The other indicts a Croatian General, Mirko Norac, for crimes committed in 1993 against Serb civilians in the so-called Medak pocket. It is our intention to request that this case be referred to Croatia.

Not all of our enquiries resulted in indictments. We continually reviewed the strength of the evidence in each case. In January 2004, I decided that the investigations concerning seven targets would be suspended, not indicted before the Tribunal, and eventually referred to domestic local prosecutors in the former Yugoslavia. Investigations concerning another two high-level suspects
were discontinued after their death. Furthermore, we decided not to continue the investigations concerning two other targets due to insufficient evidence. As a consequence, to date, we are completing six remaining investigations involving a maximum of 11 targets. On this basis, a maximum of six new indictments could be prepared before the end of 2004, for submission first to the
Bureau for review of the seniority of the suspects, and then to the Judges for confirmation. These indictments could result in a maximum of four new trials only, given the possibility of joining some of the indictments.

With this major achievement, the completion of all new investigations in sight, we are now in a better position to plan the rest of our activities. The Tribunal knows exactly how many cases will have to be tried. We remain at the disposal of the President, and the Judges to schedule the remaining trials. The next completion dates foreseen by the strategy to achieve the Tribunal’s
mandate are 2008 and 2010: all trials should be completed by 2008 and all appeals should be reviewed by 2010. The Office of the Prosecutor remains strongly committed to meeting these two objectives. However, unlike the conduct of investigations over which the Prosecutor has a large measure of control, the main responsibility for the scheduling, administration and conduct of trials and
appeals extends well beyond the Prosecutor. Although my Office will continue to take all possible measures to further streamline our trial and appeals activities, notably by strictly limiting the number of charges and of prosecution witnesses, we must stress that we do not control a number of factors such as the timely arrest of fugitives, the appearance of witnesses or the emergence
of crucial evidence, as we rely on States to obtain these. As far as the Office of the Prosecutor is concerned, a number of measures have already been taken to improve the efficiency of the prosecution in the preparation and presentation of cases. They include significant procedural and technological improvements, and have been developed in the written assessment submitted to you.
Great savings of court time have been achieved by guilty pleas, obtained through the active involvement of my Office. We remain open to explore with the defence the possibility of accused persons pleading guilty to all or some of the charges against them. However, ultimately, the Office of the Prosecutor can only comply with the Chambers’ instructions on scheduling cases and has
obviously no control over the swift conduct of the Defence case or the writing of judgements. Nevertheless, we are actively collaborating with the President, the Chambers and the Registry to update the trial calendars for the coming years.

The completion strategy is twofold. First, the International Tribunal must try those bearing the gravest responsibility in the crimes, including the high-profile fugitives, and thus complete its activities in a swift and efficient, yet fair and impartial, manner. Second, the domestic jurisdictions of the territories of the former Yugoslavia must be reformed and equipped to complete
the work of the International Tribunal and take over the remaining cases.

The written assessment submitted to the Council highlights three types of cases identified to be transferred to domestic courts. The first category concerns ICTY indicted cases that could be transferred pursuant to Rule 11 bis of the Rules of Procedure and Evidence. In strict adherence to the guidelines provided by Resolutions 1503 and 1534, 12 cases concerning 22 accused have been
identified for possible transfer to domestic jurisdictions, subject to the Judges approval. All those concerned held low- and mid-level positions in their respective hierarchy, and were predominantly indicted in the early days of the Tribunal.

The transfer of mid- and low-level cases to domestic jurisdictions would free court resources for senior accused leaders. Efforts have yet to be invested in the establishment of domestic jurisdictions capable of trying war criminals. The support of the international community, including regional organisations like the OSCE, is of paramount importance in this process.

For the time being, following the guidelines set by the Security Council, I do not actively consider the possibility of transferring any high-level cases. However, the Council must be aware that, even if the Chambers consider positively all 12 requests mentioned before, this may not be enough to meet the 2008 deadline. We will continue to do our utmost to meet this target

The Council should also take into account that the completion strategy may be resented by the victims, mainly because their trust in domestic courts is very limited. Following my recent visit to Bosnia and Herzegovina, I received letters from victims’ associations expressing their grave concern and even disagreement in connection with the completion strategy. They asked me to pass
along these letters to the members of the Council, which I would like to do.

Mr. President, Excellencies,

Allow me to focus now on the three key challenges to ensure that the ICTY mandate is properly and successfully achieved. These challenges are: the arrest of fugitives, our finance, and States cooperation issues.

The first key challenge is the failure of the relevant authorities, in particular in the Republika Srpska in Bosnia and Herzegovina, and in Serbia and Montenegro, to arrest or obtain the surrender, voluntarily or through coercive measures, of those 20 indicted who are still at large. This figure does not include two accused whose indictments and arrest warrants are sealed.

The failure to obtain the arrest of fugitives has a number of consequences on the completion strategy. It prevents the Tribunal from joining cases that could be tried together. It therefore obliges to conduct separate trials on the same crime base, which amounts to substantial losses of court time. For instance, had Radovan Karadzic been arrested early this year, it would have been
possible to join his trial with the trial of Krajisnik, another former senior member of the Bosnian Serb leadership currently being tried. In that particular case, we most likely lost the equivalent of one courtroom for well over a year. Our ability to envisage other joinders is not only limited by the difficulties faced in ensuring their timely surrender, but also by the sheer size
of the courtrooms, which would make it difficult to conduct trials with more than six or seven accused.

The failure to arrest or surrender fugitives seriously affects the strategic planning of the prosecution. Indeed, we face the dilemma of choosing either to focus on the accused already in the custody of the Tribunal, or to plan for the trial of such senior accused as Karadzic, Mladic, Gotovina and others who may unfortunately remain at large for an unknown duration. An unintended
consequence of the completion strategy is that fugitives and their protective networks are trying to buy time until 2008, in hopes of evading justice, as they believe the time to be tried in The Hague will soon expire. In this context, a statement that the ICTY will remain open as long as necessary to ensure that the fugitives mentioned in Security Council Resolutions 1503 and 1534
are tried before would serve the interest of justice.

A second problem for the completion strategy is the dire budgetary and financial situation of the Tribunal in general and of my Office in particular. We have been badly hit by the deferred consideration of the 2005 budget for the investigative support for trials and appeals. Consequently, we have been unable since the beginning of this year to extend contracts of the staff who will
provide investigative support to trials and appeals beyond 31 December 2004. Moreover, the cash flow crisis that emerged this spring, leading to a temporary freeze on new recruitment imposed by the Secretariat, prevents us from recruiting, even to replace essential personnel who leave the Tribunal. And, as other international judicial institutions are expanding, notably in The Hague,
the ICTY is losing staff at an alarming rate. The combined effect of these factors has had a considerable impact on morale, making it in turn even more difficult to retain experienced staff.

These financial restrictions directly affect the completion strategy, as the scarcity of investigative resources will inevitably slow down the preparation and conduct of trials. Because this untenable situation is directly influencing the completion of our mandate, we urge you to support us in our efforts to solve this very serious problem.

The third main challenge encountered by the ICTY remains the issue of the full co-operation of all States. The cooperation of the States of the former Yugoslavia is not only a legal obligation, it is also of vital importance for a successful completion strategy. Beyond the arrest of indicted criminals, States have the obligation to grant access to witnesses and documents. The
written assessment on the status of co-operation provided by the countries of the former Yugoslavia remains up to date.

The Croatian authorities are at this point in time fully co-operating with my office. This co-operation must continue, and I expect Croatia to locate and transfer Gotovina to The Hague as soon as possible, hopefully before my next appearance before you.

Since December, the authorities of Serbia and Montenegro provided almost no co-operation, and this country has become a safe haven for fugitives. At least 15 accused at large, including Ratko Mladic, spend most of their time there. According to information recently obtained, fugitives that were believed to reside in Republika Srpska have moved across the border. I am even reluctant
now to pass any information on the fugitives to Serbian authorities, because the last time I gave precise information regarding a high-level fugitive charged with the Srebrenica genocide, I was told by the Serbian authorities that, due to the political circumstances, it was not opportune to arrest him. I learnt that he has disappeared since then.

There was no progress either in other areas where the co-operation of Serbia and Montenegro is being sought. Few waivers allowing witnesses to testify before the ICTY were granted in the past month, but they concern mainly defence witnesses, and not prosecution witnesses. Well over fifty requests for waiver are still outstanding. There were several statements made by high-level
officials saying that co-operation would re-start after the presidential election which took place on 13 and 27 June. We will therefore be able to assess very soon whether these authorities are serious or simply vying for time. In the absence of a significant number of transfers of fugitives in the weeks to come, I will have to conclude that Serbia and Montenegro continues to be
unwilling to abide by its international legal obligations.

Mr. President, Excellencies,

The support of the international community as a whole and of all Member-States of the UN remains crucial in securing the co-operation of the States of the former Yugoslavia. Also, some international institutions, like SFOR in Bosnia and Herzegovina, have an important role to play in the arrest and transfer of fugitives. The last time a fugitive was arrested in Bosnia and
Herzegovina by SFOR was in July 2002. I hope that the new arrangements currently designed regarding the future of international forces in this country will be more effective in the search and the arrest of indicted criminals.

As Prosecutor, my only recourse in case of a State’s failure to comply with its obligations is to report it to the President of the ICTY, who, in turn, could bring it to the attention of the Security Council. On 4 May 2004, a report concerning the consistent failure by Serbia and Montenegro to comply with its legal obligations was forwarded by President Meron to the Council. We
urge the Council to act and put an end to this pattern of non-co-operation. If this situation was allowed to continue, it would endanger the completion strategy, and also the legacy of the Tribunal.

Mr. President, Excellencies,

The message of the victims of the worst crimes known to humankind remains constant, regardless of their community of origin. Their concern is to see that justice be done, not just simply because they wish to see the criminals punished, but also because they understand that the stability and peace in their countries rely on the judicial process. As we approach the tenth year
commemoration of both the Srebrenica genocide and the signing of the Dayton agreement, we simultaneously approach another anniversary: Radovan Karadzic and Ratko Mladic have been at large for almost ten years. How long will it be tolerated that these leaders escape justice? How long will it be tolerated that they make a parody of both justice and the repeated commitment of the
Security Council to have them arrested and tried?

Mr. President, Excellencies,

Please allow me to stress once again how important your support is for the success of the Tribunal. The factors which really influence the completion strategy of the ICTY are threefold: the financial needs of the Tribunal, the timely arrest of the fugitives, and the support needed to establish credible domestic jurisdictions. All three are beyond the Tribunal’s control, but they
can and must be addressed by the international community.

When it established the Tribunal in 1993, the Council proved its commitment to Justice and the Rule of Law. In Resolution 808, it stressed its determination to put an end to the widespread crimes occurring within the territory of the former Yugoslavia, including reports of mass killings and the practice of ethnic cleansing, and to bring to justice the persons most responsible for
these crimes. Eleven years later, with all the efforts already made by the international community to halt these crimes and redress them judicially, these objectives are almost achieved. It is perhaps ironic that, just when the ICTY is gaining momentum and reaching its cruising speed, so much time is being spent discussing its end. But the completion of the mandate is now within
reach, and we can see the final years ahead of us. This period should not become simply an "end-game", with an abrupt closing, regardless of whether or not the top-leaders are apprehended and tried before the ICTY: this would negate all the efforts so far devoted and all the results already obtained.

Mr. President, Excellencies,

I join President Meron in urging the Members of the Council to continue their support for the Tribunal and to ensure that it is given the means necessary to fulfil its promise and its full potential.

I thank you for your attention and for your continued support.