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The Hague, May 2000
REPORT ON THE OPERATION OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA presented
by H.E. Judge Claude Jorda on behalf of the Judges of the Tribunal
The Hague, 12 May 2000. His Excellency, New York
Mr. Secretary-General, On behalf of the entire bench of Judges of the International Criminal Tribunal for the former Yugoslavia, I have the honour of presenting to you a prospective plan for improving the operation of the Tribunal, with a particular eye to enabling the Tribunal to accomplish even better the missions entrusted to it. I announced the presentation of this plan in my recent letter to Mr. Hans Corell, Legal Counsel, in which I sent him the response of the Tribunal to the Report of the Experts Group, responsible for evaluating the effectiveness of our Institution. This plan meets two needs; firstly, it allows for a review of the state of the Tribunal nearly seven years since it first began operating whilst also analysing its future prospects. Having studied the numerous measures that could be taken to improve the Tribunal’s operation, it also enables to propose those which are adjudged sufficiently effective and flexible to fit in with the Tribunal’s longer term activity. The plan is first and foremost the result of the Judges’ reflections, Judges conscious that the time is ripe to examine the future of the Tribunal. It is also the outcome of advice, encouragement and suggestions given to me unsparingly by several Permanent representatives of Member States and several organs within your Secretariat during my trip to New York last February. You yourself, Mr. Secretary-General, were kind enough to encourage me in this approach by receiving me. Since February, the plan has received the endorsement of the Bureau before being unanimously adopted by the Judges of the Tribunal at an extraordinary plenary on 18 April. Some issues, especially those relating to the implementation of the proposed solution, were discussed and the conclusions are reproduced in the report. The document having potential diplomatic, legal, administrative and financial implications, I would be grateful if you could bring it before both the General Assembly and the Security Council as you deem most fit. On this point, you will note that, at this stage of the study, the report does not contain a financial assessment of the additional resources required to ensure the implementation of the solution advocated by the Judges. Nevertheless, the plan is flexible enough to allow the beginnings of its implementation to be included in the 2001 budget, which would constitute the first step. Mindful of the need for transparency, the Judges opted to take stock of the state of the Tribunal by suggesting the measures which they believe to be the most pragmatic and most productive in responding to the increasing activity of the Tribunal over the coming years. The Judges nonetheless rounded off their reflections with a series of proposals and suggestions on how to implement the measures advocated. It is in light of the foregoing that I remain available to you and to the President of the General Assembly, the President of the Security Council and the respective members thereof in order to take in any observations and to respond to the questions and concerns to which the report might give rise. Finally, I would like to draw your attention to the fact that the present report has been communicated to the Office of the Prosecutor and, although the Prosecutor herself has not had the opportunity to study it, her Office has expressed general agreement with the assessment of the Tribunal’s projected workload, support for a more dynamic pre-trial process and recognition of the need to increase the Tribunal’s capacity to try cases. The proposals would, of course, have resource implications for the Prosecutor’s Office. Please be assured, Mr. Secretary-General, of my highest consideration.
SIGNED Judge Claude
Jorda, Cc: Mrs. Dorothée de Sampayo Garrido-Nijgh, Registrar; Mrs. Carla Del Ponte, Prosecutor. _______________________________________
STATE OF
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA INTRODUCTION The purpose of this report is to set out the medium and longer term measures designed to improve the operation of the International Criminal Tribunal for the former Yugoslavia over which I have had the honour of presiding since November 1999. Many of the preliminary observations which I shall expand upon in this introduction were put forward previously during the productive exchanges held in The Hague with the Group of Experts mandated by the Secretary-General to evaluate the effectiveness of the activities and operation of the ad hoc Tribunals (pursuant to resolution 53/212 of 18 December 1998). These observations were also made when I had the honour of meeting with the most senior political, diplomatic and administrative officials at the Seat of the Organization in New York in February 2000. This introduction will review the main issues and the objectives pursued. The method used to formulate the Tribunal’s proposals will then be explained in brief. Background The current situation was analysed in depth by the Group of Experts. In its response of 31 March 2000, the Tribunal demonstrated its determination to make use of all the recommendations to deal with some of our present problems. However, above and beyond that which the Organization is legitimately entitled to expect from the application of the experts’ conclusions, the President of the Tribunal, in full agreement with all the Judges, deemed it necessary to anticipate several problems. The time now appears ripe. For many reasons, which will be explained, the Tribunal has reached a turning point in its history. Significant political changes, whose impact should be noted, are emerging and even gaining pace in the Balkans. Furthermore, there is now sufficient distance between the Tribunal and much of what it has done since its creation. It has managed to form itself into a fully operational judicial instrument and even though its case-law – especially on appeal - is not consolidated, indeed far from it, it may nevertheless attempt this projection with the large amount of information now available to it and even allowing for some margin of error (which we will analyse). A brief review of the information: 1 – The increasing number of indictments and arrests. The Tribunal now faces the problem of managing quantity whilst not permitting itself to sacrifice the exemplarity and quality of its proceedings. The consequential trial length results in the accused spending more and more time on remand. Reconciling the two imperatives is not easy. 2 – The proposed reform plan must also take into account the outlook of the Office of the Prosecutor, that is, the criminal policy which will be pursued in the months and years to come. On this point, it is appropriate to note that for the first time a Prosecutor has agreed to set out her program in the medium and long term thus making it possible to assess the workload which will fall to the Chambers further to an assessment with precise figures of her investigative goals. 3 – Procedural constraints. It goes without saying that our trials set out to be exemplary. However, exemplary though the trials may be, this does not exclude their becoming increasingly complex as questions and problems for which no ready-made solutions exist in international criminal law arise for the Judges to resolve (inter alia co-operation of States, arrest conditions, sub poenae and binding orders, form and content of indictments, protection of confidential sources, witness protection, development of law on appeal particularly regarding detention and legal aid, harmonisation of sources of international humanitarian law). 4 – The ever greater expectations of the international community. The Tribunal proved itself during the first trials brought before it. However, the most senior officials have yet to be tried. The Tribunal must be fully operational by the time they are arrested – arrests which appear inevitable given the declared resolve of Heads of State and Government and the statements of the highest-ranking NATO officials. If this does not happen, the Tribunal will provoke frustration and lose some of its credibility. It is difficult to imagine the senior political and military leaders of the countries involved in the conflict spending many months on remand before their trials can begin. 5 – The place of the Tribunal within the international humanitarian law mechanism in view of the inception and establishment of the International Criminal Court. There can be no doubt that much of what is being done in The Hague and in Arusha will, at best, serve as an example to follow and, at worst, serve as a counterexample. In this respect, by demonstrating that a universal criminal justice is possible and feasible, the Tribunal has in some way helped to set up a more permanent judicial organ. However, the demonstration must be exemplary to the very end. A failure of the ICTY, for whatever reason, would deal a very serious blow to the future court at the very moment that many States are on the brink of ratification. Goals These take several forms. 1 – A projection must be made to determine how the activity of the Tribunal will evolve in the months and years to come. 2 – An evaluation of the legal resources required to accomplish this activity is necessary. Although this does not come directly within the province of the study there can be no doubt that such an assessment will be important for listing the human and logistical resources implicated by the analysis. The first imperative is to use our resources to the maximum - as advocated moreover by the Group of Experts. Additional resources cannot be requested until they are proven absolutely necessary. However, all the questions put here may enable the actual decision-makers to sketch out the major points of a long-term plan which would allow the Tribunal to close having accomplished the core aim of its missions. 3 – The political and administrative decision-makers in charge of the Tribunal must also be able to begin to get a relatively exact idea of the length of the mandate of our ad hoc Tribunal and manage the resultant workload over time as best and as rationally as possible. 4 – In addition, analysis of the situation must also make it possible to question whether the present "format" of the Tribunal is suited to its mission as it has now developed. We cannot side-step the question of whether there are alternatives to purely and simply increasing resources. Even if finally discarded, all solutions, from the most theoretical to the most pragmatic, must be analysed – with the exception however of matters relating to the Prosecutor’s criminal policy. 5 – The political and administrative decision-makers need as much information as possible in order to make the best possible decisions. At this point in the history of the Tribunal, it is appropriate to take measures not so as to resolve problems in the very short term but to deal with them from a global perspective. For the most part, what guided the approach taken by the authors of the study was the search for a pragmatic and flexible solution so that, depending on how its judicial activity develops, the Tribunal will always be able to meet different expectations, especially those of the victims and the international community – particularly with regard to the requirement for expeditious and fair trials. 6 – The less direct impact of the study on the establishment of the future permanent Court is not negligible especially in terms of resources and more generally in provoking thought as to how the future Court and the Tribunal will be linked. Observations and plan While compiling this report, several difficulties arose: 1 – First arose the problem of establishing parameters which were both exact and reliable despite the relatively little distance between the Tribunal and its judicial activity. This activity truly began only in late 1995 with the Tadic case, which was ended a few weeks ago on appeal. Most of the sentences passed down have been so in the first instance. 2 – Next arose the problem of making a precise assessment of what impact the implementation of new pre-trial proceedings would have on the duration of trials. 3 – Finally came the problem of taking qualitative account of certain random judicial parameters deriving from the number of investigations and prosecutions announced by the Office of the Prosecutor (end date of investigations, actual number of arrests, complexity of cases, variable level of responsibility of the accused…). 4 – Furthermore, it is unquestionably the case that the assessments lose some accuracy the further in time the projection advances.
In the first part, I propose to set out as precisely as possible the state of the Tribunal’s present case-load. This opening commentary will be followed by a section setting out a projected schedule for both ongoing cases and cases which will commence once pre-trial proceedings have been completed. I shall then attempt to define the prospects for the coming years which necessarily depend on the future arrests and indictments resulting from the Prosecutor’s currently ongoing investigations. On the strength of the observations made in the first part, I shall set forth some proposals in the second which, from both my viewpoint and that of the judges, shall be such as to make it possible for the Tribunal to meet the challenges ahead. Some of the measures do not directly involve the Tribunal and the institution could not legitimately advocate them. They have nonetheless been included so that the record is as exhaustive as possible. Conversely, other measures involve the operation and organisation of the Tribunal more or less directly and these have been presented in ascending order of expected effectiveness. PART I - STATE OF THE TRIBUNAL - PROSPECTS In this part I propose first to provide a commentary on the current state of the Tribunal - a type of inventory. Such an exercise is indispensable if we wish to be able to project into the future and take particular account of upcoming cases as announced by the Prosecutor. For the above reasons, it seemed preferable to deal with the particular situation of the Appeals Chamber separately. In the first part of this section bearing on the current state, the figures given for time-periods have incorporated as far as possible the gains in productivity resulting from strict application of the Group of Experts’ recommendations. A Present state of ongoing cases in the first instance 1. Statistics It is appropriate to clarify what is meant by "ongoing cases", namely, both the cases actually being tried in the courtrooms (at the time of this report) and the cases relating to all the other detainees which, depending on their arrest date, are at varying stages of the preparatory (pre-trial) phase. Thirteen cases in the first instance pertaining to 26 accused are presently1 on the docket of the Tribunal. Four trials are ongoing. Two approaches are being taken in managing case-files. The first (in Trial Chamber I) consists of conducting two trials in parallel - in principle each being heard alternately for two weeks at a time. The second (in Trial Chambers II and III) consists of dealing with one single trial at a time without interruption. This decision is based on specific grounds (some judges are also responsible for case-files in the Appeals Chamber) and on the reasoning that two consecutive trials will last no longer than two trials held in parallel. There are arguments for each of the approaches and an assessment based on actual results has yet to be carried out. It may however be taken for granted that each of the Trial Chambers will have to hear two trials a year which does not however mean that the two trials will be completed during the same calendar year. Nine other cases are in the pre-trial phase. The length of pre-trial preparation is a particularly complex parameter to assess. Such length depends on the time-periods set down by the Rules of Procedure and Evidence (RPE) and, in this respect, the minimum time period is about six months (proceedings under Rules 66 to 68, barring pre-trial motions). Moreover, it is difficult to say with certainty to what extent the time taken until now was due to the requirements of each of the proceedings or whether the time taken in the pre-trial phase resulted from the fact that courtrooms were unavailable until the construction of courtrooms 2 and 3 in 1998 and that the judges were busy in other older cases which meant that the trials could not begin. To compile the projections below, a statistical study was conducted based on the cases which have been through the pre-trial phase and/or trial. The table on the following page reflects the findings of this study. It is appropriate to note that the table is not intended as an analysis of the reasons for the length of each trial. Such an analysis, carried out as part of the study conducted by the Group of Experts, would require very detailed explanations on a case by case basis. Rather the table constitutes a snapshot of the present state of the cases. LENGTH OF PRE-TRIAL PREPARATION OF CASES
Extremes: Most expeditious case: Furundzija: - Length of
pre-trial preparation 5 months and 20 days Longest case: Blaskic - Length of
pre-trial preparation 14 months and 24 days Averages: Length of
pre-trial preparation a little over 10 months The variation in the length of trials can be explained in particular by the complexity of the cases which depends on the level of responsibility of the accused and the number of witnesses called by the parties. 2. Projected schedule Using the statistics shown above, a deduction may be made as to the time the Tribunal will need in order to hear those cases presently before it in the first instance. This deduction has been made using the following data with a mind to the resources currently available:
The assessment does not run contrary to the theoretical capacity of each of the Trial Chambers to deal simultaneously with one trial on the merits and three or four in the pre-trial phase. Three to six judgements on the merits can be delivered per year depending on the nature of the cases assigned to each Trial Chamber. It goes without saying that the estimated projected times below have been arrived at with the greatest of reservations since experience at the Tribunal until now has shown that cases never proceed according to the estimated schedule set beforehand due to all types of events which affect the length of proceedings and which may even lead to the trial’s being interrupted. Taking into account all the data presently available and the reservations expressed above, the trial schedule could be arranged as presented in the schedule in annex 1 and in the chart below.
The recommendations of the Group of Experts were taken into account in arriving at the estimates, in particular those recommendations relating to measures such as to expedite the proceedings (recommendations 1 to 13). The Tribunal’s three Trial Chamber Presiding Judges were exploiting the recommendations as much as possible even before they were anticipated (especially since some of them had already become practice, in particular, in all pre-trial phase related matters). It is still too early to provide more accurate figures for the expected gains in productivity but it is now possible to define the projected length of the pre-trial phase of a case and the length of the trial itself – provided that the case is not exceptional due to the status of the accused or the judicial difficulties which arise. It is important to note in addition that two committees at the Tribunal (the Judicial Practices Working Group and the Rules Committee) are constantly working to improve our proceedings and to harmonise judicial practice within the Chambers, all in the aim of expediting trials even further and consolidating our achievements. All the measures being taken up or already implemented will make it possible to reduce the length of pre-trial preparation to eight months. They have been borne in mind when setting the projected schedule. In examining the table, one notes that the schedule showing when the various Trial Chambers are hypothetically available to commence new trials relating to accused still at large or newly indicted has been drawn up as follows: - Trial Chamber I: 2nd half 2002 - Trial Chamber II: start 2003 - Trial Chamber III: 2nd half 2003 It is of interest to note that the last accused to have been arrested, Dragan Nikolic (22 April 2000), will not see his trial commence before the second half of 2002 at the earliest, that is after more than two years in detention of which a mere 6 to 12 months will have been "necessary" for pre-trial preparation under the Rules of Procedure in force. The cases could be equally redistributed between the Trial Chambers by applying the escalator principle7 such that, on the basis of currently ongoing cases and taking a rather optimistic overview, all the trials might be completed by about the middle of 2003. B Projection: future cases It should be explained that by "future cases" is meant those in which one or several of the accused have still not been arrested to this day and also those cases still being investigated by the Office of the Prosecutor. 1 Cases concerning those accused not arrested or at large Discounting those whose indictments are secret, the list of accused at large (30 as of 2 May 2000 in thirteen case-files) reads as follows: IT-94-3
("Prijedor") 1 – GORAN BOROVNICA IT-94-4
("Omarska camp") 2 –
ZELJKO MEAKIC IT-94-5
("Bosnia and Herzegovina") 5 –
RADOVAN KARADZIC IT-95-8
("Keraterm camp") 7 – DUSKO
SIKIRICA A/K/A "SIKIRA" IT-95-9
("Bosanski Samac") 12 – BLAGOJE SIMIC IT-95-10
("Brcko") 13 – RANKO CESIC IT-95-11
("Shelling of Zagreb") 14 – MILAN MARTIC IT-95-12
("Stupni Do") 15 – IVICA RAJIC A/K/A ‘VIKTOR ANDRIC’ IT-95-13
("Vukovar") 16 – MILE
MRKSIC IT-95-15
("Lasva Valley") 19 – ZORAN MARINIC IT-95-18
("Srebrenica") 20 –
RADOVAN KARADZIC IT-95-23/2
("Foca") 22 –
GOJKO JANKOVIC IT-99-37
("Kosovo") 26 –
SLOBODAN MILOSEVIC On average, there is currently one arrest per month. Using only simple mathematics this means that all the accused might be detained within thirty months, i.e. by the middle of 2003. In the best case scenario and provided that all the accused under the same indictment are arrested simultaneously or in very short order8, it is theoretically possible that the thirteen cases could be spread amongst the Trial Chambers as and when they become available. The extra time required for disposing of the additional case-load over and above that indicated in the above schedule would then be approximately 4 years per Trial Chamber if the statistical parameters worked out above were applied9. The Trial Chambers would have then finished with the present case-load during 2007 at the earliest. It must be noted that shortening the time taken for pre-trial preparation has no impact on these estimates because, as was shown, the capacity of each Trial Chamber to try theoretically remains limited (bottleneck principle). 2 Impact of ongoing investigations As specified in the introduction, the further one moves away from the present– itself dependent on numerous variables – the more difficult it becomes to set a projected schedule, if only because it is impossible to set arrest dates for those indicted let alone those yet to be indicted by the Office of the Prosecutor. Nevertheless, bearing in mind that the judges’ workload will in any case be considerable, it was deemed important to put figures to these future prospects - at least in terms of mandates of the judges of the ad hoc Tribunal. According to the indications provided by the Prosecutor at the plenary of the judges"(…) 36 new investigations will culminate in 29 separate important trials. Of course, in reality, the accused will not be arrested or tried together and the actual number of trials might be significantly higher (…)" The result of applying the method used above to evaluate the length of proceedings is: 29 cases to be distributed to three Trial Chambers meaning about 9 or 10 cases per Trial Chamber, that is nine years of trials in the first instance for the whole of the Tribunal. Summary of the assessment Based on the above observations, trials might end in the first instance as follows: - Present
case-load: middle of 2003 This outcome means that at the minimum10 four additional four-year mandates will be required for the Tribunal to accomplish its mission. Given the unforeseeable factors involved in carrying out arrests and the possibility, as raised by the Prosecutor, that there will be a greater number of indictments, this time-frame might well be greatly increased. Conversely and keeping in mind unforeseeable parameters relating especially to the uncertainty surrounding future arrests, the data – which are based on the assumption that all arrests in 41 cases are carried out - can be mathematically weighted as follows:
C The Appeals Chamber The case-load of the Appeals Chamber is already heavy and will be even more so as the number and importance of the first instance cases increases. Here, the difficulties of making an assessment are many:
Nonetheless it was considered proper to apply the same assessment criteria since the Group of Experts addressed the issue in its report on both of the Tribunals. This being the case, it appears reasonable to consider that the Appeals Chamber could be in a position to render 3 to 6 judgements annually on top of the interlocutory decisions12 - for a total appeals proceedings time of 12 months (for both Tribunals). It is clear that the cases waiting to go to appeal will only increase from year to year because the number of new cases will be greater than the Chamber’s ability to dispose of them. APPEALS CHAMBER STATISTICS I. ICTY (APPEALS ON THE MERITS) A) DEFINITIVE SENTENCES
B) ONGOING APPEALS
Average worked out but not significant: approximately 2 years II. ICTR (APPEALS ON THE MERITS)
To date (11 May 2000) there have been no judgements rendered on the merits. PART I - CONCLUSION The above presentation and supporting tables make it possible to assess the workload which the Tribunal will have in the months and years to come. Admittedly, it is appropriate to allow for the obvious margins of error inherent in this projection. However, it is no less clear that if changes are not made, whether they be in criminal policy, Rules of Procedure or format and organisation of the Tribunal, and that conversely all the political and other facts evolve in such a way that the number of cases inescapably increases, there can be no doubt that we will need to think rather in terms of the number of mandates required. From that perspective, it is reasonable to consider that a minimum of at least three further mandates would then be necessary. PART II – PROPOSED MEDIUM AND LONG TERM MEASURES This part of our study sets out to examine all means which would enable the Tribunal to confront its current workload whilst accomplishing the missions invested in it – to judge the most senior officials, to render the victims justice, to work for History and to prevent the recurrence of such tragedies. The Judges undertook a rigorous analysis of all possible measures. Naturally, during their research, they discarded those which manifestly fall beyond the purview of all legal fields deeming that the mission entrusted to them was essentially to render justice and not to consider other political or diplomatic measures which clearly do not fall within their province. They set their sights on finding fresh solutions which combine both procedural or internal organisational measures – particularly in case preparation – with logistical and personnel support which would make possible a decisive increase in the Tribunal’s trial capacity. All this was done using a flexible and pragmatic approach. A Inventory of the possible measures Some of the measures put forward in this section have already been discussed only to be finally dismissed whilst others, still under examination, must, as things now stand, be abandoned or at the very least considered with caution. The measures are arranged into categories depending on the extent to which they directly involve the ICTY. The decision was taken to set aside and not analyse in detail those measures falling clearly outside the mandate of the Tribunal. Such is the case for the implementation of a Truth and Reconciliation Commission or the passing of a general amnesty law. The judges first analysed the respective advantages and disadvantages of each of the other measures before then stating what gains in productivity might be expected. 1 Measures with little or no involvement of the Tribunal a. Hearing cases elsewhere Description "Hearing cases elsewhere" means that a State from the Balkans or any other State would be able to try a person indicted by the Prosecutor for having committed a serious violation of international humanitarian law pursuant to the provisions of the Statute or even to its own national law. Trials would accordingly be transferred to other States. This form of proceedings is not to be confused with the holding of trials away from the seat of the Tribunal by its judges – a measure which will be examined later in this section. Advantages The immediate benefit is obvious because each trial thus transferred would be deducted from the Tribunal’s case-load. Further, should a case be transferred to a State in the Balkans, the trials would become more visible to those facing trial and justice brought closer to the victims. The pedagogical impact would undoubtedly be greatened. Transferring cases to other States would constitute a form of voluntary contribution to the construction of a more universal justice. Disadvantages The main obstacle is legal. Granted, at the present time, nothing prevents a State from trying a person it has indicted pursuant to its national law. However, it would do so in accordance with its own legal system. The consequence would be a two-tier justice system which would result in the accused being treated unequally and there being possible inconsistencies in the case-law. This does not even take into account the fact that the Prosecutor would, in any case, have to consent not to make a deferral request. Moreover, the whole issue of the confidentiality of documents relating to witness protection would remain completely open. Moreover, an amendment to the Statute and a provision under that State’s law would need to be drawn up if a State wished to try a person indicted by the Prosecutor pursuant to the provisions of the Statute. However, the main disadvantage of the measure would be that the very concept of unified international criminal justice would disappear or at the very least be eroded. This would go against all the efforts expended to establish an International Criminal Court. Conclusion Regardless of the undeniable and not inconsiderable advantages of the measure, the judges are of the view that the disadvantages far outweigh them. It is also appropriate to note that in the short term the measure could not be applied to the States from the Balkans due both to the political climate and the issue of the safety of the witnesses, victims, accused and judges. Accordingly, the judges do not advocate the measure in terms of gains of productivity. Important comment: trials in the Balkans One variation on this measure might consist of the countries from the Balkans trying persons accused of serious violations of international humanitarian law themselves. Naturally, those persons falling within the parameters of the Prosecutor's criminal policy would not be tried in this way. Consequently, it is not unthinkable that those same countries might be induced to try persons indicted by the Prosecutor under the supervision, for example, of international observers. In this scenario, the ICTY would concentrate on a restricted number of high-ranking leaders (Nuremberg model) and would, in any case, retain competence on appeal. These solutions appear premature, notwithstanding encouraging political developments in some countries, especially Croatia. b. The creation of a second tribunal Description This measure
entails the creation of a new judicial organ in the Balkans with competence similar to
that of the Tribunal. Such a tribunal would call upon both national and international
personnel and judges. By way of example, one might think of the creation of a tribunal as
part of the mandate of the United Nations Mission in Kosovo Interim Administration whose
jurisdiction might partially overlap with that of the ICTY13. Advantages The immediate benefit is clear because each trial conducted at the new tribunal would be deducted from the case-load of the Tribunal. This would markedly increase the visibility of the trials to those facing trial and would bring justice closer to the victims as well as having a pedagogical effect on all the citizens from the former Yugoslavia involved. Not insignificant material savings might also be expected, especially in respect of testimony and transporting the victims and witnesses to the seat of the local tribunal. Disadvantages The creation of a new organ entails a complex legal and political process; moreover the reasons why the decision was taken to set up the ICTY outside the former Yugoslavia still remain as clear as ever. A two-tier justice system would be instituted which might lead to the accused being treated unequally and to inconsistencies in case-law. Moreover, the Prosecutor’s criminal policy is increasingly aimed at the senior officials such that the gains in productivity made from the second tribunal might be limited to only a few cases. Lastly, it is to be expected that the overall material cost of setting up such an organ would be considerable without this however markedly reducing the present cost of the ICTY. Conclusion It appears that this solution could not be implemented rapidly and the anticipated gains in productivity would be marginal. Accordingly, the judges do not advocate the measure, at least not as part of this management study. c. Absorption by the International Criminal Court Description This measure would involve all or part of the Tribunal’s case-load being transferred to the new International Criminal Court (ICC). Advantages The immediate benefit would be obvious because each trial transferred to the new ICC would be deducted from the Tribunal’s docket until the ICTY’s case-load was exhausted. Another effect of such a transfer would be to reinforce the notion of international criminal justice rendered by a conventional organ. This would also make it possible to get the ICC "up and running" before it exercises its jurisdiction over new armed conflicts. Disadvantages There are many legal disadvantages. The Treaty of Rome would first have to enter into force and this could take some time. In addition, since the ICTY and the ICC have totally disparate ratione temporis jurisdiction, the Statute must be modified by the Security Council as must the Treaty of Rome by the States party thereto. One preliminary question arises: how to organise the link between a conventional institution and a subsidiary organ of the Security Council from the viewpoint of the rules of international law? Conclusion The judges are of the view that in the best of cases this measure can only be applied after a considerable amount of time, given in particular the pace of ratification. Moreover, even if this solution is tempting in the long-term, the judges consider that it constitutes no more than the simple transferral of ICTY problems to another international court. The judges do not therefore advocate the measure – at least in the short term. 2 Measures involving the Tribunal more directly a. Holding trials away from the seat of the Tribunal Description Holding trials away from the seat of the Tribunal is provided for under Rule 4 of the Rules of Procedure and Evidence which allows a Trial Chamber to exercise its functions away from the seat of the Tribunal in the interests of justice if so authorised by the President. Hence, the Rule permits the judges of the Tribunal to hold trials or trial phases, such as victim-witness hearings, in the Balkans. Advantages The benefit in terms of visibility is considerable. It would bring justice closer to those facing trial but above all to the victims. The pedagogical impact, closely linked to the deterrent and peace-making component of the Tribunal’s mission, would unquestionably be heightened. Disadvantages There are several. The main disadvantage is that the measure would have no impact on the case-load of the Tribunal. The opposite might even prove to be the case because the trials would be more complicated and longer, even without adding the problems that the judges and members of staff involved would have in carrying out other tasks whilst away from the seat of the Tribunal. In light of the current climate in the territory of the former Yugoslavia, security requirements would be great, particularly for the victims, witnesses and judges. Lastly, despite some material savings made on the transportation of victims and witnesses, the overall cost of such an operation would be much higher. Conclusion Regardless of the considerable benefit of increased visibility, the judges have arrived at the conclusion that the measure cannot, at least for the moment, positively impact on the management of the Tribunal’s case-load. The measure is accordingly not advocated by the judges in terms of gains in productivity. b. Holding trials before a single judge Description The goal of the measure is to enable a judge to preside over a trial alone rather than with two other judges as is currently the case. Advantages As this would increase the productivity of the Tribunal threefold, it goes without saying that the impact on the Tribunal’s docket would be considerable. Moreover, this is a classic solution recommended and established in practice by many national criminal systems confronted with problems in the rise in crime and overloaded courts. Disadvantages The main concern is to establish whether the practice is acceptable for international trials. Given the complexity of the cases and the applicable international norms, the judges think not. Furthermore, this possibility was examined and then discounted by the drafters of the Statute. Conclusion Despite the considerable advantage to be gained in productivity, the judges are not considering this compromise because the credibility of international justice would be too seriously affected. Accordingly, the measure is not advocated. c. In absentia trials The measure is raised only for the record. The matter was debated and discussed on several occasions and may consequently be considered closed14. The situation would be quite different for detainees who were granted provisional release and then failed to return for their trial. The matter is under discussion with a possible amendment of the RPE in mind15. An in absentia trial does not in any case appear to be such as to resolve greatly the issue of the number and length of the trials. Quite on the contrary, it would increase the workload of the Tribunal since the accused would have to be retried following arrest. d. Creation of an additional trial chamber Description Creation of three additional posts for judges, making up a fourth trial chamber. Advantages Immediate benefit: the new trial chamber could be up and running almost immediately, after new judges are elected. The courtrooms presently available are running at 70 – 75% capacity and could in principle absorb this increase in activity. A greater number of judges would add to the degree of flexibility available in composing Chambers, especially on appeal. Disadvantages This would require a modification to the Statute and accompanying measures (creation of legal officer and secretary posts). Increased productivity in the first instance would ultimately increase the workload of the Appeals Chamber. Moreover, if the new judges were not to compose a new trial chamber but instead all the Trial Chambers were recomposed as when Trial Chamber III was created, the transition period required for reducing the number of ongoing cases would be drawn out16. This solution, which had already been taken up and deemed valid in 1997, would now lack flexibility. It would not take into account developments in the workload and would have to be rethought once more if the workload were to grow. Finally, it would add to the burden of the Appeals Chamber. Conclusion Productivity in the first instance would grow by approximately 30% in total by reassigning some of the case-load of the three extant Trial Chambers. The time-frame for commencing a trial on the merits could be brought down to the absolute minimum required for pre-trial preparation (8 months on average). To illustrate how the measure might help with the ongoing cases as they currently stand and by referring to the chart on page 10, it can be deduced that the transferral of one existing case from each of the Trial Chambers to the fourth Trial Chamber would go to reducing the projections made on page 11 by one third, i.e. by about one year. Thus, the whole of the current case-load could be disposed of in the first instance by the middle of 2002. This gain in productivity mathematically projected onto the trial of those at large and the trial of new cases could reduce in the same proportions the length required for disposing of these cases, that is: Trial of
those at large late 2005 (instead of 2007) Three further mandates after 2001 might then be required to try all the cases in the first instance. The judges believed that the measure would be the perfect solution to the present case-load, that is not taking into account those still at large and new investigations. However, it does not enable us to address such a heavy workload in the long term. All of the measures described above have been dismissed for the reasons indicated. Nevertheless, it is clear that the creation of an additional trial chamber would seem on the surface to be a satisfactory solution for a limited period. In consequence, I believe that I must recommend other measures which are bolder and probably more effective in the medium and long term. B Recommended solutions The Judges deemed that it was still possible to increase productivity by intensifying the dynamism of a case’s pre-trial preparation. However, in so doing, if the number of trial-ready cases is greater and the cases are likely to spend less time in trial because of the very careful preparation put into them, is it not then appropriate to envisage a system with additional judges more specifically dedicated to hearings and rendering decisions. This is the principle of ad litem judges which was previously outlined in recommendation no. 21 of the Group of Experts. The combination of these two measures is advocated. What is sought above all else is the flexibility in how they are used and their lowest possible cost. The guiding principles supporting the proposed solutions are as follows:
1 Partially delegated pre-trial management Description The senior legal officers of the Trial Chambers would be invested with some of the pre-trial judges’ powers to take judicial administrative decisions (setting deadlines, hearing witnesses by deposition …). Truly jurisdictional decisions would however be excluded from this transfer of duties. The legal officers could write up a form of procedural summary17 and report to the full bench of judges who would supervise the pre-trial preparation. Amendments to the RPE (Rule 65 ter) would have to be considered. Such amendments could be exploited to simplify the form of the status conferences which could be held in chambers with the representatives of the parties and a court deputy taking the minutes. Advantages Pre-trial preparation would be noticeably expedited and down-time during the preparatory proceedings cut out altogether. The trial would be better prepared and reduced to the actual factual and legal points of the case in issue. The trial ought to be shortened in most instances. The judges could concentrate on the trial and maintain the proper distance from the two parties. The detainees would perceive that their case was "advancing" from the moment they were arrested. Thus, the overall procedural schedule could be set, at the earliest after the initial appearance. The proceedings would be managed in real time. The Defence would become involved in the general progress of the case at an earlier stage. Disadvantages The solution would not resolve the bottleneck at the trial stage. The time required for actual pre-trial preparation would admittedly be reduced – probably to about 6 months – but the overall trial capacity of the Trial Chambers would stay the same. This formula in no way addresses the problem of the often complex preliminary motions and the interlocutory appeals which would remain within the province of the judges. A training and adaptation period would be necessary for the legal officers so that practices could be harmonised. Anticipated results The judges could devote more time to the trials on the merits and to producing decisions. The pre-trial preparation would be expedited and a slight improvement ought to be seen in the overall length of the proceedings. A limited quantity of additional human and material resources seem necessary. The solution would have a true impact only if combined with a substantial increase in the Trial Chambers’ trial capacity. 2 Increase in trial capacity The measure was debated in plenary. The outcome of these debates was a clear consensus on the principle of the formation of a pool of ad litem judges. Description The general principle is that of the formation of a pool of judges made available to the ICTY to serve in one of the Trial Chambers for a single given case according to need. The mechanism would operate as follows: if none of the Trial Chambers was available to hear a case as soon as its pre-trial preparation had been completed, judges from the pool would be called upon to constitute an ad litem Trial Chamber. Advantages The productivity of the Tribunal would be increased in multiples of 30%18 depending on the choices made from amongst the options suggested. The formula would offer a great degree of flexibility insofar as it could be activated or deactivated according to need. The involvement of States in the accomplishment of the ICTY’s mission would be noticeably more universal or, at the least, there would many more States involved. Disadvantages The measure requires a modification of the Statute (admittedly limited) and perhaps the agreement in principle of the General Assembly on the selection and financing process. Several additional legal officer and support staff positions would have to be opened up. The issue of additional premises where hearings could take place would have to be examined. The Investigations Division of the Office of the Prosecutor would have to be provided with additional resources. Conclusion The measure alone is such as to enable the Tribunal to tackle the ebb and flow of the cases however many there may be. This is why the judges unanimously advocate the measure. The table comprising annex 2 shows how the entire current and future case-load would be completely disposed of in the first instance by late 2007 instead of 2016 (cf. data on page 13). During their debates at the extraordinary plenary, the judges addressed the main problems raised by the adoption of the measure, using the observations of the Rules Committee as a starting point. Without prejudicing the opinion of the Office of Legal Affairs, the judges discussed the following points:
- Principles
of balance and international representation ("no more than one judge per State") Moreover, the judges unanimously favoured the possibility of making use of former judges of the ICTY and ICTR.
In support of proceeding by appointment, it was noted that the system is more flexible and is already provided for by Article 13(3) of the Statute without this affecting the legitimacy of the judges.
3 Combination of the solutions: legal officers delegated to perform pre-trial functions + ad litem judges In order to magnify the anticipated results, the proposal has been put forward to combine the two systems explained above. Description The system would combine systems 1 and 2 above. Temporary judges would be called upon to sit in specifically designated trials. The pre-trial preparation would to a large extent be carried out by senior legal officers delegated by the Trial Chamber. Advantages The method would allow the advantages of both systems to be combined – pre-trial preparation would be expedited (real time management), the judges would be more available to devote time to the merits of the cases, one or more additional Trial Chambers would be formed and further support would be available for the Appeals Chamber. Disadvantages Cf. above – requires amendment of the Statute and RPE. Acceleration of the disposal of cases in the first instance would probably lead to an increase in the workload of the Appeals Chamber (see below). Complementary solutions would have to be found for appeals proceedings. Plans would have to be made for additional resources such as legal officers and others, e.g. translators, and possibly for technical resources (courtrooms, technicians etc.). The Investigations Division of the Office of the Prosecutor would have to be provided with additional resources. Conclusion Overall productivity in the first instance would clearly be increased considerably. Quantifying the gain was not deemed a useful exercise as this would depend on the extent to which ad litem judges were called upon. "Just in time" disposal of cases might be considered. As of the initial appearance, or over the following days, the full schedule for the case could be set. For example, the impact might be appraised as shown in the table comprising annex 2 – in the short term the entire present case-load would be tried before the end of 2002 instead of 2003. However, it is in the long term that the gain would become significant. By making optimal use of the ad litem judges, it might be hoped that the entire present case-load plus the cases relating to those at large and the future cases would all be completed in the first instance around late 2007 rather than late 2016. In opting for this type of solution, the judges did not however under-estimate the difficulties involved. They wished to study all its effects, whether in terms of texts to be amended (especially the Statute) or modifications to be made to the Tribunal’s internal organisation (see point 2 page 27 above and annex 3). Apart from the reasons set out above which led the judges to adopt unanimously this proposal, the impact of the combined measure on the productivity of the Tribunal is an essential supporting factor. The Appeals Chamber For the reasons set down above, the impact on the Appeals Chamber would be difficult to measure at the present moment. Nevertheless, the judges considered that making use of ad litem judges should not be dismissed out of hand. However, given that this is a problem which affects both of the Tribunals, it was held to be more appropriate to take up the opinion stated by the Group of Experts in paragraph 107 and recommendation no. 20 of its report. The recommendation consists of adding two new judges to the Appeals Chamber. The two judges would come from the Rwanda Tribunal and would sit in The Hague hearing all appeals whatever their provenance. This solution was unanimously ratified by the judges of the ICTR upon consultation in plenary in Arusha on 18 February 2000. It would have several advantages: - it would be relatively easy to implement except for modifying the Statute; - it would enable the problems of an overloaded Appeals Chamber to be resolved in the near future, all the more so since measures under the Rules of Procedure and Evidence to curb interlocutory appeals have been adopted and agreements with the Registry in Arusha to facilitate liaison between the ICTR Registry and the judges in The Hague are currently being firmed up. - it would definitively associate the ICTR with the Appeals Chamber. - whilst recognising the advantage of making possible use of ad litem judges, the solution advocated would have the major advantage of consisting of a stable appeals bench which is essential for consolidating and standardising the case-law. - an end would thereby be put to the presently unavoidable and often criticised mixing of Trial Chamber and Appeals Chamber benches which some of the Group of Expert’s recommendations focus on. CONCLUSION This is the first time the Tribunal has attempted to make a projection into the future working from a critical assessment of its activity and the appraisal of the Group of Experts. The only goal of the judges in this assessment was to improve the Tribunal’s operation and, in particular, to shorten trial length and time spent in detention. The first concern of the judges was to make it possible for the General Assembly, the Security Council and the Secretary-General to take the best decisions in order for this historic institution, whose credibility is at its highest, to be able to continue to meet the expectations of the international community. They also wished to provide the decision makers with the information necessary for evaluating the number of mandates required. The proposed solution has sufficient flexibility to allow the Tribunal to adapt to the possible developments in the Prosecutor’s criminal policy, especially in terms of indictments and arrests, whilst also keeping in mind the major administrative principles which govern the Organisation and budgetary necessities. Finally, the solution creates a synergy between the reflective and active contribution of the judges and the requisite support they expect from the international community to enable the Tribunal to accomplish its mandate. The judges are not blind to the fact that the conditions for such a reform of the Tribunal may appear cumbersome and complex. They recall, as did the Group of Experts in their recommendations, that: "To the extent that there may have been expectations that the Tribunal could spring to life and, without going through seemingly slow and costly developmental stages, emulate the functioning of mature experienced prosecutorial and judicial organs in national jurisdictions in adhering to a high standard of due process, such expectations were chimerical. No system of international justice embodying standards of fairness, such as those reflected in the creation of ICTY and ICTR, would, under the best of circumstances, either be inexpensive or free of the growing pains that inhere in virtually all new organizations." ANNEXES:
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