Speakers in Security Council Call for Rapid Completion of Cases before Tribunals, while Stressing Need for Mechanisms to Tackle Residual Tasks

4 June 2009
SC/9670

Speakers in Security Council Call for Rapid Completion of Cases before Tribunals, while Stressing Need for Mechanisms to Tackle Residual Tasks

4 June 2009
Security Council
SC/9670
Department of Public Information • News and Media Division • New York

Security Council

6134th Meeting (AM)


speakers in Security Council call for rapid completion of cases before tribunals,


while stressing need for mechanisms to tackle residual tasks


Members Hear Briefings by Top Judicial Officials

Of International Courts Pursuing Accountability in Former Yugoslavia, Rwanda


Speakers in the Security Council today called on the International Tribunals for the former Yugoslavia and Rwanda to continue to expedite the completion of all cases still on their dockets, while stressing the need for optimal mechanisms to take care of all residual tasks as their completion deadlines loomed.


As the Council heard several briefings by officials of the Tribunals, Thomas Mayr-Harting of Austria, Chairman of the Council’s informal working group on the International Tribunals, said there was agreement that the most senior accused must be tried by the Tribunals before they completed their work.  Residual mechanisms must be created to try fugitives and contempt cases, refer cases to national jurisdictions, supervise sentence enforcement, maintain archives and other purposes.


Patrick Robinson, President of the International Criminal Tribunal for the Former Yugoslavia, estimated that all but three trials before that institution would conclude in 2010, two more in early 2011 and the final one, that of Radovan Karadžić, in early 2012.  One serious hurdle remained ‑‑ the continued flight from justice of Ratko Mladić and Goran Hadžić.  “If these two men are not brought to justice, it will leave a stain on the Security Council’s historic contribution to peacebuilding in the former Yugoslavia.”


He said that a request for the extension of the mandates of the permanent Trial and Appeals Judges, as well as those of the Tribunal’s ad litem judges was now before the Security Council, explaining that the Tribunal’s heavy appellate workload was due in part to a failure to transfer certain cases to national jurisdictions and a lack of capacity or readiness to try such cases in European countries, as had been requested.  He urged countries with highly developed judicial systems to make a greater effort to accept such transfers.


Other obstacles to completion, he noted, included problems with translation, contempt proceedings, witnesses kept away from trial through intimidation and staff losses.  As for the residual mechanism, he requested the Council to ensure that the decisions it made guaranteed the long-term integrity of the Tribunal’s work, including its efforts to strengthen national judicial systems in the territory of the former Yugoslavia.


Serge Brammertz, Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, stressed that the cooperation of Member States remained critical to his work.  Serbia had made progress at the operational level in its cooperation in efforts aimed at arresting Mssrs. Mladić and Hadžić, and it was to be hoped that the political authorities would provide the necessary support for that endeavour.  However, the Office of the Prosecutor remained concerned about recent negative statements by senior Serbian Government officials with regard to the Tribunal.  He said the Prosecution was also trying to get Croatia to provide a number of key military documents relating to the 1995 Operation Storm.  As for Bosnia and Herzegovina, there were no specific outstanding trial issues with that country, but its judicial system continued to face challenges.


Dennis Byron, President of the International Criminal Tribunal for Rwanda, said that, despite many obstacles, the Tribunal continued its efforts to meet the projected conclusion of the evidence phase in all trials by the end of 2009.  However, the delayed start of some trials required contingency planning for a possible spill-over into the first months of 2010.  He requested the Council to approve mandate extensions for all but two currently serving Trial Judges until 31 December 2010.


He said the Tribunal had decided to try the remaining new cases with currently serving judges rather than request the appointment of additional ad litem judges.  That course of action had without doubt placed an additional burden on the currently serving judges.  Moreover, the inequality between permanent and ad litem judges with respect to certain entitlements remained a major source of concern, and the Tribunal faced a constantly increasing turnover of staff.


Despite much achievement, important tasks remained, he said, noting that, 15 years after the genocide in Rwanda, 13 fugitives remained at large, 4 of whom were earmarked for trial as high-level accused persons.  Letting those indicted for the most serious crimes escape trial was not an acceptable option.


Hassan Bubacar Jallow, Prosecutor of the International Criminal Tribunal for Rwanda, stressed that the arrest of Felicien Kabuga continued to be a top priority.  For several years, the Tribunal had been engaged in securing Kenya’s cooperation in his arrest and transfer, and in the freezing of his assets and properties in that country.  Unfortunately, those efforts remained fruitless.  He appealed to the Council to call on Kenya, as well as the Democratic Republic of the Congo, to cooperate fully in the apprehension of fugitives.


Following the briefings, most members of the Security Council expressed appreciation for the Tribunals’ efforts to continue to reform their completion strategies and to maximize the use of resources in order to finish as quickly as possible without sacrificing the highest standards of justice.


However, the representative of the Russian Federation described the progress made by the International Criminal Tribunal for the Former Yugoslavia as much too slow, adding that the delays violated human rights norms, particularly when the Tribunal had the option of transferring cases to national jurisdictions.


With regard to residual mechanisms for the Tribunals, most Council members called for the tabling of a resolution on arrangements for such mechanisms as soon as possible, emphasizing also that the Tribunals’ archives were crucial for the future of the rule of law around the world.


Ivo Sanader, Prime Minister of Croatia, as well as the representatives of Serbia, Bosnia and Herzegovina, Rwanda and Kenya reaffirmed their countries’ full commitment to the Tribunals, and spoke of their countries’ specific concerns in relation to cooperation with the Tribunals.


At the outset of today’s meeting, Ahmet Davutoglu, Minister for Foreign Affairs of Turkey, marked his country’s assumption of the Council Presidency for the month of June.


Also addressing the Council were the representatives of Viet Nam, China, United Kingdom, Uganda, France, Libya, Burkina Faso, Mexico, Japan, United States and Costa Rica.


The meeting began at 10:10 a.m. and ended at 1:20 p.m.


Background


Members had before them a letter to the President of the Security Council (document S/2009/0252) transmitting the assessment and report of the President of the International Tribunal for the Former Yugoslavia (formally known as the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991) on implementation of the Tribunal’s completion strategy.


The report states that, out of the 161 accused indicted by the Tribunal, only six remain in the pre-trial stage and only two, Ratko Mladić and Goran Hadžić, remain at large.  Twenty-one accused are presently on trial and another 13 have appeals pending.  Trials of the two recently arrested accused will be completed in early 2012.  Taking into account an anticipated 17 new appeals from the Rwanda Tribunal, the completion of all appeals is not now expected prior to 2013.


To meet the target date of mid-2013, a significant redeployment of Trial Chamber resources to the Appeals Chamber during 2010 and 2011 will be needed, while the number of judges overall will decrease in that period, the report says.  It is anticipated that all ad litem (ad hoc) judges will have departed the Tribunal in 2010 and 2011.  As their terms of office end on 31 December 2009 and those of the Appeal Judges on 31 December 2010, the Council will be requested to remedy that situation.


According to the report, the Tribunal has transferred all low- and mid-level accused to regional authorities, in accordance with Council resolution 1503 (2003), and the Prosecutor, with the assistance of the Organization for Security and Cooperation in Europe (OSCE) continues to monitor progress in those cases.  The Tribunal should not close its doors until fugitives Mladić and Hadžić are arrested and tried, and the Council is urged to make clear that their trial does not hinge upon the Tribunal’s proposed completion strategy dates.


As for the Tribunal’s legacy and its residual mechanism, the report notes that staffing estimates have been based on the level of judicial activity expected.  The Council should ensure that the integrity of the Tribunal’s work is not compromised by the transfer of functions to bodies lacking expertise and funds to deal properly with them.  Furthermore, the Council should retain the most qualified staff until the end of the completion strategy.


The report concludes by stating that the International Criminal Tribunal for the Former Yugoslavia will be remembered as the first and most successful international criminal institution so far.  In order to ensure that its achievements endure, the Security Council should maintain its vital support for it, take all possible measures to effect the immediate arrest of the last two fugitives, ensure the proper handling of the necessary residual function by an appropriate body, and provide assistance to enable judicial institutions in the former Yugoslavia to continue the work started by the Tribunal and the Security Council.


Also before the Council was a letter (document S/2009/247) transmitting to the Council President the report on the completion strategy of the International Criminal Tribunal for Rwanda (formally, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994).


The report provides an update on the status of the strategy through 4 May 2009, noting that the Tribunal remains strongly committed to completing all first-instance trials (pre-appeals proceedings) within its mandate, which has been extended until the end of this year.  However, those projections are largely based on retention of current staff and the provision of additional staff required to finalize all pending tasks.  Additionally, in one case ‑‑ Karemera et al ‑‑ a spill-over of the evidence phase into 2010 is likely, depending on the outcome of the Appeals Chamber decision on severing Matthieu Ngirumpatse from the case and the state of his health.


Apart from that case, the report continues, trial activities in 2010 should be limited to contingency planning for possible delays of trials scheduled for the last months of 2009, for reactions to orders from the Appeals Chambers and possible hearings for the purpose of preserving evidence.  Aside from that, the Trials Chambers will focus on drafting judgements in all remaining cases.  The Tribunal is facing an unprecedented workload as it prepares for closure, with 10 new cases ‑‑ the maximum number anticipated ‑‑ all becoming reality and all requests for referral to Rwanda denied.  In addition, the delayed start of several new cases in the first months of 2009 is putting particular strain on judges and other staff.  To face those challenges successfully, the Tribunal counts on the continued support of Member States.


Briefings


PATRICK ROBINSON, President of the International Tribunal for the Former Yugoslavia, said that since his last presentation to the Council the Tribunal had continued to focus on completing its work as expeditiously as possible.  Three appeal judgements had been rendered, including in some of the most complex cases, and seven trials were being heard simultaneously in the three courtrooms.  Of the remaining caseload, the trial of two accused, Jovica Stanišić and Franko Simatović, had just begun and that of Radovan Karadžić would commence in late August.  Both Zdravko Tolimir and the final case of Mico Stanišić and Stojan Jupljanin would commence in September.


Current estimates suggested that all but three trials would conclude in 2010, two more in early 2011 and the final one, that of Karadžić, in early 2012, he said.  However, one serious hurdle remained ‑‑ the continued flight from justice of Mladić and Hadžić.  “If these two men are not brought to justice, it will leave a stain on the Security Council’s historic contribution to peacebuilding in the former Yugoslavia,” he said, adding that their immediate arrest would obviate the need for a residual trial function for the Tribunal.  If Mr. Mladić were arrested now, his case could be joined with that of Mr. Karadžić.


Turning to appeals, he estimated that, absent a redeployment of eight Trial Judges to the Appeals Chamber upon completion of their trial work, the Tribunal’s Appeals Chamber, shared with the Rwanda Tribunal, would be occupied with appellate work into 2015.  However, with the redeployment of four judges from each Tribunal, most appellate work would be completed by the end of 2012, with four cases spilling over into the first half of 2013.


A request for the extension of the mandates of the permanent Trial and Appeals Judges, as well as those of the Tribunal’s ad litem judges was now before the Security Council, he said.  The heavy appellate work load was due in part to a failure to transfer certain cases to national jurisdictions and a lack of capacity or readiness to try such cases in European countries, as had been requested.  He urged countries with highly developed judicial systems to make a greater effort to accept such transfers.  One major case of the Yugoslavia Tribunal could also be transferred to a developed country, thereby saving one trial bench 14 months of court sittings, besides the time needed to consider an appeal.


Also delaying completion were problems with translation, contempt proceedings, witnesses who had been kept away from trial through intimidation and staff loss, he continued, noting that, 82 staff members had been lost in the past three months.  Concrete measures were needed to retain staff.  As for the residual mechanism, the Council was requested to ensure that the decisions it made guaranteed the long-term integrity of the Tribunal’s work.  The Tribunal had taken many concrete steps to strengthen national judicial systems in the former Yugoslavia.  Together with partner organizations, including other United Nations bodies, the Tribunal was planning further capacity-building activities, in consultation with colleagues in the former Yugoslavia.


DENNIS BYRON, President of the International Criminal Tribunal for Rwanda, said that since he had last reported to the Council the Tribunal had rendered three judgements involving six accused.  Between now and year’s end, judgements were expected in six other single-accused cases.  During the first months of 2009, the evidence phase in two of the largest multi-accused trials, Butare and Military II, had been completed.  Those two and Bizimungu were now in the judgement drafting phase and involved some 14 accused.  In the fifth multi-accused case, the Karemera trial, the Tribunal was awaiting the decision of the Appeals Chamber with respect to its order to sever one of the defendants whose continued illness had delayed the proceedings.


Recalling that he had projected a maximum of 10 new cases for 2009 in his last briefing to the Council, he said that had become reality, with four of those cases commencing already and the evidence phases in one of them already complete.  While the Tribunal continued to try to improve trial management, the commencement of several new trials had had to be adjourned for several reasons, including disclosure issues, the unanticipated resignation of counsel in three cases shortly before the scheduled start of trial, the death of a lead counsel and the recusal of the Presiding Judge.


Despite those delays, the Tribunal continued its efforts to meet the projections to conclude the evidence phase by year’s end, he said.  However, the delayed start of some trials required contingency planning for a possible spill-over into the first months of 2010.  Those delays could also affect the schedule for the judgement drafting process, in new and ongoing cases, as the same judges would be in trial and in deliberation for judgements.  With a caveat for the Karemera trial, however, the Tribunal aimed to deliver judgements in all cases during 2010.  The Council was requested to approve mandate extensions for all but two currently serving Trial Judges until 31 December 2010.


Three new ad litem judges had joined the Tribunal in January and were part of the bench in several new trials, he said.  Efforts to recruit a fourth judge from the roster had not been successful, and the roster had been depleted.  However, as evidence of the Tribunal’s commitment to downsizing wherever possible, and to prevent further delays, it had decided to try the remaining new cases with currently serving judges rather than request the appointment of additional ad litem judges.  At the same time, that decision had without doubt placed an additional burden on the currently serving judges, all of whom were sitting in at least two cases, and often in three, at the same time.


The inequality between permanent and ad litem judges concerning certain entitlements remained a major source of concern, he said, pointing out that the latter were now nearly identical in authority to the former.  They were on equal terms with regard to responsibility and caseload.  It was crucial to address that inequality not only to ensure motivation and commitment, but also as a matter of sheer equity.  The Tribunal faced a constantly increasing turnover of staff, exacerbated by insecurity over the short-term contracts currently on offer.  Loss of experience translated into loss of institutional memory that was not easily replaced by engaging new staff.  Thus the need to ensure the retention of experienced staff as long as their services were needed.


Despite much achievement, important tasks remained, he said, noting that, 15 years after the genocide, 13 fugitives remained at large, four of them earmarked for trial as high-level accused.  “For an international community committed to the fight against impunity, letting those indicted for the most serious crimes escape trial is not an acceptable option,” he stressed.  The cooperation and assistance of Member States was a cornerstone for successfully completing the Tribunal’s mandate in many aspects.  Two weeks ago, he had signed decisions for the transfer of a further nine convicts to a Member State for the enforcement of their sentences.  The international community’s support was also urgently needed for the relocation of two acquitted persons in Arusha.


Noting that the Tribunal was preparing budget proposals for the 2010-2011 biennium, he said its remaining workload was enormous and its ability successfully to complete it was very much dependent on adequate financial and human resources.  While the Tribunal continued to work at full speed, preparations had been made for the period after it closed.  Its report to the Council on the residual mechanism and archives would provide a “very solid and comprehensive” basis for the difficult decisions that the Council would have to make on those matters.


He said he trusted that the joint goal of effectively avoiding impunity for genocide, war crimes and crimes against humanity committed in 1994 would be the overarching principle guiding the Council’s decisions.  “We must and we will continue fighting against the culture of impunity and for accountability and justice.  The goal of successful reconciliation and enduring peace in the Great Lakes region will only be achieved if all those concerned can trust the power of this message.”


SERGE BRAMMERTZ, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, said 2009 would be the last year of full trial activity before downsizing began in 2010.  There had been much progress in the past six months, with the Prosecution having completed its final arguments in the Lukić and Lukić case.  There were presently six cases on trial involving 19 accused.  One was a complex prosecution of seven persons charged with crimes committed in Srebrenica, which was now in its final stages, with final arguments scheduled for the end of August.  The other cases on trial, Djordjević and Perišić, were well advanced, while Prlić et al and Govina et al were now in the defence phase.  Delays in the trial schedule included, most notably, the adjournment of the Šešelj case as a result of difficulties in securing evidence from the remaining witnesses.


He went on to say that significant progress had been made in the last four cases currently in the pre-trial stage, with the Karadžić prosecution ready to start trial shortly and the Stanišić and Simatović case due to recommence in the coming weeks following a lengthy adjournment due to Mr. Stanišić’s health problems.  The Prosecution was ready to begin the Simatović and Stojan Zupljanin trials, expected to take place in September, when the Tolimir case should begin as well.  The Prosecution of appeals remained constant and was expected to increase significantly in future months.  By the end of 2009, the Appeals Division would have a continuing inventory of 24 cases.


The cooperation of Member States ‑‑ particularly Bosnia and Herzegovina, Croatia and Serbia ‑‑ remained critical to the Prosecution’s work, he said, citing areas such as the provision of documents, access to archives, assurances that witnesses could testify and assistance in locating and arresting fugitives.  Serbia had made progress in its cooperation and the arrest of Mladić and Hadžić remained the central issue in that context.  Hopefully the political authorities in that country would provide all necessary support to the professional work done at the operational level in that regard.  However, the Prosecution was concerned about recent negative statements by senior Government officials regarding the Tribunal’s judicial decisions.


With regard to Croatia, he said the remaining outstanding issue was the Prosecution’s efforts to get the country to provide a number of key military documents relating to the 1995 Operation Storm, which had been unsuccessful despite long-term attempts.  It was crucial that Croatia continued to focus its efforts on locating and providing those documents.  As for Bosnia and Herzegovina, there were no specific outstanding trial issues, but the country’s judicial system continued to face challenges.


Turning to the transfer of war crimes cases to national jurisdictions, he said the last four cases, involving 11 suspects, would be moved to Bosnia and Herzegovina before the end of the year.  Cooperation between prosecution services was improving, but national judiciaries continued to face significant legal obstacles and challenges with regard to the prosecution of war crimes cases, including prohibitions against extradition and the transfer of cases.  Those issues must be addressed through the establishment of the necessary legal frameworks.


HASSAN BUBACAR JALLOW, Prosecutor of the International Criminal Tribunal for Rwanda, said that since his last report to the Council in December 2008, there had been intense activity to implement the completion strategy.  In the past six months, the Prosecution had commenced the trial of four new cases.  Proceedings in the Nshogoza trial had just been completed and others continued progressively.  Ongoing trials in the multi-accused case of Karemera et al and the single-accused case of Ephrem Setoko were moving towards finalization.  Six detainees were currently awaiting the scheduling of their cases for trial.  In the same period, seven new appeals had been filed.  Proceedings had been concluded in the Renzaho, Kalimanzira, Nsengimana and Nshogoza cases and delivery of judgements by the Trial Chambers was expected before 31 December.  The Prosecution was preparing for 11 appeal hearings.


Despite the intense activity of the Prosecution’s Tracking Team, no arrests of the 13 outstanding fugitives had been secured in the past six months, he said.  The Prosecution’s focus in the next six months would be on concluding ongoing trials, commencing those of the remaining detainees, intensifying tracking efforts for the arrest and transfer of fugitives, renewing efforts for the referral of some cases to Rwanda and other competent national jurisdictions, and exploring new measures to preserve the evidence in the trials of at least four fugitives earmarked for trial in Arusha when they were eventually arrested.


The arrest of Felicien Kabuga continued to be a top priority, he emphasized, noting that incontrovertible evidence collected by the Joint Task Force ‑‑ comprising the Kenya Police and Tribunal investigators ‑‑ indicated that upon entry into Kenya in 1994 he had been granted a residence permit, authorized to carry out business in his own name, as well as with others, and had opened various bank accounts in his own name in local banks.  The Joint Task Force had documented reported sightings of Mr. Kabuga over a long period, and for several years the Tribunal had been engaged in securing Kenya’s cooperation to arrest and transfer Mr. Kabuga for trial, and for the freezing of his assets and properties in that country.  That had involved several missions to Kenya by Tribunal officials, mostly recently by the Prosecutor in March.


So far, only one property, the Kabuga family residence in Nairobi known as the “Spanish villa”, had been the subject of any seizure by the Kenyan authorities, he continued.  On 8 January 2008, the country’s Director of Immigration had written to the Joint Task Force, informing it that Mr. Kabuga had left Kenya.  All efforts to obtain the particulars of his alleged departure from the authorities, including the Prosecutor’s March visit, and to gain access to Government records relating to his assets and activities, had been fruitless, as the Kenyan authorities had failed to comply with the Tribunal’s requests.


He said consultations with the Democratic Republic of the Congo were continuing in the effort to find ways to secure the arrest and transfer of a large number of fugitives in that country.  The Tribunal continued to appeal to the Council to call upon Kenya, the Democratic Republic of the Congo and all States for their cooperation in that regard.  Its legacy depended on the international community’s ability to arrest and provide a fair trial to all those indicted for grave atrocities against other human beings.  Closing the Tribunal without arresting or transferring fugitives created the real danger of maintaining an impunity gap that would be difficult to fill in the absence of a fully operational tribunal and adequate tracking capacity.  It was urgent that Member States fully cooperate with the Tribunal and that the international community provide additional support, and pressure, in the case of the Democratic Republic of the Congo, to ensure the immediate capture and transfer of those fugitives to Arusha for trial.


Following the Appeals Chamber decisions rejecting the referral of cases to Rwanda, that country’s Government was in the process of enacting additional legislation to meet the Appeals Chamber’s remaining concerns about the protection of witnesses and the recording of testimony by witnesses who may be reluctant to travel to Rwanda.  Once the law entered into force and the capacity for witness protection was established, the Office of the Prosecutor would consider making further applications for referrals to Rwanda.


Urging the Council to call upon Member States to redouble efforts to support building the capacity of the Rwandan legal system, he said the country had the onerous burden of dealing not only with cases transferred from the Rwanda Tribunal, but from other national jurisdictions as well, in addition to the many other domestic cases of genocide, war crimes and crimes against humanity committed in 1994.  Rwanda had already accomplished much in that area, such as abolishing the death penalty, incorporating additional fair-trial guarantees into national law, facilitating upgrades and training of personnel.  Those positive efforts should be encouraged by support for further capacity-building of the legal sector.


He said that successful completion of the Tribunal’s mandate would depend to a large extent on its ability to transfer the cases of nine fugitives and some detained indictees for trial within Rwanda and other national jurisdictions sharing concurrent jurisdiction with the Tribunal.  The fugitives’ continued and prolonged evasion of justice also posed challenges to the proper administration of justice, even when they were finally arrested and brought to trial.  However, there were no times limits for the prosecution of such offences.  The indictees would be prosecuted at any time after they were arrested, as long as evidence was available.


The public interest in the proper administration of justice required that a fair and proper trial not be subverted by the success of the fugitives in evading justice long enough for the evidence possibly to disappear, he stressed.  Accordingly, the Office of the Prosecutor had proposed amendments to the Rwanda Tribunal rules that would enable it to preserve the testimony of witnesses so as to keep it available in any subsequent trials if the witnesses were not available at that time.  The rule change, when adopted, would facilitate special depositions from witnesses, at least for fugitives.  Those proceedings were expected to be very limited in duration and should not have an adverse impact on the completion strategy.


Statements


IVO SANADER, Prime Minister of Croatia, reaffirmed his country’s commitment to full cooperation with the International Criminal Tribunal for the Former Yugoslavia, noting that the mass killings countrywide and the shelling of many cities and towns were still remembered.  It was regrettable that some perpetrators of those crimes remained at large, and that the death of former Serbian president Slobodan Milošević had prevented a full application of justice in his case.  Having submitted a request for confirmation of its full cooperation, Croatia had been working to provide all needed documents and information.


THOMAS MAYR-HARTING (Austria), chairman of the security council informal working group on the international tribunals, stressed the importance of trying referred cases in a fair manner and expressed hope that Rwanda’s efforts to strengthen its judicial system would allow the Rwanda Tribunal to reapply for the transfer of cases to that country.  There was agreement among members of the working group that the most senior accused must be tried by the Tribunals before they completed their work.


Residual mechanisms must be created for the trial of fugitives, contempt cases, referrals to national jurisdictions, supervision of sentence enforcement, maintenance of archives and other purposes, he said.  Many questions remained about the residual mechanisms, including whether there should be two mechanisms or one with two branches, where their seat would be and where their archiving would be done.  The working group was consulting with Tribunal officials on those questions and on the requests they had described in their presentations.


LE LUONG MINH (Viet Nam), while acknowledging the unexpected and uncontrollable factors that had caused trial delays, expressed concern about continued lateness in transferring the accused to the Tribunals’ custody, the denial of all requests for referrals to Rwanda, and the difficulties faced by both Tribunals in retaining highly qualified staff.  Resolution 1534 (2004) expressed the Council’s determination to review implementation of the Tribunals’ completion strategies and to ensure that the time frames set out and endorsed by resolution 1503 (2003) were met.


Expressing support for all efforts to strengthen competent national judicial systems in order to facilitate the transfer of cases involving intermediate and lower-rank indictees, including fugitives, he noted that, in the past 18 months, the informal working group had been holding intensive discussions on a possible residual mechanism to replace the Tribunals in their post-completion period.  Viet Nam supported those efforts.  The Tribunals must receive the necessary guidance and support, including sufficient resources to complete their mandates and address legacy issues.


LIU ZHENMIN ( China) expressed hope that the Tribunals would be more proactive, build on past work and adopt an innovative approach towards improving efficiency.  The transfer of cases and fugitives to national jurisdictions was an important step for implementing the completion strategies, and the Prosecutor for the Rwanda Tribunal had made very concrete suggestions in that regard.  China hoped both Tribunals would intensify activities to transfer as many cases and fugitives as possible to national jurisdictions.


Last December, the Council had acknowledged that the proposed ad hoc residual mechanism should be small and sufficient, he recalled, voicing support for a feasible and economical plan.  Some of the Tribunals’ proposals to the working group were constructive and pointed to new thinking.  The Secretary-General would submit a report, as requested by the Council, on administrative and budgetary issues in connection with the residual mechanism.  That would facilitate the activities of the working group.  The completion strategy, as endorsed by the Council should be pursued at all stages.  Despite progress in the past two years, the remaining tasks were enormous.


PHILIP PARHAM ( United Kingdom) acknowledged the obstacles hampering on-time completion, but urged the Tribunals to do everything possible to expedite their work by maximizing available time and space.  The Council should continue to support the Tribunals and grant extensions as needed.  The United Kingdom welcomed reports of improved cooperation by Serbia, recognizing that it was building a strong record in that regard.  Hopefully, Serbian officials would avoid making further remarks hostile to the Tribunal.  The United Kingdom also urged Croatia, against its background of solid cooperation, to provide all documents that were still not forthcoming, and urged Kenya expeditiously to bring fugitives from the Rwanda Tribunal to justice.


VITALY CHURKIN ( Russian Federation) said the slow progress made by the Yugoslavia Tribunal was unacceptable as the delays violated human rights norms, particularly when the Tribunal had the option of transferring cases to national jurisdictions.  Serbia’s cooperation with the Tribunal had been strong, but the Russian Federation was concerned about instances where countries had delayed the provision of documents.  Both Tribunals should ensure that their work would be completed by 2010.  The Russian Federation would work for the creation of the best residual mechanisms, and noted the progress made by the informal working group in facilitating their parameters.


PATRICK MUGOYA ( Uganda) said he attached great importance to the Tribunals’ work in fighting impunity and bringing perpetrators of crimes against humanity to justice, and welcomed their progress despite the challenges they faced.  Uganda also supported the recommendation that the Tribunals refer further cases to national jurisdictions while strengthening national capacities.  Both Tribunals had requested an extension of their mandates as several cases were yet to be completed.  Uganda supported their requests for extensions since their business remained unfinished.  There was also a need to review the terms and conditions of service for non-permanent judges.


JEAN-PIERRE LACROIX ( France) said the Council must take into account the obstacles hindering the referral of secondary-level indictees to national courts and equip the Tribunals with the means to carry out trials and appeals as soon as possible.  Regarding requests for the redeployment of judges between the Trials and Appeals Chambers, and for extension of their terms, the Tribunals must be in a position to carry out their work until the very end.  The success of their completion strategies depended on qualified, motivated staff, whose departure rate was worrisome.


Stressing that the mandate of the Tribunals would not be fully completed until those responsible for heinous crimes were tried, he called on the European Union and the former Yugoslav nations to extend their assistance to the Yugoslavia Tribunal and on all States concerned to cooperate with its Rwanda counterpart in apprehending the 13 fugitives still at large.  France called on Kenya to hand over Felicien Kabuga and for the lifting of any legal obstacles to the transfer of cases to national jurisdictions.  It would be unacceptable for the Rwanda Tribunal to close while 13 fugitives remained at large.


ABDURRAHMAN MOHAMED SHALGHAM ( Libya) said that, while it was evident that there had been tangible progress in the Tribunals’ work, circumstances beyond their control had led to an increase in their workload.  It was important that they complete their work as quickly as possible while upholding the standards of justice.  The necessary resources must be provided and mandates extended as needed, with motivating conditions provided to staff.  Transfers to local jurisdictions should be made as appropriate.  As for the preservation of archives, it was important for the future of the rule of law in the region, and it was crucial that the Council make the best decisions regarding the functions of, and resources for, the residual mechanisms.


MICHEL KAFANDO ( Burkina Faso) said that, in order to grapple with its workload, the Rwanda Tribunal should make all efforts to transfer second-tier defendants to national jurisdictions, and encouraged its officials to follow those cases very closely.  The Tribunals must focus on limiting delays in the pre-trial process without sacrificing standards.  As for ad litem judges, the Council should review their situation, given their long-term employment.  The options for archives and residual mechanisms should be submitted to the Council as soon as possible.  Two separate mechanisms, or at least two separate branches, should be created because of the differences between the two Tribunals.  The location of the archives should be considered in the context of the Tribunals’ important legacies.


CLAUDE HELLER ( Mexico) said the Council must continue to maintain a pragmatic and flexible approach to the completion strategies, noting that the Tribunals faced difficulties in maintaining a balance between carrying out their mandates, maintaining financial and budgetary efficiency, and meeting their obligations to uphold the fundamental rights of victims.  The completion strategies must continue to adhere to certain links, including the winding down of the Tribunals’ mandate.  The task of guaranteeing a smooth transition between their closure and the creation of residual mechanisms required great care.  Deadlines for extending the conclusion of their work must be reasonable, taking into account both Tribunals’ caseloads and resources.  The mandates should not be extended indefinitely.  The Council must monitor the Tribunals’ work and adapt its decisions accordingly.


The referral of new cases to national jurisdictions required security for witnesses and victims, he stressed, voicing support for referrals except in cases where the implications were such that they must be dealt with by the Tribunals.  It was also necessary to continue to create mechanisms that would make it possible to reduce staffing levels so that the Tribunals’ work met financial and budgetary concerns.  Mexico acknowledged the merit of the proposals by both Tribunals to redeploy judges to bolster the Appeals Chambers, and supported the establishment of residual mechanisms, carefully taking into account various aspects such as mandates, functioning, composition and budget.  The Council should remain focused on the main objective of guaranteeing that the wheels of justice continued to operate, and combating impunity for the most heinous crimes against humanity.


NORIHIRO OKUDA ( Japan) admitted that his country’s expectations that the Tribunals would complete proceedings in 2010 were no longer realistic, but stressed that the Japanese Government would encourage them to complete their work as speedily as possible, aiming for the end of 2012 rather than mid-2013 as their completion date.  Japan was prepared to work on Council measures to hasten the completion strategy, which might include extending or redeploying some judges in a cost-effective manner.  Japan encouraged the Member States concerned to cooperate by arresting the two suspects indicted by the Yugoslavia Tribunal and the 13 indicted by the Rwanda Tribunal, including Felicien Kabuga.


It was unfortunate that the transfer of cases to national jurisdictions had not been completely successful, he said, voicing the expectation that additional transfers might be possible in the near future, in light of ongoing efforts by national courts.  Also, given that the Tribunals had been established as exceptional measures, they faced challenges unique to ad hoc bodies, including the need for a residual mechanism after completion, which had not been anticipated at the time of their establishment.  Such mechanisms must live up to international standards while remaining cost-effective.  Since January, intensive and extremely useful discussions had been taking place in the informal working group and Japan would continue to be an active participant.


ROSEMARY DICARLO ( United States), applauding the work carried out by the Tribunals thus far, urged them to strive for completion in the most timely manner.  Their requests for the extension of judges’ mandates should be granted.  The United States called on all Member States to cooperate in bringing all remaining fugitives to justice and called on Kenya, in particular, to take additional steps to help the Rwanda Tribunal capture the fugitive reportedly on its territory.


She recognized, in addition, Serbia’s efforts to locate fugitives from the Yugoslavia Tribunal, urging that country to provide all necessary assistance with regard to the two remaining fugitives accused of committing crimes in the former Yugoslavia.  The United States trusted that Croatia would provide all necessary cooperation in providing documents in the cases concerned.  On the creation of residual mechanisms, the Council should create an enduring record of crimes and judicial responses that must not be forgotten.


JORGE URBINA ( Costa Rica) said the establishment of the Tribunals had been a step against impunity, creating an important deterrent and showing that peace and justice were not at odds.  Another important legacy of the Tribunals would be the strengthening of national courts.  There was a need to continue capacity-building efforts and to guarantee impartiality in cases transferred to national jurisdictions.  The residual mechanisms must be able to try fugitives still at large.  Due process must always be accorded and the judicial proceedings should, therefore, make the most of the resources assigned, while upholding standards of justice.


Council President BAKI İLKIN ( Turkey), speaking in his national capacity, encouraged the Tribunals to continue their efforts to expedite proceedings without prejudice to the principles of fair trial.  In order for that to happen, the Council must take additional measures to match the judicial capacity of the Tribunals with current circumstances.  Turkey was ready to support such measures.


Noting that the number of fugitives remained unchanged since the last reports from the Tribunals, he appealed to all States to cooperate fully in their pursuit and arrest.  With regard to the referral of cases to national jurisdictions, the international community should provide support to strengthen the national institutions of the countries concerned.  As for residual issues, Turkey expected the Working Group to resolve the remaining issues in the coming months.


FEODOR STARČEVIĆ ( Serbia) said his Government appreciated the recognition it had received for its efforts to provide witness protection, documents, and other forms of technical assistance to the Yugoslavia Tribunal.  There seemed to be a growing belief in Serbia’s commitment to the Tribunal and in apprehending Mladić and Hadžić, as indicated by the Secretary of State of the United States, who had recognized that Serbia was “doing its best”.  In the past two weeks, the Government had circulated a report on its activities in relation to the Tribunal and had informed the diplomatic community about recent developments in that regard, following the Prosecutor’s recent visit to Belgrade.


He said his country continued to support the Tribunal’s completion strategy, through which it had identified 12 of the most important functions of the residual mechanism to be set up upon the completion of proceedings.  One of those functions related to the Tribunal’s archives.  The Government of Serbia had presented its official position to the Tribunal and the Security Council on that topic on 23 October 2008, and was interested in participating in ongoing dialogues concerning that issue.  The Government had also presented its views on the residual mechanisms after adopting an official position on 13 March.


IVAN BARBALIĆ ( Bosnia and Herzegovina) said his country’s judicial authorities took very seriously the referral of cases to national jurisdictions as a very important component of the completion strategy.  The number of cases referred to Bosnia and Herzegovina was significant compared with other countries in the region.  The War Crimes Chamber of the country’s State Court was fully operational and its judges, in cooperation with international counterparts, had created a positive judicial environment and conditions.  Bosnia and Herzegovina continued to grant the Tribunal access to Government archives and to provide requested documentation.  The relevant authorities had also provided adequate responses to requests for assistance and facilitated the appearance of witnesses.


He said that a State strategy on war crimes cases, adopted by the Council of Ministers in December 2008, set the criteria for distributing cases between State and lower courts, while cataloguing the crimes committed.  It also stressed the importance of regional cooperation in war crime investigations and called upon authorities urgently to improve that cooperation.  In that context, it was unacceptable that the Government of Serbia had issued, through Interpol, international arrest warrants for 19 citizens of Bosnia and Herzegovina for allegedly having committed war crimes in that country.  The Tribunal had returned that case to the relevant institutions in Bosnia and Herzegovina, which should process it.


Bosnia and Herzegovina recognized the Prosecutor’s dedication and determination to secure justice for victims, he said.  But the fact that two fugitives remained at large was a serious obstacle to fulfilling the Tribunal’s mandate.  They must be tried and Bosnia and Herzegovina called for the immediate arrest of Mladić and Hadžić.  That must remain the Tribunal’s main priority and the reason why the international community should not declare its mandate complete until justice was served.  Implementation of the completion strategy was of great concern as the international community’s strong involvement in the arrest and trial of the remaining fugitives, contempt proceedings, and supervision and management of prison sentences was very much required.  The cooperation and support of all countries was crucial in ensuring that impunity was not an option.


MARTIN NGOGA, Prosecutor General of Rwanda, said his Government had consistently extended its cooperation and support to the Rwanda Tribunal by facilitating access to witnesses, assisting in their movement to and from Arusha, and ensuring witness security, among other things.  Although the Prosecutor’s request to transfer cases to Rwanda had been rejected, the Government remained prepared to receive any future cases.  Regarding the objections to referral, Rwanda was proposing amendments to the laws governing the transfer of cases and the law abolishing the death penalty.  It also had established a witness protection unit within the judiciary.


He said the decision to reject transfers to Rwandan jurisdiction had severely undermined the Government’s ability to pursue and bring to justice those suspected of genocide all over the world.  It had diluted efforts to tackle impunity, setting back any progress in national reconciliation and reconstruction.  “Erroneous, factually incorrect assessments” and occasional “deliberate misrepresentations” by human rights organizations, such as Human Rights Watch, had contributed to that effect.


Remarking on the process to determine the final destination of the Tribunal’s archives, he said they should be transferred to Rwanda upon completion of the Tribunal’s mandate.  They were a part of the country’s history and vital to preserving the memory of the genocide and educating future generations on genocide prevention.  The Government was hopeful that the final destination would be Rwanda, without prejudice to the question of ownership and the issue of unrestricted access by the international community.  The Rwandan Government had ratified agreements with the Tribunal and with the Special Court for Sierra Leone on the serving in Rwanda of sentences handed down by those two bodies.  They were considered central in dispelling mistrust of Rwandan institutions and would contribute to the reconciliation process.


ZACHARY MUBURI-MUITA ( Kenya) said his country had been, and remained, an active player in the international criminal justice system.  Rwandan fugitives found within Kenyan territory in the past had been arrested and surrendered to the Tribunal.  The country had helped deliver the highest number of genocide suspects, a testament to its commitment to the Tribunal’s work in particular and to the administration of international criminal justice in general.  Felicien Kabuga was not in Kenya.  He had been in the country in the early years, but he was certainly not there now.  Kenya had nothing to benefit from hiding him and, with the kind of reward on his head, no Kenyan would allow him to “run around”.  The Government of Kenya had followed every possible lead and had come to a dead end.  Comprehensive reports to that effect had been made to Arusha.


Advising the Prosecutor to widen his search, he said it should include destinations where the money trail led, and where the fugitive was said to own other property.  The Kenyan Government had been engaged in consultations with the Prosecutor’s Office and the Tribunal was aware that the Kenyan authorities were vigorously defending in the Court of Appeal a lower-court decision to freeze transactions relating to property registered in Mr. Kabuga’s name.  The Government’s commitment to the cause of the Tribunal was unquestionable, and should the fugitive ever be found within Kenyan territory, he would be apprehended and surrendered to Arusha.  Kenya reassured the Council of its unwavering commitment to cooperate fully with the Tribunal in support of international criminal justice and the eradication of impunity.


Mr. BYRON, President of the International Criminal Tribunal for Rwanda, thanked delegates for their support and reiterated his intention to complete proceedings expeditiously and with the highest standards.


Mr. JALLOW, Prosecutor of the International Criminal Tribunal for Rwanda, while acknowledging Kenya’s support over the years, stressed that Mr. Kabuga’s remaining at large had been an issue since the 1990s.  If he had indeed left Kenya, the Tribunal would like to have a full accounting of that fact.


He said he had been following allegations about crimes committed by members of the Rwandan Patriotic Front, as well as trials arising from earlier crimes that had been held in Rwandan courts under monitoring by the Tribunal.  Two dozen officers had been prosecuted in the recent past and proceedings were ongoing.  However, proceedings concerning the latest allegations were not yet ready.


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For information media • not an official record
For information media. Not an official record.