The Hague, 24 November 2000
JL/P.I.S./542-e

Once again it is my honour to have this opportunity to appear before the Council to give a briefing on the work of the Prosecutor’s Office in Rwanda and the former Yugoslavia. Since I last addressed you, important developments have taken place in both Tribunals.

In recent months I have spent a considerable amount of time in Arusha and Kigali on ICTR business. In that Tribunal we have just passed through a difficult period of reorganising the caseload, and getting cases ready for trial. A great deal of legal and organisational work was done behind the scenes in the pre-trial stages of the biggest cases. During that time we did not see many prosecutions underway in the courtrooms, and that is always a source of concern to a prosecutor, particularly when accused persons are in custody. However, I am pleased to be able to report that some of these big cases have now started, and others are scheduled in the court timetable to begin very soon.

At present 44 accused are in custody. Three trials, involving 7 accused are in progress. A further 8 cases involving 22 accused are at the pre-trial stage and will become progressively ready to begin between now and June next year. Among them are the two "government" cases (the senior ministers) and the "military" case (the high-ranking army figures). In all these cases we were not able to begin the trials until pre-trial legal motions had been decided. Another of our biggest cases, the "media" case started last month. That is the prosecution in which evidence is being led about the alleged central role played by the media in the Rwandan genocide. The case is recognised as breaking new legal ground, and is attracting a great deal of interest.

In addition to the work of trials, the Tribunal has heard and decided a number of important appeals. Two of those were heard during my last trip to Arusha, but shortly before that, the Council will perhaps be aware that former Prime Minister Jean Kambanda was unsuccessful in his appeal against his conviction and his sentence of life imprisonment. It is encouraging for me as prosecutor to see that the convictions we were able to obtain before the Trial Chambers are able to withstand the scrutiny of Appeal Court Judges. For my Office, this means that the job of prosecuting these enormous crimes can be done and is being done to the necessary high criminal standard.

The Rwanda Tribunal is therefore entering a very intense period in its mandate. The coming months will see the most senior figures face justice. These trials will be the most serious prosecutions the Tribunal will ever have to deal with. They are the reason the Tribunal was created, and we have been waiting for these cases to come to court for many months. Now, at last we will see in public the results of all the preparation that has been done.

In the ICTR there will also be other cases in the pipeline. Our investigations continue, and I hope to be signing 5 significant new indictments in the coming weeks. I believe there are good prospects of several new arrests before the end of the year. Thereafter I will make it a priority to draw up a longer term plan for our investigations, and I will present that to the President of the Tribunal as a basis for the kind of strategic forward planning of the Rwanda Tribunal’s mandate. I agree that it is now the right time to undertake such an exercise, and I believe that we have now reached a sufficiently advanced stage in our information gathering to make that kind of exercise worthwhile.

In short, we can expect considerable progress to be made in the Rwanda Tribunal in the coming months. But I would like to see progress made outside the courtrooms and in other areas. We must make our work more relevant to the people of Rwanda. A new information centre has been opened in Kigali, but I would like to go further. I will ask Trial Chambers to hold hearings in Rwanda, instead of Arusha, so that the people of Rwanda can see at first hand the contribution being made by the international justice system to the restoration and maintenance of peace and security. Holding trial hearings in Rwanda itself will also greatly improve access to the court for witnesses and victims. The situation in Rwanda has greatly improved since 1994, and our relations with the Government has now reached a stage where proper guarantees can be given and relied upon for the holding of ICTR trials in Rwanda itself. Indeed it might even be possible to contemplating moving the entire Tribunal to Kigali. Nothing would more powerfully demonstrate the international community’s commitment to justice.

Nor should we forget the role of victims in the justice process. The voices of survivors and relatives of those killed are not sufficiently heard. Victims have almost no rights to participate in the trial process, despite the widespread acceptance nowadays that victims should be allowed to do so. And those remarks apply equally to the Yugoslav Tribunal, where the position of victims is no better, and where the accused have also amassed personal fortunes at the expense of their country and its citizens. I believe that the judges share my views in principle, but do not favour giving the Tribunal itself the task of compensating victims, preferring to create a Claims Commission or its equivalent. It is regrettable that the Tribunal’s statute makes no provision for victim participation during the trial, and makes only a minimum of provision for compensation and restitution to people whose lives have been destroyed. And yet my office is having considerable success in tracing and freezing large amounts of money in the personal accounts of the accused. Money that could very properly be applied by the courts to the compensation of the citizens who deserve it. We should therefore give victims the right to express themselves, and allow their voice to be heard during the proceedings. In the event of a conviction, that would then create a legal basis for the Judges to decide upon the confiscation of monies sequestrated from the accused. The money might also go towards defraying the costs of the prosecution. I would therefore respectfully suggest to the Council that present system falls short of delivering justice to the people of Rwanda and the former Yugoslavia, and I would invite you to give serious and urgent consideration to any change that would remove this lacuna in our process.

Mr. President, let me now turn to the ICTY, and first I would like to give the Council an updated account of our work in Kosovo. As the Council will recall, just as soon as our teams were able to gain access to Kosovo, we embarked upon an ambitious project of exhuming and forensically examining mass graves throughout Kosovo. In 1999 we recovered 2108 bodies from 195 locations. That was as much as could be achieved last year. This year, I was eager to complete the task before evidence deteriorated or was lost. Again working with the assistance of professionals provided to my Office by UN Member States and Switzerland, our teams assessed a further 325 sites, exhumed 1577 bodies and found incomplete remains in a further 258 instances. Pathologists conducted 1807 autopsies on the victims. As a result we have finished our exhumation programme and can now build up a complete picture of the extent and pattern of crimes. My Office has not received all the reports from the various forensic teams and our provisional total over the two years is therefore that almost 4000 bodies or parts of bodies have been exhumed and examined. Of course it will never be possible to provide an accurate figure for the number of people killed, because of deliberate attempts to burn the bodies or to conceal them in other ways.

I might add that in Croatia and in Bosnia and Herzegovina we also conducted exhumations at 8 sites, from which 491 bodies were recovered, as well as many parts of human bodies. A total of 619 autopsies were performed, that figure including not only autopsies on bodies from ICTY exhumations, but also some autopsies which we performed, on behalf the Bosnian Commission on Missing Persons, on bodies exhumed by the Bosnian authorities. Next year we intend to continue with this exhumation work in Croatia and Bosnia.

Before I leave the subject of Kosovo, I would merely add that my office has received a number of passionate pleas to investigate allegations of continuing ethnic cleansing against the remaining Serb and Roma population. This is unacceptable and sows the seeds of future revenge and lasting instability in the region. For the Tribunal’s jurisdiction to encompass crimes against humanity committed in Kosovo after the deployment of KFOR, Article 5 of the Tribunal’s Statutes should be modified and the reference and requirement for there to be an "armed conflict" should be omitted, which would make it compatible with the statute of the Rwanda Tribunal. ICTY’s forced inaction on what has been happening in Kosovo since June 1999, undermines the Tribunal’s historical credibility. We must ensure that the Tribunal’s unique chance to bring justice to the populations of the former Yugoslavia does not pass into history as having been flawed and biased in favour of one ethnic group against another. Besides, if we obtain this morally justified and necessary extension of our mandate, the Tribunal might become a deterrent factor against the ongoing ethnic-cleansing campaign in Kosovo.

The Council would be aware that, as the Tribunal’ Statute is presently drafted, the requirement that crimes are linked to an armed conflict effectively precludes my Office from dealing with on-going crimes in Kosovo. They lie outside the Tribunal’s jurisdiction. I therefore formally request the Council to extend the Tribunal’s jurisdiction in this respect.

Mr. President, this year I have also spent considerable time in discussions with the Croatian authorities about the level of co-operation being given to the ICTY. There has indeed been an improvement in relations when compared with the previous policy of obstruction and delay adopted by the former government. When I last addressed the Council, I made that clear, but I also expressed a reservation that only time would tell whether Croatia would deliver on all its promises. I would like to be able to say that all problems have been completely removed, but I cannot. Where Croatia perceives co-operation to be against its political or narrow security interests, a real difficulty still exists. One long-standing problem, namely the provision of Croatian material for use as evidence in the Kordic trial, remains unresolved, and time is fast running out for full compliance with the Court orders that are still outstanding in that case. And in relation to the 1995 Croatian campaign against Serbs in Croatia, known as Operation Storm, we still face a stubborn refusal to allow access to witnesses and documents that are essential for the completion of our investigations. Our work has been seriously delayed as a result. In addition in recent times there have been some very worrying signs that Croatia’s co-operation is starting to take on some very negative aspects, which is being demonstrated by the government leaking details of my requests to the media, with a negative media campaign against the Tribunal accompanying such leaks. This is a very disappointing development, and cannot be allowed to continue. Accordingly, it gives me no pleasure to have to say that I was right to reserve judgement earlier, and that my initial reservation was well founded. It is very sad that the improvement in co-operation in most all other areas can be completely undermined by obstruction on a few key issues. I call on Croatia to overcome this remaining problem and return to the path of full co-operation with the Tribunal, and I invite the Council to intervene to ensure that Croatia finally co-operates fully with the Tribunal.

On a different topic, I am concerned about the rate at which indicted persons are being arrested. I notice that recently far fewer arrests have taken place. The last detention by SFOR troops was of Dusko Sikirica in June this year. But at the beginning of this year detentions had been occurring at the rate of approximately one per month. There may be no single explanation for the reduction in the number of arrests, but nevertheless it is disturbing to see that there have been no arrests in the second half of the year. Over recent months I have also been recommending the formation of a special police task force, which would have jurisdiction over all of Bosnia and Herzegovina, and which would have the responsibility of apprehending indicted fugitives. Unfortunately my suggested initiative has not yet been adopted. It also appears that we can take little comfort from the results of the recent elections in Bosnia, after which we cannot expect any improvement in the attitude of some of the local authorities towards co-operation with the Tribunal. I would go even further and observe that the outcome of these elections is a direct consequence of the lack of resolve shown by the international community with respect to apprehensions. By allowing the main culprits of the Bosnian war to continue to enjoy freedom, a wrong message was sent, both to the people and the politicians of Bosnia: namely, that criminal nationalism and its promoters are and shall remain beyond the reach of Justice, and the threatening words of the international communities are just that, words. Let us put an end to this dangerous situation, for the sake of comprehensive justice, lasting peace and reconciliation. Once again I urge the international forces in Bosnia, to be robust and positive in their approach to the issue of apprehending all remaining indicted fugitives.

In the meantime, however, there is no shortage of trial work in the ICTY. I have many cases before the Trial Chambers and the Appeals Chamber, where significant appeals decisions are expected shortly establishing, among other things, further jurisprudence on important issues of command responsibility, and the law of genocide. In the Trial Chambers, four prosecutions are now nearing completion. These include the trial of General Krstic for crimes in Srebrenica, and Dario Kordic, who is accused of being responsible, as a senior politician, for crimes in the Lasva River Valley in central Bosnia. One new trial, dealing with sexual offences in Foca opened on 30 October, and a further 8 cases are either ready for trial or being prepared for trial during the first half of 2001. These prosecutions will cover crimes in Sarajevo, in the Krajina, and the prosecution of Momcilo Krajisnik will be the first case to explore the responsibility of the Bosnian Serb leadership at the highest level.

In addition, our investigations continue, and more indictments can be expected in the coming months. My office is therefore working under considerable pressure simultaneously on a number of fronts: new investigations; preparation of indictments; pre-trial activities; the actual conduct of trials themselves – in which we must achieve both speed and fairness; and finally concluding all resulting appeals. We therefore have a considerable workload before us.

In completing my report on my activities, Mr. President, I must, of course, make reference to the recent developments in Belgrade, which have led to the removal of President Milosevic from office, the lifting of sanctions, and the return of the Federal Republic of Yugoslavia into the international community. The world has embraced President Kostunica despite the fact that he has repeatedly said that co-operation with the ICTY "is not a priority" for him. If he chose that phrase himself, I admire him – it is a clever line, one capable of different interpretations – a true politician’s phrase.

But it is not a solution either, and the Milosevic question cannot so easily be brushed aside. Milosevic must be brought to trial before the International Tribunal. There simply is no alternative. After all the effort the international community has invested in the Balkans to restore peace to the region, after the weeks of NATO bombing to prevent massive human rights abuses against the citizens of Kosovo, and given the enormous residual power and continuing influence of the hard liners in Belgrade, it would be inconceivable to allow Milosevic to walk away from the consequences of his actions. It is not enough to say that the loss of office is punishment enough, nor is it satisfactory to call him to account for election offences or some such national proceeding. We have already seen that there can be no "deals" with figures like Milosevic. It is to the great credit of the international community that the temptation to offer him an easy escape route was resisted. The consequences for international criminal justice would have been devastating, if that had happened. I urge the Security Council not to allow the same result to be achieved in slow motion by lingering inactivity. It is of crucial importance that double standards be avoided in dealing with the FRY, Croatia and Bosnia and Herzegovina. Any softening in the position adopted by the international community towards Yugoslavia will encourage other states to discontinue their co-operation with ICTY. And we should not forget that other fugitives, such as Ratko Mladic, are in FRY. The authorities must also co-operate with the Tribunal in the arrest of these persons.

I intend to raise the question personally with President Kostunica, who last week invited me to begin to make arrangements for me to travel to Belgrade in the near future. Whatever President Kostunica may say, the surrender of Milosevic is a priority. It is a priority for him; it is a priority for me; and it should, in my submission, also be a priority for the Security Council of the United Nations, which created the ICTY as a sub organ of the Council, under Chapter VII of the UN Charter, not as a quick fix to a political crisis, but as a serious and lasting contribution to creating a meaningful and durable peace in the Balkans.

Finally, Mr President, I feel compelled to make a few brief comments about some remarks made yesterday by the Russian representative in the General Assembly, which were made in response to a report of the President of the Tribunal, Judge Jorda. The Russian representative criticised the Tribunal, accusing it of being a political institution; of being anti-Serb; of being over-resourced; of improperly issuing sealed indictments; of being less than diligent in my examination of NATO following the bombing campaign last year; of entering an illegal agreement with NATO; and worst of all, that the Tribunal was a threat to the unity of accepted international law and that by making new legal interpretations, the Tribunal was thereby creating anarchy in the international law. I must say, Mr President, such allegations are offensive and are without any foundation. I could respond separately to each of these serious but unfounded allegations but I would be abusing the time that you have given to me to make my report. Any objective examination of the Tribunal’s work, would clearly demonstrate that the remarks of the Russian representative in the General Assembly yesterday, are without any basis. I hope that I do not hear such allegations repeated again today. I am doubly disappointed that such statements were made because, unless they are maliciously or politically motivated, they have been based on misunderstandings, which could have been clarified had the Russian government responded to my many requests for my visit to Moscow to discuss the work of the Tribunal.

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