4999th Meeting (AM & PM)
SECURITY COUNCIL TOLD OF FINANCIAL, STAFFING, COOPERATION SHORTFALLS
THAT THREATEN OPERATIONS OF INTERNATIONAL WAR CRIMES BODIES
Failures by Member States Might Keep Tribunals
For Rwanda, Former Yugoslavia from Meeting Deadlines, Top Officials Warn
Top officials from the United Nations tribunals trying cases stemming from the 1994 Rwanda genocide and the Balkan wars of the 1990s told the Security Council today that serious financial and staffing shortfalls, as well as the failure of some regional States to execute outstanding arrest warrants for high-priority fugitives were affecting operations and could delay the completion of their work by the Council-imposed 2008 deadline.
In an open briefing, Theodor Meron, President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), gave a detailed overview of the Tribunal’s current productivity rate, highlighting the steps taken to ensure that its mandate was carried out within the 2008 completion strategy deadlines, including by ensuring that the Trial Chambers continued to work at capacity, and reducing the length of appeals and judgements in the Appeals Chambers.
But he warned that the “rigid and mechanistic” pursuit of deadlines must not detract from the Tribunal’s basic purposes, which were to administer justice even-handedly and to contribute to the restoration and maintenance of peace in the region. The pressure to end trials and a lack of adequate funding might undermine the body’s significant work thus far, he added.
The Hague-based Yugoslavia tribunal and the International Criminal Tribunal for Rwanda (ICTR) in Arusha, United Republic of Tanzania, are to complete investigations by the end of 2004, end trials by 2008 and close down before the end of 2010.
Judge Meron said that, under the completion strategy, the ICTY would practically have to work at full speed and capacity to the very end of its existence. So, unless it was able to replace staff in critical posts, the Tribunal would be forced to delay, suspend or stop trials, which would be disastrous in terms of its ability to remain on track with the deadline. That problem had been made worse by arrears in the payment of assessments by Member States, which had led the Secretariat to impose a recruitment freeze in May. “The international community cannot expect the Tribunal, on the one hand, to complete its work in an efficient and effective manner, while on the other hand, withholding the necessary resources to ensure that the Tribunal is able to function”, he added.
Carla Del Ponte, lead Prosecutor for the ICTY, echoed that sentiment, saying her Office had been “badly hit” by the hiring freeze. While the Prosecutor’s Office remained committed to the deadlines and would continue to streamline its trials and appeals, there were many other exigencies beyond its control, namely, the arrest of fugitives, the appearance of witnesses and the emergence of crucial evidence, which required the participation and cooperation of States.
The failure of the Republika Srpska in Bosnia and Herzegovina, and Serbia and Montenegro to arrest or obtain the surrender -- voluntary or through coercive measures -- of 20 indicted persons who remained at large was critical, she stressed. “An unintended consequence of the completion strategy is that fugitives and their protective networks are trying to buy time until 2008, in hopes of evading justice, as they believe the time to be tried in The Hague will soon expire.”
Expressing her sense of futility, she described her reluctance to share information with regional officials, because the last time she had passed precise information to Serbian authorities regarding a high-level fugitive charged with the Srebrenica genocide, she had been told that, due to political circumstances, “it was not opportune to arrest him and he had since disappeared. She appealed for a statement from the Council that would keep the Court running until key fugitives Radovan Karadzic, Ratko Mladic and Ante Gotovina were arrested and handed over to The Hague.
Erik Møse, President of the Rwanda Tribunal, said that, while the ICTR was on schedule, having completed 15 judgements involving 21 accused, as promised in October 2003, the question remained as to how many additional accused it could deal with by 2008. The completion strategy had indicated an estimate of 65 to 70 persons, including 10 of the 15 detainees presently in Arusha. Of the 17 detainees, the Prosecutor would try to bring 13 to justice in Arusha and seek the transfer of four accused.
The 2008 deadline would be respected, provided the Tribunal had the necessary resources, he stressed. Although budgetary issues were not the Council’s responsibility, the fact that some States had not paid their contributions to the ICTR could threaten the completion strategy. The present freeze in recruitment might have serious consequences for all branches of the Tribunal.
The ICTR Prosecutor Hassan Jallow said the number of accused to be prosecuted between now and the end of 2008 was greater than the number of those whose cases had been concluded in the period from the ICTR’s inception to date. Meeting that challenge required new strategies aimed at streamlining processes, eliminating duplication, and improving coordination. He expected that investigations on new indictments would close by the end of 2004. By the end of October 2005, it was proposed to have completed the review of the evidence and the filing and confirmation of any new indictments.
He said that all plans and benchmarks were premised on having in place a full complement of prosecuting staff with adequate budgetary support. In the absence of such support, the attainment of the completion strategy was at risk. The discharge of the Tribunal’s mandate depended largely on the level of international cooperation it received and it would continue to rely on the global community to help track and apprehend suspects/accused, in the acceptance of cases for prosecution by national jurisdictions, and in the relocation and protection of witnesses.
Security Council members acknowledged the difficulties facing the Tribunals as the completion strategy targets approached. They, nevertheless, urged them to stay the course, citing the important impact their work would have on efforts to ensure national reconciliation and peace in both the Balkans and the Great Lakes region of Africa. Council members also urged Member States to live up to their financial obligations.
The representative Bosnia and Herzegovina said that in 2003 and 2004, cooperation with the ICTY had been his Government’s top priority. All the required legislation was now in place, the Criminal Code had been amended to include a provision regarding war crimes, and the Special Chamber of the State Court would be operational soon, pending the availability of funds donated by the international community.
There were countless examples of judicial assistance extended by the Federation’s courts to the Tribunal, he said. Several attempts to arrest indictees had been made in the recent past, yet the ICTY had deemed them insufficient, which had hindered the country from gaining access to the Partnership for Peace and to the European Union. “Hence, we remain the hostages of Radovan Karadzic and the like, who see our difficulties as their strength and our failures as their victories”, he added.
The representative of Serbia and Montenegro said that any evaluation of cooperation had to be based on facts, not on preconceived political perceptions. The Government had carefully studied the report before the Council, particularly the assessments on the country’s cooperation with the ICTY, and the criticism advanced by the Prosecutor’s Office regarding cooperation.
He conceded that cooperation with the Prosecutor’s Office had been of “somewhat lower intensity” owing to circumstances arising from the political situation in the country. All energies at the time had been focused on ensuring political stability, preserving and building institutions and continuing with reform processes. However, even in the face of such difficulties, and given that the new National Council for Cooperation with the Tribunal had not yet been constituted, efforts had been made to sustain basic cooperation.
Rwanda’s representative said the appointment of a separate Prosecutor for the ICTR had resulted in better organization and greater focus. There had also been a dramatic improvement and broadening of communication between the Prosecutor’s Office and the Rwandan Government. The Council must ensure that the suspects who were no longer pursued by the Tribunal did not evade justice altogether. The Tribunal’s completion strategy was, therefore, not an “exit strategy” for the international community.
He said his country would like convicts to begin serving their sentences in the country where the crimes were committed and called upon the ICTR to ensure that countries compromised by the events of 1994 were not given the opportunity to supervise enforcement of sentences. Previous requests in that regard had not been taken seriously on the grounds that detention facilities in Rwanda did not meet international standards. The Government had recently constructed a new detention facility that met international standards.
Speakers today also included representatives of France, Chile, United Kingdom, Algeria, Brazil, Romania, Germany, United States, Russian Federation, Benin, China, Angola, Pakistan, Spain, Philippines and Croatia.
The meeting, which began at 10:32 a.m., was suspended at 1:10 p.m. It reconvened at 3:45 p.m. and adjourned at 5:00 p.m.
The Security Council met this morning to hear briefings from top officials of the two United Nations tribunals trying cases stemming from, respectively, the 1994 Rwanda genocide and the Balkan wars of the 1990s.
In an open briefing last October, the Council considered the Secretary-General’s latest reports on the work of the International Tribunal for Rwanda (document A/58/140-S/2003/707) and the International Tribunal for the Former Yugoslavia (document A/58/297-S/2003/829). At that time, the tribunal officials focused on their work during 2003 and on their strategies to implement the Council-imposed deadline for completion of all trials by 2008, as well as possible difficulties in meeting that goal.
Throughout the past year, Council action regarding the International Criminal Tribunals was geared towards concluding their work in a timely fashion. Resolution 1503 (2003) called on the Tribunals to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008, and to complete all work in 2010. By that resolution, the Council also split the prosecutorial duties for the Tribunals, which, until then, had been the responsibility of a single official.
Resolutions 1504 (2003)and 1505 (2003) appointed Carla Del Ponte as Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and Hassan Bubacar Jallow as Prosecutor of the International Criminal Tribunal for Rwanda (ICTR).
The Tribunals’ respective statutes were amended in resolutions 1481 (2003) and 1512 (2003) to allow ad litem judges, during the period of their appointment to a trial, to adjudicate in pre-trial proceedings in other cases. Resolution 1512 also increased the number of ad litem judges of the Rwanda Tribunal serving at the same time from four to nine. A presidential statement accompanying resolution 1512 allowed the Tribunal to fund the renovation of prison facilities in States that carried out its prison sentences. Resolution 1482 of 19 May extended the terms of office of four permanent judges at the Rwanda Tribunal to allow them to dispose of a number of ongoing cases.
On 29 April, the Council, through resolution 1477 (2003), forwarded a list of 35 candidates for ad litem judges of the Rwanda Tribunal to the General Assembly. On 28 March, it had extended the deadline for nominations until 15 April.
The Council had before it today a letter to the Council President (document S/2004/341) from the President of the ICTR, dated 3 May. It contains a revised version of the completion strategy, as required by resolution 1534 (2004), and states that the trials of 21 persons are completed and that cases involving 21 accused are in progress.
According to the letter, the Prosecutor will focus on the accused bearing the heaviest responsibility for the crimes committed in 1994. Seventeen indicted persons are still at large, of whom the Prosecutor intends to transfer four to national jurisdictions for trial. The Prosecution is currently conducting 16 remaining investigations, which will be completed by the end of 2004. It is estimated that the cases involving 27 accused whose trials will be in progress by the end of 2004 will be completed between 2004 and early 2006. The last of the trials of the remaining 10 detainees, which will commence from 2005 onwards, could be concluded by 2006 or early 2007. Indictees and suspects currently at large will be tried in 2007 and 2008. It is estimated that by 2008, the Tribunal may have completed trials involving 65 to 70 persons.
The Council President has also received a letter from the President of the ICTY, dated 24 May (document S/2004/420) stating, among other things, that the unsealing of new indictments in March and April created additional uncertainties for the completion strategy. However, the Tribunal is still in a position to try, by the end of 2008, all accused currently in detention or on provisional release.
According to the letter, the Tribunal has continued its efforts to lay the groundwork for a smooth and timely end to its operations. Its continued work with the Office of the High Representative towards the establishment of a special chamber within the State Court of Bosnia and Herzegovina is expected to bear fruit early in 2005, at which time the Tribunal could begin to refer eligible cases of lower- or intermediate-rank accused to the Chamber.
Statement by ICTY President
THEODOR MERON, President of the International Criminal Tribunal for the Former Yugoslavia, said it had been nine years since the first accused had been transferred to the ICTY. Since then, the Hague-based body had tried 35 accused to final judgement in a total of 17 trials. Seventeen accused had pleaded guilty and had been sentenced during that period -- most recently, Milan Babic, who had pleaded guilty in January 2004 and whose sentence had been rendered just this morning.
He went on to say that a further eight accused were currently being tried in six separate cases. As of today, the Tribunal had either completed or was holding trials -– in the case of guilty pleas, sentencing proceedings -- involving 59 defendants. Currently 33 accused in detention or on provisional release were awaiting trial. The Appeals Chamber had also been productive.
The Tribunal’s current productivity was very high, he continued, noting that the Trials Chamber was operating at maximum capacity, with six cases in trial or at the judgement-writing phase. The judges were committed to sustaining that level of productivity throughout the remainder of the Tribunal’s life. The ICTY had taken several additional steps to ensure that it’s mandate was carried out within the completion strategy deadlines, including by ensuring that the Trial Chambers continued to work at capacity, reducing the length of appeals and judgements in the Appeals Chambers and continuing the efforts of the Working Group on Scheduling of Cases to assist in forecasting the resources and measures needed to achieve the strategy.
He went on to note other changes, including two recent amendments to the Tribunal’s rules of procedure, respectively, on the domestic jurisdictions to which cases involving indicted persons might be transferred, and on the criteria the Trial Chamber might consider in deciding whether to refer a case to a domestic jurisdiction. That rule now provided that the Trial Chamber may order a referral only after being satisfied that the accused would receive a fair trail and the death penalty would not be carried out.
On the ability to refer cases of intermediate- and lower-rank accused to domestic jurisdictions, including the planned War Crimes Chamber in Bosnia and Herzegovina, he stressed that such referral depended on propitious conditions, many of which were out of the Tribunal’s control. The most important condition was the presence of domestic institutions willing and prepared to try cases involving allegations of serious violations of international humanitarian law in a manner that was fair, credible and in accordance with international legal norms. The Tribunals could only transfer cases if they were assured that those conditions could be met.
It was not helpful to consider transferring a case before a jurisdiction was truly capable of living up to international trials and detention, he said. A decision by the Trail Chamber to remove an indictee from the Tribunal’s docket in such circumstances would present serious human rights problems for the accused, who would then be in a state of “legal limbo”. The ICTY was committed to supporting credible and fair war crimes trials in all States of the former Yugoslavia.
He noted that on his last visit to Sarajevo, he had been informed that despite some delays, courtroom facilities would be available by January 2005. However, the prospects for detention facilities, which were essential for the transfer of accused, were less reassuring. The various options under way to ensure that they met international standards would require the support of the international community. Similarly, there were still doubts that credible war crimes trails could take place in the domestic jurisdictions of Croatia or Serbia and Montenegro. Regarding Croatia, the European Commission had recently concluded that a single standard of criminal responsibility was not yet applied equally to all those charged with war crimes. An Organization for Security and Cooperation in Europe (OSCE) mission, which had monitored several domestic trials in 2002, 2003 and early 2004, had reported significant concerns about the capacity and impartiality of parts of the Croatian judiciary. However, the level of Croatia’s cooperation with the Tribunal had improved significantly.
On the other hand, he said, the poor record of cooperation between Serbia and Montenegro and the Tribunal diminished the likelihood of referring cases to the courts of that State. The Government appeared to have taken little or no action with regard to high-ranking fugitives that the Tribunal had indicted last fall but who had remained at large for more than six months. That Government had also failed to respond to requests for explanations of its default in arresting individuals subject to Tribunal arrest warrants. Nonetheless, the Tribunal remained committed to assisting the Government of Serbia and Montenegro in laying the groundwork for fair and effective war crimes trials.
He said that, given the completion strategy deadlines, there might be a temptation overall to consider referring cases involving even high-level accused to national jurisdictions. But commitment to those deadlines must not detract from the Tribunal’s basic purposes, which were to administer justice even-handedly and to contribute to the restoration and maintenance of peace in the region. To depart from the Tribunal’s mission to try those most responsible for alleged violations of international humanitarian law risked undermining the Security Council’s decision to establish the Tribunal and damaging the cause of international justice.
A “rigid and mechanistic” pursuit of the completion strategy should be avoided, he said, as it would lead to the espousal of trials that fell short of the guarantees of international human rights. Regarding the strategy’s prognosis, it had been estimated that an additional year beyond 2008 would be needed to try all indictees still at large as of October 2003, particularly high-priority fugitives Radovan Karadzic and Ratko Mladic. While there would be capacity to hold additional trials if persons currently in custody or on provisional release decided to plead guilty or were referred to domestic jurisdictions, if any additional senior-level accused -- whether they were already-indicted fugitives or newly-indicted accused -- surrendered or were transferred to the Tribunal, it might not be possible to hold separate trials of those individuals within the 2008 deadline. Those indictments included Karadzic and Mladic.
He said the completion strategy posed a particular staffing challenge, namely, that the Tribunal must ensure that it could work at full speed to the very end of its existence. The recruitment and retention of qualified and highly-motivated staff was essential, yet very difficult, given that other institutions could offer more senior-level positions and longer-term career opportunities. That problem had been exacerbated by arrears in the payment of assessments by Member States, which had led the Secretariat to impose a recruitment freeze in May. The financial shortfall had also resulted in an unacceptable and disruptive effect on the Tribunal’s work. Unless it was able to replace staff in critical posts, it would be forced to delay, suspend or stop trials, which would be disastrous in terms of its ability to remain on track with the deadline. The international community could not expect the Tribunal, on one hand, to complete its work in an efficient and effective manner, while, on the other hand, withholding the necessary resources to ensure that it was able to function. Should the arrears and hiring freeze continue, it was only a question of time until serious slowdowns occurred, which was unacceptable.
Another point of concern, he said, was the election of permanent judges. The Tribunal’s work would be disrupted if some judges were not re-elected to the new mandate beginning on 17 November 2005, but the Council had yet to take action. The mandates of all the ad litem judges would expire on 11 June 2005 and since they could not be re-elected under the present statute, the Council would have to take some action to address that situation.
Finally, he said the failure of the States of the former Yugoslavia to arrest Radovan Karadzic, Ratko Mladic and Ante Gotovina was a major impediment to the successful completion of the ICTY’s work. Mechanical pursuit of the completion strategy must not lead to impunity for those accused. Setting a fixed date for the Tribunal’s termination had convinced some in the international community that it no longer needed their support. It certainly appeared that some in the former Yugoslavia thought that, by hiding from arrest, they could wait out the Tribunal until it went away. The international community must reaffirm its commitment to the Tribunal’s work and to the elimination of impunity for violations of international humanitarian law by removing obstacles from its path. The completion strategy would not become a reality if Member States started to back away from the Tribunal.
Statement by ICTR President
ERIK MØSE, President of the International Criminal Tribunal for Rwanda, said the ICTR was on schedule, having completed 15 judgements involving 21 accused, as promised in October 2003. Consequently, the four judges whose terms of office were extended by resolution 1482 (2003) had all left the Tribunal. Four trials involving 10 accused had been started between July and November 2003. The two so-called “government cases”, each involving four accused, had commenced in November 2003. By the end of 2004, the number of persons whose trials had been completed or were in progress would have reached 48, as projected in the completion strategy.
Regarding measures to ensure progress, he said the most important development had been the increase in the number of ad litem judges that could sit at any one time from four to nine. That had significantly increased the ICTR’s efficiency and flexibility. The number of days required to hear all witnesses in single-accused cases was steadily decreasing. The main challenge facing the Tribunal now was to ensure progress in the five multi-accused cases involving a total of 22 accused: the Butare Trial with six accused, and the Military I and II, as well as Government I and II, each involving four accused. In its planning, the Tribunal was giving priority to the steady progress of those large trials.
With several trials and only three courtrooms, he continued, the Chambers must to some extent sit in morning and afternoon shifts. Each shift was somewhat shorter than a full day in the courtroom. The Tribunal had also looked into the possibility of constructing a fourth courtroom, and one government had recently decided to fund the construction costs.
Regarding compliance with the deadlines set by resolution 1503 (2003), he said that by 2005 and 2006, the Tribunal would have completed all cases involving the 27 accused on trial in 2004. That would bring it to 48 accused who had held leadership positions in 1994. The question was then how many additional accused the Tribunal could deal with by 2008. The completion strategy had indicated an estimate of 65 to 70 persons, including 10 of the 15 detainees presently in Arusha. Of the 17 detainees at large, the Prosecutor would try to bring 13 to justice in Arusha and seek the transfer of four accused. The deadline set by resolution 1503 would be respected, provided the Tribunal had the necessary resources, he stressed. Although budgetary issues were not the responsibility of the Council, the fact that some States had not paid their contributions to the ICTR could threaten the completion strategy. The present freeze in recruitment might have serious consequences for all branches of the Tribunal.
Statement by ICTY Prosecutor
CARLA DEL PONTE, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, said that investigations under way in her Office would be completed and the last of its new indictments presented by the end of the year. The Tribunal knew exactly how many cases would have to be tried, but while her Office was committed to the deadlines and would continue to streamline its trials and appeals, there were many exigencies beyond its control, namely, the arrest of fugitives, the appearance of witnesses and the emergence of crucial evidence, which required the participation and cooperation of States.
The transfer of mid- and low-level cases to domestic jurisdictions would free court resources for senior accused leaders, she said. But efforts had yet to be invested in establishing domestic jurisdictions capable of trying war criminals. The support of the international community, including regional organizations like the OSCE, was of paramount importance in that process. For the time being, within the guidelines set by the Council, the transfer of any high-level cases was not being considered.
She said the Council should consider that victims might resent the completion strategy, chiefly because their trust in domestic courts was low. Following a resent visit to Bosnia and Herzegovina, she had received letters from victims’ associations expressing their grave concern and even disagreement with the completion strategy.
The key challenges to ensuring that the ICTY’s mandate was properly and successfully achieved were the arrest of fugitives, finances and the cooperation of States. The failure of the Republika Srpska in Bosnia and Herzegovina, and Serbia and Montenegro to arrest or obtain the surrender -- voluntary or through coercive measures -- of 20 indicted persons who remained at large was critical. Those failures prevented the Tribunal from joining cases that could be tried together and obliged it to conduct separate trials on the same crime base, which amounted to substantial losses of the Court’s time.
The Court’s strategic planning was also affected, since the Prosecutor was forced to choose between focusing on the accused already in the Tribunal’s custody, or plan for the trial of high-profile at large indictees, she said. An unintended consequence of the completion strategy was that fugitives and their networks were trying to buy time until 2008, hoping to evade justice. In that context, a statement that the ICTY would remain active as long as necessary to ensure the trial of those fugitives would serve the interest of justice.
Highlighting the Tribunals’ dire budgetary and financial situation, she said her Office had been badly hit by the deferred consideration of the 2005 budget for investigative support for trials and appeals. The cash flow crisis that had emerged this spring, resulting in a hiring freeze, had prevented the recruitment, even for replacement of essential personnel who had left their posts.
Regarding cooperation, she said that beyond the arrest of indicted criminals, States had the obligation to grant access to witnesses and documents. The Croatian authorities had been fully cooperative, but Serbia and Montenegro had become a safe haven for fugitives. The last time she had passed precise information to Serbian authorities regarding a high-level fugitive charged with the Srebrenica genocide, she had been told that, due to political circumstances, “it was not opportune to arrest him”. She had since learned that he had disappeared. In that absence of a significant number of transfers of fugitives in the weeks to come, it would have to be concluded that Serbia and Montenegro would continue to be unwilling to abide by its international obligations.
Emphasizing that international support remained crucial in securing the cooperation of the States of the former Yugoslavia, she said her only recourse in cases of a State’s failure to cooperate was to report non-compliance to the ICTY’s President, who would in turn bring it to the attention of the Council. As the international community approached the 10-year anniversary of both the Srebrenica genocide and the signing of the Dayton agreement, it was important to remember another anniversary: Radovan Karadzic and Ratko Mladic had been at large for almost 10 years. How long would it be tolerated that they make a parody of both justice and the repeated commitment of the Security Council to have them arrested?
Statement by ICTR Prosecutor
HASSAN JALLOW, Prosecutor of the International Criminal Tribunal for Rwanda, said he had reviewed the caseload and identified the cases that should be taken up or transferred to national jurisdictions. His Office had also adopted a completion strategy action plan, setting out critical measures to implement the completion strategy and the time frames for doing so. A monitoring mechanism had also been put in place and the completion strategy would continue to be kept under review.
Of the 21 detainees currently on trial in Arusha, the Prosecution expected to close 10 cases by the end of 2004, he said. It was ready to commence six others before the end of the year. Of the 17 accused remaining in detention, it was proposed to transfer at least five of them to Rwanda and to transfer the cases of at least four indicted fugitives to national jurisdictions for prosecution. It was expected that the number of accused to be tried at the Tribunal, excluding those already in detention, would be a maximum of 29.
He said the number of accused who remained to be prosecuted at Arusha between now and the end of 2008 was greater than the number of those whose cases had been concluded in the period from the Tribunal’s inception to date. Meeting that challenge required new strategies and ways had been sought to streamline processes, eliminate duplication, and improve coordination, focus and efficiency in prosecutions. All new indictments would observe certain principles, including the avoidance of excessive charges. Witness selection would be based on specific criteria aimed at expediting the trial process and projects had been started to strengthen the tools of the Evidence Unit.
It was expected that investigations on new indictments would close by the end of 2004. By the end of October 2005, it was proposed to have completed the review of the evidence and the filing and confirmation of any new indictments.
The transfer of cases was an important component of the completion strategy, he said. A draft agreement on the transfer of cases was now being prepared as a basis for negotiations with interested countries. In the case of Rwanda, a mission fielded by the Registrar had recently concluded an inspection of prison facilities in that country. A rule change enabled the ICTR to make transfer orders in respect of fugitives which could be implemented even when the fugitive was apprehended after the closure of the Tribunal. The rule change also increased the range of countries to which transfer could be effected to include any that were willing and able prosecute the accused.
He said 15 indicted fugitives still remained at large, many of them in the eastern part of the Democratic Republic of the Congo. Since October 2003 two fugitives had been arrested, an indication of the potential for international cooperation and the positive results it could bring to the international criminal justice system. The Tribunal required the collaboration of those States in which the fugitives were located, without which, the tracking programme would be at great risk.
As a consequence of the creation of a separate office of Prosecutor for the ICTR, the Office of the Prosecutor had had to develop its own Appeals Unit, he said. However, the two ad hoc tribunals continued to share a common Appeals Chamber. Of the 12 positions provided for the Appeals Unit, six had been filled. Furthermore, with the anticipated increase in the number of accused standing trial, it was imperative that the capacity of the Office of the Prosecutor be improved with regard to prosecuting staff. The Tribunal would require investigators in declining numbers up to the conclusion of appeals in 2010. The Investigations Division was already under-resourced. From 2005, it would be concentrating on non-conventional investigations. The issue of resources, particularly manpower and equipment, was crucial to successful completion of the mandate.
He said that all plans and benchmarks were premised on having in place a full complement of prosecuting staff with adequate budgetary support. In the absence of such support, the attainment of the completion strategy benchmarks would be at risk. The discharge of the Tribunal’s mandate depended to a large extent on the level of international cooperation it received. The state and level of cooperation with Rwanda continued to be satisfactory. The Tribunal would continue to rely on the international community in respect of the tracking and apprehension of suspects/accused, in the acceptance of cases for prosecution by national jurisdictions, and in the relocation and protection of witnesses. Above all, the Tribunal would continue to rely on the provision by States of the resources –- human and material –- that were necessary for the Tribunal to finish its task properly and on time.
MICHEL DUCLOS (France) said that, while the objective of the completion strategy was to ensure that the work of the ad hoc Tribunals would not go on indefinitely, it should not be interpreted as setting cut-off dates for appeals and judgments. Those responsible for the most serious crimes must be brought to justice. Therefore, the imperative of non-impunity and ad hoc jurisdictions not functioning on a permanent basis must be intertwined.
The exit strategy of resolution 1503 could only be successful if the international community was fully mobilized and worked to take specific steps to achieve that goal, he said. Member States must honour their financial contributions to the Tribunals, without which the completion strategy could not be fulfilled. All States must actively cooperate in good faith with the Tribunal, particularly the States of the former Yugoslavia and Rwanda. Gaps in cooperation, particularly with regard to Serbia and Montenegro must come to an end, and it was up to the Council to ensure that cooperation.
He asked the representatives of the Tribunal how and when they thought it would be possible to relocate some cases to national jurisdictions and sought clarification regarding inquiries about former members of the Rwanda Patriotic Army.
HERALDO MUÑOZ (Chile) said the ICTY was sending a strong message of accountability to the former Yugoslavia. The completion strategy required that the Special Chamber in Bosnia and Herzegovina be established as soon as possible. It was a cause for alarm that new accused persons could probably not be tried within the deadline. A key element was cooperation on the part of the States of the former Yugoslavia.
Welcoming the comprehensive presentation by the President of the ICTR, he noted the intention of the Prosecutor to focus on individuals who bore maximum responsibility for crimes committed in 1994. Chile reiterated its support for the completion strategy, including the conclusion of their entire workload by 2010.
ADAM THOMSON (United Kingdom), welcoming the ICTY’s efforts to increase its efficiency in the past year, noted that there were still obstacles to achieving the completion strategy, particularly the serious financial shortfalls. The international community faced a choice of having a Tribunal that was stifled in its duties by a lack of resources or one that could perhaps complete its work ahead of time if it was adequately funded.
Another impediment was the transfer of cases to national-level courts and the delivery of at-large indictees to The Hague, he said. The United Kingdom was determined to continue to exert pressure on all those who might have information on fugitives or could provide access to important documents. It welcomed the sense of cooperation by the Government of Croatia, as reported today, but noted that Bosnia and Herzegovina must undertake a credible and sustained effort to track down and transfer all fugitives. Serbia and Montenegro must evince that same effort.
While welcoming the evidence of shared responsibility throughout all the ICTR’s organs toward the achievement of the completion strategy deadlines, he said all was not smooth sailing, particularly budgetary shortfalls caused by Member States’ arrears. The United Kingdom would be interested in hearing the Tribunal officials speak more about the transfer of cases to domestic courts, particularly those that might be moved to Rwanda.
ABDALLAH BAALI (Algeria) welcomed the progress that had been made but, nevertheless, recognized that the timetable deadline of a 2010 completion date for the Tribunals’ work might be in jeopardy. The financial shortfalls and gaps in staffing could seriously impede the work of both Tribunals, compromising their ability to complete the work before them. The upcoming expiration of the judges’ terms was also a concern and a solution must be found as quickly as possible.
At any rate, it was incumbent upon the Member States in arrears to meet their obligations as soon as possible. Full and complete cooperation of all States with the Tribunals was absolutely necessary, particularly concerning the location, arrest and transfer of fugitives and in securing important documents. The Council must not remain passive when it had the means to assist the Tribunals.
RONALDO MOTA SARDENBERG (Brazil) said the Council was confronted with the challenge of adapting the inherent limitations of ad hoc judicial arrangements to the principle of due process. The Tribunals must remain committed to the goals of resolution 1534 while concentrating on the most senior leaders suspected of responsibility for crimes within their jurisdiction. In the case of the ICTY, insisting on rigid deadlines might frustrate justice.
Expressing concerned over the substantial lack of cooperation with the Tribunal for the former Yugoslavia, he said that it was not acceptable that Member States disregarded their obligations under the United Nations Charter, the Tribunal statutes and the relevant Council resolutions. Brazil urged Member States directly involved in the Tribunals’ work to cooperate fully with them and assure the speedy surrender of fugitives and documents. It was essential that the Tribunal continue to have adequate resources to perform their function. Brazil had been making efforts to pay outstanding contributions to the Tribunals, he added.
GHEORGHE DUMITRU (Romania), expressing concern about factors that could jeopardize the Council’s time frames for completion, emphasized the importance of full cooperation with the Tribunals by all relevant countries. Increased cooperation would also have a positive impact on the relations of some countries with international organizations. The focus on leaders responsible for the most serious crimes was also essential for successfully implementing the completion strategy. He asked how amending the ICTY’s Rules of Procedures would further that goal.
Aware of the need to meet all requirements relating to fair trial, he welcomed efforts by the Tribunal and Bosnia and Herzegovina to establish a Special Chamber. While guilty pleas would enhance the completion strategy, such efforts should not compromise the principles of due process and the rights of both accused and victims.
GUNTER PLEUGER (Germany) said that the achievement of the completion strategy relied on factors that lay both inside and outside the Tribunals’ responsibilities. Those outside their purview included the crucial cooperation of regional States, the provision of requisite resources, and cooperation on the location and arrest of fugitives. Germany was heartened by the improved level of cooperation with Croatia, but was concerned by the lack of cooperation on several fronts by the Government of Serbia and Montenegro.
He asked the officials from the ICTY what the Council or other third parties could do to help improve cooperation with Serbia and Montenegro, particularly in light of recent elections there. He also asked about the ICTR’s relationship with the Government of the Democratic Republic of the Congo, particularly with regard to assistance in locating fugitives.
CHARLES ROSTOW (United States) first expressed his Government’s sorrow following the crash of a United Nations Mission in Sierra Leone (UNAMSIL) civil helicopter earlier this morning. The sympathies of the United States were with the friends and families of those killed.
He went on to express support for the goals and aims of both Tribunals as they went into the final phase of their work. The United States recognized at the same time the difficulty of ensuring the requisite levels of regional cooperation and building up local capacities.
He said that implementation of the completion strategy depended on two things: Member States must fulfil their obligations to do everything in their power to arrest fugitives and other criminals, while regional countries stepped up to their responsibilities to bring such criminals to justice; and all Member States must fulfil their financial obligations to support the Tribunals.
SERGEY N. KAREV (Russian Federation) noted that the information provided showed that both Tribunals intended to complete their work within the time frames requested by the Council. However, fulfilling the completion strategy did not mean that those guilty of crimes would be able to evade justice. Completing the task required the implementation of measures to transfer lower-ranking cases to competent local jurisdictions which must comply with international judicial and human rights standards.
Sharing the concerns of the Tribunal Presidents with regard to ensuring the availability of qualified staff, he noted that the President of ICTY had mentioned the expiration of mandates for certain judges by the end of November. The main issue in that regard was not to make a decision that would violate generally accepted norms. He also asked the ICTR Prosecutor about pardons, sentences and a mechanism to review verdicts at the end of the Tribunal’s work.
The Council President then suspended the meeting.
When the meeting resumed, Council President LAURO L. BAJA, JR. (Philippines), on behalf of the Council, expressed profound sympathy and condolences to the bereaved families and governments of those killed in the helicopter crash in Sierra Leone. The craft had been carrying more than 20 United Nations and non-United Nations personnel. “They gave their lives in the cause of peace while serving with the United Nations Mission in Sierra Leone. The international community is deeply saddened by this tragic loss”, he said.
Continuing the meeting, JEAN-FRANCIS RÉGIS ZINSOU (Benin) said the Tribunals were making an important contribution to combating impunity and their efforts were the best way to prevent a repetition. Regarding concerns about maintaining qualified staff, the Council should make an urgent appeal to Member States to show their commitment to combating impunity by making the necessary financial resources available.
The quest for speed should not compromise equitable international justice, he said. Also, the mandate of the judges should be reconciled with the length of the trials. Benin supported the possibility of transferring cases to other countries, where the Tribunals should be highly aware of the cultural environment. Lasting peace would depend to a certain extent on the flexibility with which the Tribunals would carry out their mission.
GUAN JIAN (China) said that measures to allow suspects to turn themselves in and plead guilty would expedite the Tribunals’ work. Also, the transfer of cases to domestic courts should take place as soon as possible. The two Tribunals and interested countries should provide those that had agreed to take over cases with legal and technical support. After the two Tribunals had confirmed the existence of the right circumstances, the cases of lower- and medium-rank accused should be handled by local courts. There were technical issues to be dealt with, but appropriate measures should be taken to enable judges to concentrate on completing the trials.
JULIO HELDER DE MOURA LUCAS (Angola) said that Angola supported the Tribunals’ aim to ensure national reconciliation and the restoration of peace and security in the Balkans and in the Great Lakes region. The time frame set for the completion of the Tribunals’ work seemed difficult to achieve unless further measures were taken. All regional States must cooperate with the Tribunals, particularly on the transfer of indicted criminals and access to documents.
He said that, while Angola had been encouraged by the work achieved by the ICTR, if the completion strategy was to achieve its purpose, the international community must ensure that the Tribunal was fully staffed and financed. Angola believed that the international community would continue to help the people of Rwanda to overcome the bitter history of genocide.
MASOOD KHALID (Pakistan) expressed the hope that efforts to streamline the work of the two Tribunals would help them fulfil their completion strategies. Heartened to hear that the work of the ICTR was on schedule, he asked the President of that Tribunal what plans were under way to locate and transfer the indicted fugitives. Would the prosecution of outstanding cases push the body’s work past the strategy’s deadline?
INIGO DE PALACIO (Spain) said that the reports today confirmed that much remained to be done as the Tribunals headed towards the completion of their work. It was disturbing that the courts were still facing difficulties in trying to transfer certain cases, interview witnesses and examine documents. It would be interesting to know if that situation had arisen as a result of limits of a material nature or lack of political will on the part of regional States.
Spain was also very concerned about the precarious financial straits of both Tribunals and was launching an appeal so that their important work would not be further disrupted, he said. The Council must take a firm stance on such matters and, specifically, despite positive signs following recent elections in Serbia and Montenegro, it should not lower its guard in urging authorities to cooperate with the ICTY. He asked if there had been any significant changes in the negotiation agreement strategies on compliance with the Tribunal’s decisions since the officials had last briefed the Council.
Mr. BAJA (Philippines), speaking in his national capacity, recognized the challenges facing the Tribunals in completing their tasks and expressed appreciation for measures to fulfil the completion strategy. One strategy to streamline proceedings was to turn over as many cases as possible to local courts for trials and appeals.
Noting that the Tribunals were now operating at maximum capacity, he said the lifting of the general hiring freeze under certain circumstances should be considered after consultations with the Council. To encourage retention of qualified staff, the Philippines supported a change in the classification of Tribunal posts so that staff could apply for other positions within the United Nations.
MIRZA KUSLJUGIĆ (Bosnia and Herzegovina) said that in 2003 and 2004, cooperation with the ICTY had been his Government’s top priority. All the required legislation was now in place, the Criminal Code had been amended to include a provision regarding war crimes, and the Special Chamber of the State Court would be operational soon, pending the availability of funds donated by the international community. The newly established State Information and Protection Agency (SIPA) would be fully equipped and trained to apprehend war crime indictees at large and to protect witnesses.
According to last year’s report of the State Prosecutor’s Office, he said, 9,641 persons in Bosnia and Herzegovina had been reported as potential war crimes suspects, of whom 7,120 were in the Federation of Bosnia and Herzegovina and 2,521 in the Republika Srpska. Some 4,596 cases had been sent to The Hague for further assessment. In total, 350 persons had been accused of war crimes, of whom, 127 persons, all from the Federation of Bosnia and Herzegovina, had been tried and sentenced.
There were countless examples of judicial assistance extended by courts in the Federation to the Tribunal, he said. Several attempts to arrest indictees had been made in the recent past, yet they had all been deemed insufficient, which had hindered the country from regaining access to the Partnership for Peace and to the European Union. “Hence, we remain the hostages of Radovan Karadzic and the like, who see our difficulties as their strength and our failures as their victories”, he added.
The story of the ICTY was not only one of indictments, arrests, sentences and appeals, he said, noting that the real drama unfolded in the heads and souls of ordinary people. It would be unfair towards them if possibly the greatest joint achievement of the Tribunal and local elected officials was not mentioned. The recent report by the Special Commission of the Government of the Republika Srpska indicated that a turnaround was beginning in the collective conscience of the peoples of Bosnia and Herzegovina: from total denial to acceptance of responsibility.
MARTIN NGOGA, Deputy Prosecutor-General of Rwanda, said the appointment of a separate Prosecutor for the ICTR had resulted in a better organized and more focused Office. There had also been a dramatic improvement and broadening of communication between that Office and the Rwandan Government. However, when the Office of the Prosecutor had first presented its completion strategy, as many as 300 cases of suspects considered to be “big fish” were targeted for prosecution, a figure that had fallen and might now be as low as 25. The Council must ensure that the suspects who were no longer pursued by the Tribunal did not evade justice altogether. The Tribunal’s completion strategy was, therefore, not an exit strategy for the international community. Rwanda would continue to work bilaterally with countries where suspects currently resided in order to have them transferred to Rwanda.
Rwanda looked forward to the transfer of cases from the Tribunal, he said. That would contribute significantly to the reconciliation process by giving a sense that justice was being done. The Government was prepared to waive the death penalty with respect to cases transferred from the Tribunal and would welcome support for its own judicial institutions, which had been decimated by the genocide.
He said his country would like convicts to begin serving their sentences in the country where the crimes were committed and called upon the ICTR to ensure that countries compromised by the events of 1994 were not given the opportunity to supervise enforcement of sentences. Previous requests in that regard had not been taken seriously on the grounds that detention facilities in Rwanda did not meet international standards. The Government had recently constructed a new detention facility that met international standards.
In conclusion, he appealed to the Council and the international community to provide urgent assistance to genocide survivors, in particular women who had contracted HIV as a result of rape. While the people who had raped them or ordered their rape enjoyed the best of care through the Tribunal, the victims had received no such care and many had since died of AIDS.
NEBOJSA KALUDJEROVIC (Serbia and Montenegro) said that the truth established in the proceedings before the ICTY was essential for the assumption of a historical position on the tragic events that had afflicted the peoples of the former Yugoslavia and for a final end to the legacy of the Milosevic regime. Cooperation with The Hague was a national, as well as an international, obligation and the establishment of truth in proceedings before the Tribunal, as well as before the national courts, would contribute to the promotion of mutual trust and reconciliation in the territory of the former Yugoslavia. Serbia and Montenegro had independently initiated a number of proceedings against perpetrators of war crimes, he said. As many as 17 persons had been convicted of war crimes and sentenced to prison terms ranging from eight years to the maximum 20 years.
Any evaluation of cooperation however, had to be based on facts, not on preconceived political perceptions, he said. The Government of Serbia and Montenegro had carefully studied the report before the Council, particularly the assessments on the country’s cooperation with the ICTY, and the criticism advanced by the Prosecutor’s Office regarding the insufficient cooperation. In that regard, cooperation with the Prosecutor’s Office had been of “somewhat lower intensity” owing to circumstances arising from the political situation in the country. All energies at the time had been focused on ensuring political stability, preserving and building institutions and continuing with reform processes. Even in the face of such difficulties, when the new National Council for Cooperation with the Tribunal had not yet been constituted, efforts had been made to sustain basic cooperation.
Now that the citizens of Serbia had strongly reaffirmed their commitment to democracy, in Sunday’s elections, he said, internal political conditions had been created for the Government to honour its obligations to the ICTY as soon as possible. Cooperation with the Tribunal, primarily with the Prosecutor’s Office, would be one of the country’s foreign policy priorities. Maintaining efforts to improve that cooperation was part of fulfilling the country’s goals of joining the Partnership for Peace and making further steps towards the European Union.
VLADIMIR DROBNJAK (Croatia) said the reports of the President and the Prosecutor of the ICTY took accurate note of the major effort his country had invested in full and unconstrained cooperation with the Tribunal. Croatia had fulfilled all its obligations to the Tribunal but one. Regarding the case of general Ante Gotovina, who still remained at large, the Government was doing everything possible to locate and arrest him.
The fulfilment of the completion strategy must remain the Council’s priority, he said, adding that the Tribunal’s work and its significance for lasting post-conflict stability in South-East Europe must be seen not only through the ICTY’s judicial work, but also against the background of its timely closure. “The past must not be forgotten, but it should not overshadow the future”, he added.
Croatia was preparing judges and prosecutors to take a number of cases from the Tribunal, he said, and was ready to take over part of its load this autumn. The judiciary had independently initiated a number of proceedings against the perpetrators of war crimes in Croatia. Recent final verdicts in some of the most serious cases confirmed the professional standards achieved by the Croatian judiciary in a difficult and politically sensitive domain.
He said the jurisdiction of the Tribunal should be amended by installing an appropriate procedure which would enable it to award compensation to wrongly convicted, prosecuted or detained persons. Regarding the enforcement of sentences, while the existing instruction, dating from 1993, envisaged the enforcement of ICTY sentences outside the territory of the former Yugoslavia, it was important to reiterate the Secretary-General’s request for a review of those instructions. The Croatian Government would ensure that provisionally released citizens of Croatia would reappear for trial in The Hague and not be a threat to victims or witnesses.
Croatia had transferred to The Hague all indicted persons within its reach, he reiterated, adding that those who were guilty must be punished regardless of their ethnic background. Nevertheless, some qualifications in several indictments were neither fully in line with recent history nor concurrent with the General Assembly resolution on the occupied territories of Croatia. Justice would be served fully only if those who had suffered the most found comfort and consolation in the recognition that everything they had gone through had not been in vain. Future generations, while reading the Tribunal’s records, must be able to draw a clear line between the aggressor and the victim in Croatia. They must be able to comprehend what had happened in those critical days of the homeland war.
Responses and Comments by Tribunal Officials
Mr. MERON said, regarding the Tribunals’ precarious financial situation, that what was at stake was not merely a technical payment of arrears, but the commitment of United Nations Member States to the principles of justice.
On the transfer of cases to domestic courts, he said there was good reason for optimism on several fronts. The Trial Chamber in Sarajevo would be ready in January 2005 and he was confident that it would comply with the panoply of international human rights and legal standards. Some 2003 OSCE reports on the domestic courts in Serbia and Montenegro had revealed that there might be obstacles to ensuring that war crimes trials took due process and international law into account.
The prospects for transferring of cases to Serbia and Montenegro had been diminished by past lack of cooperation, he said, recalling an OSCE report from 2003 that had found the courts lacking the capability to conduct fair trails. The ICTY officials were committed to working with the Government towards improving that standard.
On extending the mandate of judges working on cases that had been under way for six months or more, he said that judges who had not been re-elected but who had been trying specific cases should be allowed to see those cases through. The situation would be ameliorated somewhat by the Secretary-General’s decision to move the elections forward to November 2004. In that regard, it was also important for the Council to remember the impending expiration of the Tribunal’s ad litem judges.
He sought cooperation in deeds and actions -- not just in words -- from all regional States, particularly with Serbia and Montenegro. On what third States could do to spur cooperation between the new Government in Belgrade and the Tribunal, he urged the Council and the wider international community to impress the importance of the Court upon Belgrade.
Mr. MØSE said, with regard to the transfer of cases by the ICTR to local authorities, that one issue was the death penalty in Rwanda. The Rwandan assurance that the death penalty could be waived in cases transferred by the ICTR was noted. He agreed with Council members on the need to build the competence of the local judiciary.
He agreed with the representative of Pakistan that the Tribunal could not possibly deal with all cases, a maximum of 65 to 70 at the present stage. In order to avoid impunity, a division of labour must be found between international and national efforts. New enforcement agreements had been signed by France and Sweden, he added.
Ms. DEL PONTE noted that Serbia and Montenegro had stated its intention to resume cooperation with the ITCY, saying she awaited immediate results in that regard as the situation was urgent. She was considering transferring cases of mid-level responsibility indictees to national authorities and was now working with the Prosecutor of Serbia and Montenegro on an important case in which no indictment had been presented yet. That would be a test for Belgrade and for Croatia, she said, adding that she eagerly awaited the opening of the Special Chamber of Bosnia and Herzegovina.
Mr. JALLOW said that the ICTR would not transfer anybody for trial in domestic courts unless that person had the guarantee of a fair trial and would not suffer greater penalty upon transfer from the Tribunal’s purview. Impunity should not prevail and the Council, along with the wider United Nations, would have to look at ways to ensure that all indictees were brought to justice. Enhanced cooperation with regional States, particularly the Democratic Republic of the Congo, would also be helpful.
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