Mr. Chairman,

Ladies and Gentlemen,

It is a pleasure to address this distinguished forum of colleagues, jurists, international law experts and advisers.

I would like to begin by turning to some developments that have emerged in recent Appeal Judgements with regard to the crime of persecution. I recall that the substance of the crime of persecution, despite having been firmly established under international law as a crime against humanity, had not been truly developed until the conflicts in the former Yugoslavia and the subsequent proceedings before the International Tribunal. As one commentator has noted, persecution has come to represent much of what happened in the conflicts in the former Yugoslavia during the 1990s, much like genocide is the offence that, in the minds of many, represents what happened in Rwanda in 1994.

The crime of persecution was addressed in Tadić, the Tribunal's very first case and has, to date, been considered in over 17 cases at both the trial and appeal level. With each decision, the contours of this crime have gained in substance and clarity.

One of the most complex issues in relation to persecution is exactly what kind of underlying acts it encompasses. The subjective element of persecution (mens rea) is discrimination on political, racial and religious grounds. Persecution's objective element (actus reus ) is constituted by an underlying act, which must deny a fundamental human right laid down in international law and, considered in isolation or in conjunction with other acts, must constitute conduct of the same gravity as other crimes provided by Article 5 of the Statute. That is, the underlying conduct, even considered in conjunction with other acts, must constitute conduct of equivalent gravity to the enumerated crimes under Article 5 of the Statute such as murder, extermination, enslavement, deportation, imprisonment, and torture. Thus, the underlying conduct need not be a crime under international law in itself . On the other hand, not every single act of discrimination will amount to persecution as a crime. In Simić, the Appeals Chamber has also reiterated that the participation of international personnel in facilitating transfer of people from conflict zones on humanitarian grounds does not render an otherwise illegal transfer lawful, nor does it prevent a finding that forcible displacements were of sufficient gravity to amount to persecution.

In the Brđanin case, Radoslav Brđanin, a local politician, formed part of the Bosnian Serb leadership intent on creating a separate Bosnian Serb state from which most non-Serb Bosnians would be permanently removed. The Appeals Chamber upheld the dismissal of Brđanin's claim that Article 27 of the Fourth Geneva Convention allowed for the termination of employment of Bosnian Muslims and Croats for security reasons. The Trial Chamber held that concerns of 'control and security' cannot be considered outside of the context of the illegality of the plan to ethnically cleanse the territory claimed by the Bosnian Serb authorities within which those terminations had taken place. It was clear from the text of the decisions by local authorities that the real reason for the dismissals was the ethnicity of the individuals involved. The Appeals Chamber explained that, when it is proven that a transfer was made on discriminatory grounds, authorities may not attempt to justify it by invoking control and security concerns.

I will now move away from crimes against humanity and turn to consider the important finding, in the Galić case, related to terror as a war crime. The Galić case concerned the responsibility of Stanislav Galić, Commander of the Bosnian-Serb Army besieging Sarajevo from 1992 to 1994, for the campaign of shelling and sniping conducted against the civilian population of Sarajevo . This case required elaboration of the elements of the crime of 'acts or threats of violence the primary purpose of which is to spread terror among the civilian population', which had never been adjudicated by an international tribunal prior to this case. I would like to emphasize that the crime in question is limited to the attempted terrorization of civilians in times of armed conflict and should be distinguished from terrorism in time of peace.

Having confirmed the Trial Chamber's findings that a campaign of attacks against the civilian population did occur in Sarajevo during the indictment period by shelling and sniping fire, the Appeals Chamber held that acts or threats of violence constitutive of the crime of terror are not limited to direct attacks or threats of direct attacks against civilians, but may also include indiscriminate or disproportionate attacks or threats thereof. The primary concern is that the acts or threats of violence be committed with the specific intent to spread terror among the civilian population. The Appeals Chamber however further affirmed that the actual terrorisation of the civilian population is not an element of the crime, and that the existence of another purpose in addition to that of spreading terror behind the acts or threats does not preclude the charge of spreading terror.

The Appeals Chamber also affirmed its jurisdiction over the crime of terror by reference on the basis of the customary international law character of the prohibition of terror against a civilian population, whose legal basis can be found in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II. The Appeals Chamber noted that these articles represented an affirmation of existing customary international law at the time of their adoption. A majority of Judges further agreed that in 1992-1994 - the time of the commission of the offences in question - a breach of this rule entailed individual criminal responsibility pursuant to customary international law.

The Galić case further addressed a number of issues concerning the conduct of hostilities, issues of particular interest in the case of conflicts affecting urban environments. The Appeals Chamber affirmed that the presence of individual combatants within the population does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, civilian. The Appeals Chamber added, referring to its earlier pronouncement in Blaškić, that in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, a trier of fact should examine the number of soldiers, as well as whether they are on leave, in relation to the number of civilians present on the scene. The Appeals Chamber also examined specific questions such as dual-use objects, the possibility of artillery errors, and the use of civilians as human shields.

The Appeals Chamber further upheld the Trial Chamber's methodology in assessing the legality of a number of listed attacks. In particular, each incident alleged as an unlawful attack against civilians should be analyzed carefully in order to reach a conclusion beyond reasonable doubt as to the guilt of the perpetrators. To this end, a number of factors must be considered in order to exclude that the victim was hit by friendly fire, by a stray bullet, or mistaken for a combatant. The Appeals Chamber also clarified the legal standard applicable in cases of attacks on hospitals under the Fourth Geneva Convention and Additional Protocols thereto.

As time does not permit a more comprehensive overview of the Tribunal's jurisprudential developments, I would just mention one last significant clarification made by the Appeals Chamber in the Blagojević and Jokić Case. The case against Vidoje Blagojević, a colonel in the Bosnian-Serb Army, concerned his conduct, as well as the actions of his Bratunac Brigade, in the immediate aftermath of the takeover of Srebrenica by the Bosnian-Serb Army. The Appeals Chamber overturned Blagojević's conviction for complicity in genocide as an aider and abettor. According to the Appeals Chamber, in the absence of knowledge regarding the mass killings that took place in Srebrenica, Blagojević's knowledge of the forcible transfer and of the murders and mistreatment that took place in Bratunac was an insufficient basis to infer Blagojević's knowledge of the principal perpetrators' genocidal intent, a pre-requisite to find him responsible of aiding and abetting that crime.

The Appeals Chamber considered its previous ruling in Krstić that "forcible transfer does not constitute in and of itself a genocidal act", but rather simply assists, together with other culpable acts such as murder and mistreatment, in placing the mass killings in their proper context. Having considered this holding and the facts of the case, the Appeals Chamber did not accept that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators' intent to "destroy" the protected group in question.

Turning to the topic of overlapping jurisdictions listed on today's agenda, I note that one of the International Tribunal's most significant achievements is, I believe, its demonstration of the fact that international criminal law is an enforceable body of law. Moreover, the experience of the ICTY shows that the enforcement of this body of law, far from being an end in itself, does in fact advance the rule of law within the countries most affected by its action and contribute to lasting stability in the affected region. Because of this, the ICTY has acted as a catalyst for the proliferation of other ad hoc Tribunals administering international criminal justice in Rwanda, Sierra Leone, Cambodia, and of course for the establishment of the permanent International Criminal Court. The influence of the International Tribunal on the decision to establish these other bodies and the importance of its substantive and procedural jurisprudence to the success of these institutions has been profound.

In my view, the proliferation of jurisdictions is in fact a positive development in spite of the possibility of conflicts of jurisdictions. While most existing international judicial institutions were established to prosecute crimes related to a specific geographical area and committed prior to the entry into force of the Rome Statute, future international courts might, in theory, be granted jurisdiction over cases falling within the subject-matter and temporal jurisdiction of the ICC. In such instances, problems of coordination might arise that would be difficult to solve under international law.

Nonetheless, I do not believe that the possible occurrence of conflicts of jurisdictions should necessarily deter the international community, where appropriate, from establishing further international or mixed criminal courts and tribunals. At the present stage of development of international law and relations, the most important objective in this field is that the international community shows its willingness and ability to react to the commission of crimes through the exercise of independent and impartial jurisdictions. Possible conflicts of jurisdictions will certainly be dealt with on an ad hoc basis and will certainly not lead to impunity due to inability to choose the most appropriate forum.

The concern that proliferation might lead to fragmentation of the developing case-law in this area, as well as in other areas of the law, is - and I fully agree with President Higgins on this point - overstated. Indeed, the resulting debates concerning substantive case-law, only serve in my opinion to ensure a more robust development of these areas of law, through the contribution of the institutions themselves as well as of interested learned commentators. This is the case of the instance addressed by President Higgins with regard to the differences in perception between the ICJ and the ICTY on the control test. It is, in any event, far too soon to draw any final conclusion on the negative consequences that such 'fragmentation' may entail.

With the work of the International Tribunal drawing to a close, a great deal of focus has been placed on ensuring that the Tribunal's legacy is one which reinforces the principles which inspired its establishment. It is clear that, in order for the Tribunal's impact to be lasting and for its contribution to the societies of the former Yugoslavia to be maximized and preserved, the legal foundation of the ICTY, its Statute and Rules of Procedure and Evidence, and some of its functions will have to continue beyond the conclusion of trials and appeals. Important work has been done and continues to take place in order to determine the most appropriate mechanism (or mechanisms) to deal with the 12 essential functions that will outlast the close of trials and appeals. These functions are identified as follows: (1) trials of fugitives; (2) review of earlier judgements; (3) referrals of cases to national jurisdictions; (4) supervision of prison sentences, early release, pardon and commutation; (5) contempt or perjury proceedings; (6) prevention of double jeopardy in national courts; (7) witness protection; (8) issues relating to defence counsel and legal aid; (9) claims for compensation; (10) archives; (11) public information, capacity building and outreach; (12) human resources issues.

In a sense, the proliferation of international jurisdictions has sparked discussion as to whether any, some, or all of these so-called 'residual functions' can be transferred to another court. The position of the International Tribunal, as outlined in its Joint Paper with the International Criminal Tribunal for Rwanda on the 'Residual Functions of the ad hoc Tribunals', is to posit radically downsized Tribunals as the ideal residual mechanism. The Joint Paper submits that it follows from the Tribunals' legal framework that international mechanisms would be most appropriate. It acknowledges the possibility of delegating specific residual functions, but notes that - in practice - it may be unrealistic and unnecessarily cumbersome to split and transfer various residual functions to too many successor entities. Further, some of the residual functions - being judicial in nature - will require Judges and specific support staff and may not be delegated to existing UN bodies. Likewise, certain residual activities cannot easily be transferred to non-criminal international courts.

The ICC has been considered as a possibility. However, because of obvious differences in the jurisdictional basis, substantive law, and procedural rules applicable, as well as differences in the ICC's relationship with the UN, it is submitted that delegating judicial functions to the ICC would hardly be possible. It may, however, be possible to transfer the non-judicial functions of the Tribunals to other institutions, including the ICC. Certainly, the infrastructure and some services of the ICC - including its courtrooms, detention facilities, and witness protection services - could potentially support, as and when required, the activities of residual mechanisms. There is much that remains to be decided and input is being sought from both internal and external stakeholders on these issues.

I welcome your questions and thank you for your interest in, and ongoing support for, the Tribunal's work.