Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 17 November 2004
ADDRESS OF JUDGE THEODOR MERON, PRESIDENT OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, TO THE UNITED NATIONS GENERAL ASSEMBLY
15 NOVEMBER 2004
Mr. President, Your Excellencies,
I am deeply honoured to address this distinguished Assembly to present the eleventh annual report of the International Criminal Tribunal for the Former Yugoslavia. At the outset I wish to thank you, the Member States of the United Nations, for the critical support you have long afforded the Tribunal. We are working tirelessly to accomplish our important mission, and I am pleased to
report that, despite substantial obstacles, we are making tremendous strides.
Since I last reported to the Assembly one year ago, the Tribunal has continued the steady march of progress in achieving its mission. The Trial Chambers and the Appeals Chamber have continued to hear and dispose of record numbers of cases, and we have implemented a number of reforms to increase the efficiency and pace of our proceedings. Consistent with the completion strategy
endorsed by the Security Council, these initiatives – both internal and external – ensure that the Tribunal’s energies and resources are concentrated on senior leaders suspected of being most responsible for crimes within the Tribunal’s jurisdiction.
Even as we are proud of the gains we have made, we recognize that there is always room for improvement. We are constantly seeking ways to increase the efficiency of our proceedings and to reduce the costs of our operations without sacrificing the quality of our work. We have redoubled our efforts to ensure that the States of the former Yugoslavia do all they can to arrest indicted
individuals who remain at large, and Serbia and Montenegro’s delivery up to the Tribunal of Ljubiša Beara, who was indicted for atrocities at Srebrenica, is noteworthy. As we strive to fulfill the Tribunal’s mission, however, we are growing deeply alarmed by the current fiscal circumstances and the effect they are beginning to have on our work, and by the fact that a number of
important indictees remain at large. With those concerns in mind, we eagerly invite the cooperation of all Member States as we seek to bring to justice the perpetrators of the atrocities that scarred the Balkans in the 1990s and devastated hundreds of thousands of lives, and to contribute further to the reconciliation of the peoples in the former Yugoslavia.
First let me review for you some of the Tribunal’s chief accomplishments during the past year. The Tribunal’s activities have continued at the highest pace, honouring the Tribunal’s commitment to the Security Council and to the General Assembly. The Tribunal’s Trial Chambers have continued to work at full capacity by holding morning and afternoon sessions, often running six trials
simultaneously. During the year in review, the Chambers worked on 35 merits cases and five cases of contempt, all at various phases of the proceedings. They rendered eleven judgements, some on the merits and others concerning sentencing.
Certainly the most high-profile trial has been that of Slobodan Milosevic, former head of State of the Federal Republic of Yugoslavia, which proceeded before Trial Chamber III. Following the departure from the trial – and, sadly, the passing – of Presiding Judge May, we were able to continue the functioning of the trial by applying, for the first time in the ICTY, Rule
15bis, which we amended in 2002 and which allowed us to replace Judge May immediately with Judge Bonomy. In February of this year, the Prosecution rested its case, and the Defence opened its case at the end of August.
The Appeals Chamber during the year in review disposed of a record number of appeals. The Chamber completed 17 interlocutory appeals, four appeals from judgements on the merits, and one request for review. The Appeals Chamber also altered its internal working procedures to ensure that appeals continue to be treated as expeditiously and fairly as possible.
Over the year past, we adopted several important reforms to conserve the Tribunal’s resources for the prosecution of senior officials. Internally, we amended our rules to facilitate the implementation of the completion strategy and to enforce the objectives of Security Council resolutions 1503 and 1534. At a special plenary session in April, the Judges of the Tribunal amended Rule
28(A) of the Rules of Procedure and Evidence to require that a group of judges – namely, the President and Vice-President, along with the Presiding Judges from each of the three Trial Chambers – verify that each new indictment filed by the Prosecutor concentrates on one or more senior leaders suspected of being most responsible for crimes within the Tribunal’s jurisdiction.
Indictments that meet this seniority requirement proceed in the ordinary manner; those that do not would be returned to the Prosecutor.
The permanent Judges of the Tribunal also unanimously adopted an amendment to Rule 11bis, the rule governing the transfer of cases involving mid- and lower-level accused to national jurisdictions where the accused would receive a fair trial and would not be exposed to the death penalty. Prior to the amendment, the rule only permitted a case to be referred to the national
jurisdiction in which the alleged crimes occurred or in which the accused was arrested. Now, however, we have expanded Rule 11bis to allow transfer of cases to any national jurisdiction with the will and the judicial capacity to afford the accused a fair trial (again, so long as the death penalty is not an available punishment). This amendment creates an additional mechanism
for referral of cases out of the Tribunal’s jurisdiction, thereby improving the Tribunal’s efficiency. By transferring lower and intermediate-level defendants, we enhance the critical involvement of national governments in bringing reconciliation and justice to the region. A trial chamber has been tasked to consider requests from the Prosecutor for the transfer of cases to
Bosnia-Herzegovina, Serbia-Montenegro, and Croatia. Its role is to verify that the conditions stated by the Security Council and our rules of procedure and evidence have been met in terms of the defendants’ seniority and the availability of due process in the domestic courts before the cases can be transferred.
One of these national jurisdictions, I am pleased to report, is very close to being ready to accept transferred cases of lower and intermediate-level officials. Officials from the Tribunal have worked closely with the Office of the High Representative to create the special chamber for war crimes prosecutions in the new State Court of Bosnia and Herzegovina. An Implementation Task
Force and nine working groups were established, and these groups are nearing completion of their work in preparing the Sarajevo war crimes chamber to receive transferred cases. The Bosnian authorities expect that the chamber will be operational by January 2005, and the Tribunal is prepared to begin transferring cases as soon as practicable.
As the Balkan region moves toward stability, these national courts should – and, I trust, will – assume a major role in bringing offenders to justice, achieving reconciliation in the area, and promoting the rule of law. They can only do so, however, if they are not used for political purposes and if they meet international standards of due process and fair trial. To that end, other
members of the international community have begun lending support to the fledgling Sarajevo tribunal. At a diplomatic conference held in October 2003 at The Hague, Ambassador Fassier, the Senior Deputy High Representative for Bosnia and Herzegovina, joined me in explaining the function of the chamber and the need for support of the project from States. As a result, supporters pledged
over 16 million Euros in contributions to defray start-up costs during the chamber’s first two years. Additional pledges were made to help fund years three through five of the project. The delivery of this financial support is crucial to ensuring the successful operation of the new war crimes chamber.
The Tribunal is engaged in a number of initiatives designed to expedite the process of preparation for an eventual transfer of cases from the ICTY to Croatia and Serbia Montenegro. For example, the Tribunal organized an extensive program for Croatian judges and prosecutors who are likely to take part in the trial of war crimes cases. During my first official visit to Croatia in
early November 2004, I was impressed by the growing professionalism of the County Court in Zagreb and of the Supreme Court of Croatia. The Tribunal also hosted a week long visit, organized by the UNDP, by seven judges of the newly established department for war crimes at the Belgrade District Court. This court is developing an important war crimes trial capability.
The availability of national war crimes courts to which the Tribunal can transfer intermediate and lower-level cases will go a long way toward helping us fulfill the goals of the completion strategy. We have made great progress toward that end during the last year. The Judges of the Tribunal held several plenary sessions, where, among other things, we adopted the rule amendments
that I earlier mentioned. The plenary sessions in December 2003 and May of this year focused heavily on the completion strategy, including ongoing measures to enhance the efficient operation of the Tribunal.
In addition to the rule changes to which I referred, several other developments during the past year have smoothed the Tribunal’s operation and improved its efficiency. We have established a Scheduling Working Group that forecasts the duration of trials and judgement-drafting periods to ensure that courtroom space is used to its maximum capacity. This Working Group – composed of
members of the Registry, Chambers, and the Prosecutor’s Office – has succeeded in overseeing the efficient progress of trials and use of the Tribunal’s facilities. Finally, we have extended the powers of ad litem judges to perform pre-trial functions in a greater number of cases, thereby making full use of the ad litem judges’ service and aiding trial readiness. In
relation to the ad litem judges, however, I would underscore, as I noted in my letter to The Legal Counsel, that it is of critical importance that the elections of ad litem judges be held as early as possible in 2005. Early elections will enable the Tribunal to achieve the most timely and efficient organization of trials possible.
I would also note that we continue our efforts to work with the governments of the States of the former Yugoslavia. Cooperation of the Federation of Bosnia and Herzegovina is good, but cooperation by the Republika Srpska remains insufficient. This is especially the case with respect to fugitives who remain at large and access to wartime documentation.
Moreover, except for the case of Ljubisa Beara, indicted for his alleged role in the war crimes at Srebrenica, there still has been virtually no cooperation by Serbia and Montenegro with respect to the arrest of fugitives and access to evidence. And while the Croatian authorities’ cooperation has improved considerably, we expect them to exert their utmost efforts until Gotovina is
at The Hague.
I hope it is clear by now that the Tribunal has made every possible effort to stay on track with the completion strategy during the last year. I must report, however, that financial difficulties are beginning to threaten our capacity to run on all cylinders. Although some Member States – including, most recently, the Russian Federation, to whom I wish to express my special
appreciation, and all the other permanent Members of the Security Council – have fulfilled their financial commitments to the Tribunal for 2004, far too many other States have not met their obligation to support the Tribunal’s mission, and their payments have fallen into arrears. At this time, outstanding contributions for 2004 and previous years still amount to an unacceptably high
percentage of the Tribunal’s yearly budget. As a result, the Secretary-General in May determined to keep all expenditures at a minimum and imposed a recruitment freeze on all posts and a severe cutback of all other expenditures.
The freeze is beginning to have a devastating effect on the Tribunal. Since the freeze was implemented in May, well over 100 staff members have left the Tribunal – more than 10% of our numbers. This loss of staff jeopardizes our efforts to execute the completion strategy. More to the point, the hiring freeze leaves us unable not only to hire new staff members, but even to replace
those who leave. And the perceived lack of support from the international community cannot help but influence staff morale and motivation.
We are striving hard to do more with less, but we can only redistribute workloads for so long. Inevitably the hiring freeze will cripple our ability to operate efficiently and to fulfill the goals of the completion strategy. As an institution with only a limited mandate and an impermanent duration, we already face difficulties in recruiting and retaining talented staff members who
are attracted, naturally, to more permanent employment, with greater opportunities for advancement, at other institutions. This intrinsic disadvantage, coupled with the hiring freeze, poses a serious threat to our completion goals.
Despite these financial troubles, we are doing all that we possibly can to stay on track with the completion strategy. But I repeat my past call and that of my predecessors for each and every Member State to do its full part to assist the work of the Tribunal. Twenty fugitives remain at large and must be arrested. This number includes Radovan Karadzic, Ratko Mladic, as well as Ante
Gotovina. In this regard, I urge the General Assembly to be mindful of the risks posed to international justice in seeming to allow fugitives the false hope that they can outrun and outlast the Tribunal. With the end of the Tribunal’s lifecycle in sight, we must together guard against compromising the legacy of justice and reconciliation in the former Yugoslavia. As I have often said,
the Tribunal’s historic mission will not have been achieved as long as senior-level accused have not been brought to justice at The Hague.
The Tribunal is now more than ten years old. When its creators established it in 1993 as the first international war crimes chamber since Nuremberg, they hoped it would do more than simply mete out justice to individual wrongdoers. They hoped it would also help to create an impartial record of atrocities committed during the Yugoslav conflicts, and offer victims a sense of
accountability and dignity. And they hoped that, in so doing, it would contribute to reconciliation and reconstruction in the republics of the former Yugoslavia. I am proud to say that the Tribunal, with the General Assembly’s support, is tirelessly striving to fulfill these hopes.
It would exceed the capacity of any single court to bring more than a partial reckoning to the vast scale of the crimes that marred the Balkans in the 1990s – the murders, rapes, and deportations; the acts of torture, destruction, and cruelty. But, if with slowness at first, the Tribunal has helped to bring to account a considerable number of accused of high rank, and is now doing
so with confidence and efficiency.
By throwing into stark relief the consequences of ethnic and religious hatred, the trials held by the Tribunal have demonstrated the viciousness of those who built their power by encouraging their followers to embrace such hatred. The Tribunal has thus made a fundamental and lasting contribution to bringing justice to the peoples of the former Yugoslavia. And the Tribunal’s very
existence has served an educational function far beyond the borders of the Balkan region. Due in no small part to the Tribunal – and the United Nations’ wisdom in creating it – international humanitarian and human rights law today holds greater currency and is better understood throughout the world than it was just a decade ago.
The types of cases on the Tribunal’s docket are necessarily large and complex, and our proceedings necessarily lengthy and costly. Often the crimes charged, connected to entire military campaigns, occurred over the course of months or years, across many locations, and involved several defendants. With many counts of indictment, tens or hundreds of witnesses, thousands of pages of
documents – most of which must be translated from Serbo-Croatian into English and French, the Tribunal’s working languages – these trials are extremely complex. In the plenary session scheduled for December 6, the judges will consider additional important proposals for further expediting trials and appeals.
It is difficult to put a price tag on international justice. At the very least, justice for the former Yugoslavia cannot come "on the cheap." Due process must be fully respected. And it is critical to bear in mind all that is gained through the Tribunal’s work.
After some ten years, the Tribunal has established an impressive and unprecedented body of jurisprudence on both substantive international humanitarian and criminal law and, equally important, on criminal procedure and evidence. The Nuremberg tribunal left us with important judgments on war crimes and crimes against humanity, but it had far less to say on international procedural
and evidentiary law. Our judgements on both procedural and substantive law now supply a foundation for all international criminal courts, and our success serves as a model for national prosecutions of those who commit war-time atrocities. Our leading decisions on international humanitarian law will provide essential guidance for the tribunals in the former Yugoslavia, and our staff
members are sharing, and will continue to impart, their valuable experience in training the staff of these nascent courts. Our jurisprudence will likewise contribute to the success of other courts designed to enforce international humanitarian law, including various national courts as well as the Special Court for Sierra Leone and the International Criminal Court, both of which have
used our Tribunal as a model.
In establishing this Tribunal, the international community pledged to bring to justice persons suspected of having inflicted terrible atrocities on their fellow human beings. It pledged to eliminate impunity not through vengeance, but through the rule of law and by upholding the basic principles of human rights and due process. With the full support of all the Member States, we
look forward to continuing that important work and providing a jurisprudential example for criminal tribunals still to come.