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Address by the Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Mrs. Carla del Ponte, 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 October 2002




Please find below the full text of the Prosecutor’s address to the UN Security Council in New York on 29 October 2002.

Mr. Chairman,

I am once again most grateful to have the opportunity to address the Council. I would like to provide an updated report on developments in the work of my office in both the ICTR and the ICTY.

Starting with the ICTR, I am pleased to report that the trials of accused persons in the highest leadership positions are now under way. In parallel with that activity, our on-going investigations of the crimes committed in Rwanda in 1994 focus on individuals in top command positions at the governmental, administrative, military and militia spheres.

However, three concerns remain: the arrest of fugitives; access to information; and securing the appearance in court of prosecution witnesses.

On the first of these, the arrest of fugitives, there have been encouraging developments. Three arrests have recently taken place: that of Augustin Bizimungu in Angola; that of Tharcisse Renzaho in the Democratic Republic of Congo; and that of Jean-Baptiste Gatete in Congo-Brazzaville. However, other fugitives remain at large and we have good reason to believe that some are
receiving protection in various African countries.

On the second point, access to information, in particular military information, I am experiencing difficulties in obtaining from the Rwandan authorities information relating to their armed forces. My office encounters serious resistance in this area. I would urge the Council not to become distracted from the only issue at stake here: the obligation of Rwanda to co-operate with all
lawful requests from the Tribunal, irrespective of the subject matter. No State can place itself above its international obligations, and co-operation, even on sensitive issues, must be unconditional.

My third major concern, now familiar to the Council, lies in securing the appearance of prosecution witnesses who must travel from Rwanda to the Seat of the Tribunal in Arusha. Despite short interruptions in the Niyitegeka and Butare trials, we have been able to continue the ongoing trials without major disruptions, but the current situation is fragile. I reported to you last July
that I was extremely concerned because Rwanda does not extend its full co-operation in this regard. President Pillay wrote to you on 26 July 2002, to officially bring to your attention the preoccupations of the ICTR regarding the non-cooperation of the Government of Rwanda in recent months. Our worries remain up-to-date.

I will not allow the ICTR and international justice to become hostage to a State’s domestic agendas. I do remain vigilant, and will certainly report to you any difficulty encountered.

Mr. Chairman, I now turn to the ICTY.

I believe that we are now at the very peak of our activity in The Hague. My staff and I are currently undertaking the most serious investigation and prosecution activity of our mandate. Our legal system is maturing rapidly in its quality and sophistication. In the courtroom our work is growing in its complexity and in its strength. Our jurisprudence is expanding at every turn, and
we are beginning to see the Tribunal’s powerful effect on a group of significant individuals, who at last are prepared to recognise the persistence of the institution and its ability to bring perpetrators inevitably to justice. We must keep up this momentum.

The fact that an accused of the former rank and stature of Biljana Plavsic was prepared to plead guilty to criminal charges, is an important development. It marks an acceptance that the judicial process can play a powerful role in the process of reconciliation.

Moreover, a growing number of prominent witnesses from the region are prepared to come forward and testify openly in our proceedings. Others, particularly persons who were themselves close to the events or the accused, are ready to give their key evidence in closed sessions of the court.

But the Council should make no mistake that obstacles and obstruction still confront us. Delays for us can be deadly, given the driving force of our proceedings and the pressing demands of the criminal process. There will be no second chance for our prosecutions. We cannot sit back and wait, or engage in protracted negotiations with those who have a duty to comply with the
Tribunal’s orders or requests.

The most blatant examples, as always, are failures by domestic authorities to arrest fugitives.

In June 2001, for example, as an expression of trust, I gave the Croatian Government advanced notice of a sealed indictment against General Ante Gotovina, a Commander of forces who was accused of crimes against humanity. My trust was misplaced - he was allowed to evade arrest and according to various reliable sources he is now enjoying a safe haven in the territory of

In May this year I again provided the Croatian authorities with advanced notice of an imminent indictment against General Bobetko, former Chief of Staff of the Croatian Army. My purpose in doing so was, once more, to give the authorities every opportunity to prepare themselves to take action upon the arrest warrant. Instead of compliance with the Tribunal’s order, the Croatian
Government has taken upon itself to seek to challenge the warrant and the indictment itself. We next heard that the General’s health does not permit his travel to The Hague. More delay and obstruction. The attitude of Croatia is unacceptable. We have procedures for resolving any genuine medical issues. We have used them before, and they are a matter for the court, once the basic
obligation to transfer has been accepted in principle by the Croatian authorities. There can be no exceptions or conditions.

As for the authorities in Belgrade, they claim that they have made substantial progress in their co-operation with the Tribunal. But make no mistake: I have said it, and I repeat it now. Belgrade’s co-operation is at best selective; it is slow; and it is insufficient.

They stress that 14 indictees have been handed-over to the ICTY and that a substantial percentage of our requests have been implemented. But the Yugoslav Government omits to say that most of those indictees had individually decided to surrender to the Tribunal. As for the very few actually arrested and transferred by the FRY since 1994, they were all Bosnian Serbs of no political
or military significance whatsoever in Yugoslavia. Belgrade’s record on arrests speaks for itself, with the notable exception of the transfer of Slobodan Milosevic. But, as you all know, that courageous move is the sole credit of the Serbian Government and was carried out despite the opposition of the Federal authorities.

As for the statistics put forward by Belgrade to stress their rate of reply to our requests, they are misleading to say the least. The majority of the replies received so far were either not substantive or partial when not reduced to bland statements that the requested files or documents "had not been found, or were destroyed during NATO bombings", etc. Needless to say that
sensitive information, archives and military sources of evidence remain beyond the reach of justice. Indeed, the FRY does not show the slightest inclination to comply with any requests relating to the Yugoslav army. Indicted military personnel are untouched. Notorious figures such as Ratko Mladic are protected. You will undoubtedly have heard and continue to hear the strongest
assurances that Ratko Mladic is not in the FRY. While constantly denying that Mladic is in Serbia, the authorities have always conceded, in private meetings, that he had been in Serbia, "until recently". In July, authorities in Belgrade admitted he had been there in June, but was no longer in Serbia. In June, they admitted that, yes, he had been spotted in April, but was now in
Republika Srpska. We have had enough of this, and at my request President Jorda has now formally seized the Council of the failure of the FRY to meet its obligations under the Tribunal’s Statute.

Military archives are closed to us, even in investigations where Serbs are the victims. The pattern is clear, and it may well be explained by an admission, made at one time but not since repeated, that nothing would be provided to the Tribunal if it might compromise the position of the FRY before the International Court of Justice, where Bosnia and Croatia seek the payment of war
reparations. A quite improper consideration.

Another revealing remark was made recently by the President of the FRY that "co-operation with the ICTY has already gone too far". Yet another by the Federal Minister of Justice, who insisted that the Law on Co-operation would not be changed, although its Article 39 excludes the arrest and transfer to The Hague of persons indicted after the entry into force of the law. To make
matters worse, having been told many times in the past that access to certain military documents would not be possible before the enactment of the Law on Co-operation, we have recently been informed that some requested documents have now been destroyed under a provision of the domestic law requiring the automatic destruction of documents after 10 years. If the consequences were not so
serious, this kind of blatant defiance of international obligations would be almost comical. It cannot be allowed to continue.

This behaviour is calculated. It cannot merely be explained away by saying that the political situation is difficult at the moment. Of course it is difficult. That is to be expected in any country in the aftermath of armed conflict and political upheaval. The situation is difficult by definition. There will never be a "good" time to execute warrants and arrest notorious public
figures. There is always some short term political consideration at work, some local power struggle or regional election. There will also be unresolved strategic issues of genuine concern to the international community – the future status of Kosovo, is an example. Broad concerns of this kind will always occupy the minds of those who have to struggle with the reconstruction of divided
societies, and such issues will, of course, be uppermost in their minds. An ideal moment will never arise for the arrest of war criminals. But no system of justice anywhere in the world is expected to work that way. The right time to arrest a murderer is always "now, today".

I have yet another serious concern, and that is that the obstruction of the judicial process itself, however subtle or blunt the methods employed, strikes at the Tribunals’ ability to discharge their mandates in any meaningful way at all. We are beginning to be able to present what I might call crucial "insider" witnesses or "sensitive sources". But fresh hurdles are being erected
and placed in the way of such people: they are being told that talking to my staff brings with it the risk of prosecution under domestic law protecting official and military secrets.

Formal waivers must therefore be granted by the Yugoslav authorities before these witnesses can be allowed to give their statements. Because certain waivers for key witnesses are incomplete, they do not provide the necessary reassurance to the individuals concerned. Worse, a very important witness in the Milosevic trial has recently been threatened with actual prosecution by the
Federal authorities, merely for having spoken with our investigators. The signal sent to others similarly minded to co-operate with the Tribunal is most sinister. But this, I’m afraid, does not deter the FRY to claim that it co-operates with us in providing all needed assistance to our witnesses. If these practices are allowed to continue unchecked, a great deal of critical evidence
will be lost to the Tribunal.

The indictment of a top leader will always provoke short-term political difficulties. But if the Tribunals are to meet the completion strategy targets and the deadlines that are expected of us, these other problems have to be tackled by the international community. You have heard President Jorda outline the steps he is taking to focus the resources of the Tribunal on the most
serious cases. For my part, as Prosecutor I have drastically prioritised our investigative objectives, for both Tribunals, and further focused our efforts on "the main civilian, military and paramilitary leaders" so that we can now reasonably expect to fulfil the essence of our prosecution missions for both Tribunals by the end of 2004. But one thing must be clear: We cannot be
asked to complete soon our indictments and trials of top leaders and, at the same time, be told to be patient and not to rock the boat. This is an obvious contradiction.

I must therefore stress the need for both Tribunals to maintain the momentum. Achieving our completion strategy, of course, depends upon it, for without timely arrests and timely access to the evidence, we cannot control the pace of our activities.

The Council itself has stressed that States may not invoke provisions of their domestic laws as a means of avoiding their international obligations. That principle must be driven home to the FRY by the Council and by the international community at every possible opportunity, in words and by actions.

Mr. Chairman it is obvious to me, as an interested observer of the political and security situation in the Balkans and in the Great Lakes Region, that there is an enormous danger in allowing the rule of law to be undermined. Prosecutions before the International Criminal Tribunals have highlighted the dangers for peace and security when the dividing lines become blurred between
regular military forces, army commanders, paramilitary leaders and their organisations, armed police, political parties, organised crime and individual thugs. We saw that happen only too clearly as the former Yugoslavia and Rwanda descended into conflicts. Impunity fosters political intrigue, profiteering and corruption, widespread criminality, and a culture of violence and

War criminals and those who commit genocide interact closely with all other promoters of criminal activities. This is especially so when lack of political will and appropriate means of enforcement have allowed persons accused of genocide, crimes against humanity and war crimes to remain at large over a long period of time. The Republika Srpska is a case in point. Those who finance
the security of Karadzic and other top-level indictees work closely with the authorities, and are also deeply involved, at a local and regional scale, in human trafficking, drugs and the weapons trade, racketeering and other activities. They have corrupted the officialdom, which turns a blind eye to their broad-scale activities, the revenues of which sustain and allow the close
protection of war criminals. These are dangerous developments, and they are thwarting the costly efforts by the international community to restore peace in the Balkans. The same holds true for progress in the Great Lakes Region, particularly in the Democratic Republic of Congo.

We are poised to ensure that the ICTY and the ICTR succeed. Much, however, depends on breaking down the remaining obstacles in our path.

Mr. Chairman, I turn to you to provide in the wider international political arena, the support for our work that only the Security Council of the United Nations can provide.

Thank you.