Pressure to Conclude Trials, ‘Staff Attrition’ Among Obstacles Cited as Officials of International Criminal Tribunals Brief Security Council

6 December 2010
SC/10101

Pressure to Conclude Trials, ‘Staff Attrition’ Among Obstacles Cited as Officials of International Criminal Tribunals Brief Security Council

6 December 2010
Security Council
SC/10101
Department of Public Information • News and Media Division • New York

Security Council

6434th Meeting* (AM)

Pressure to Conclude Trials, ‘Staff Attrition’ Among Obstacles Cited as Officials

of International Criminal Tribunals Brief Security Council

 

Members also Discuss Need for Greater Cooperation

In Arresting Fugitives, Transfer of Accused Persons to National Courts

As part of its efforts to call to account those bearing the greatest responsibility for recent atrocities, the Security Council today heard reports by the heads of the international tribunals for Rwanda and the former Yugoslavia as it considered obstacles to the completion of their work, the consequences for the fortification of international criminal law and the Tribunals’ legal legacy.

Briefing first in the series of biannual reports presented to the Council was Judge Patrick Robinson, President of the International Tribunal for the Former Yugoslavia, who said that 13 persons were in appeal proceedings and 18 on trial while two accused – Ratko Mladić and Goran Hadžić – remained at large.  To date, proceedings had been concluded against 125 of the 161 persons indicted.

Frank in his assessment, Mr. Robinson said the Tribunal was taking all measures possible to expedite its trials without sacrificing due process, but judges were feeling extreme pressure to expedite their work.  “This troubles me,” he said, adding:  “Judges are entitled to work in an environment free from all external pressures, so that their independence is not compromised, or appear to be compromised.”  Despite “Herculean efforts”, some time estimates for the completion strategies had to be pushed back due to such factors as witness intimidation, the non-appearance of witnesses, the complexities associated with self-represented accused, the discovery of new evidence and staff attrition.  What would be remembered of the Tribunal’s contribution to implementing the Council’s own vision of a world ruled “not by might, but by right”, would not be delayed trials, but the achievement of justice and the courage of those willing to “do what was necessary to make justice a living and breathing reality”, he said.

In a similar vein, Judge Dennis Byron, President of the International Criminal Tribunal for Rwanda, stressed that the significant contribution of the Tribunals to international law and the acceptance of justice as an indispensable element of international peace and stability must not be forgotten in focusing on their completion strategies.  Since June, the Tribunal had rendered five trial and two appeal judgements, reducing to 10 the number of remaining trial-level judgements to be delivered, he said.  Judgements in four trials were expected in the first half of 2011, with the remaining six judgements expected before the end of that year.

Emphasizing that judgement delivery dates could only be estimated, he maintained that the goal of completing all first-instance trials within the next year could be achieved, but warned that completing a new trial, due to commence in January, by the end of 2011 would be an “ambitious” goal.  Furthermore, advances could not be maintained unless, among other innovations, the pressing staffing situation was addressed, he said, pointing out that the Tribunal had lost almost 100 staff members in 2010.

“We have our eyes firmly fixed on the completion of our activities,” Serge Brammertz, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, assured Council members.  The challenge was to finalize the work expeditiously while preserving the integrity of the findings and the overall interests of justice.  While the original deadline — the end of 2010 — would pass while the Tribunal was still occupied with multiple trials and appeals, there were many reasons for the delays, including the “complex and unpredictable” nature of international criminal justice, he said.

Outlining the four current priorities of his Office, he said they began with the successful and efficient completion of trials and appeals, for which it was working at maximum capacity.  The second priority was securing the cooperation of States, he said, noting that Serbia’s cooperation in ongoing cases was “proceeding well”, but its failure to capture Ratko Mladić and Goran Hadžić was a foremost concern.  “ Serbia must bridge the gap between its stated commitment to the arrests and the effectiveness of its operations on the ground,” he emphasized.  “Time is passing and we are not seeing results.”

The third priority was building capacity for the Tribunal’s national counterparts in the region to establish accountability for war crimes committed during the conflict, and the final priority was downsizing the Prosecutor’s Office and ensuring a smooth and effective transition to the proposed residual mechanism.  He stressed that, after 17 years of groundbreaking work and important accomplishments, “we must not falter at the final hurdle”.

Hassan Babacar Jallow, Prosecutor of the International Criminal Tribunal for Rwanda, said that a sympathetic consideration of its “winding-down” difficulties would greatly facilitate its efforts for the timely and effective completion to which it remained fully committed.  The Prosecutor’s Office had focused, among other core activities, the trial-readiness of new cases; the completion of ongoing trials; preparations for the renewal of its requests for the referral of cases for trial in Rwanda; and preparations for the commencement of Rule 71bis evidence-preservation proceedings in respect of three top-level fugitives.  It was also engaged in conducting final and interlocutory appeals, intensifying tracking efforts aimed at the apprehension and transfer to the Tribunal of remaining fugitives, and providing legal assistance to national prosecuting authorities in respect of cases under investigation.

Speaking in his capacity as Chair of the Informal Working Group on International Tribunals, Thomas Mayr-Harting ( Austria) reported that it was now close to concluding discussions on a draft resolution on the establishment of an international residual mechanism for criminal tribunals.  On 24 November, the Chair had presented a package consisting of a draft resolution, to be adopted under Chapter VII of the United Nations Charter, in which the Council would decide to establish such a mechanism, with a branch each for the Rwanda and former Yugoslavia Tribunals, to continue certain essential functions.

In the ensuing debate, Council members generally agreed that the early establishment of a residual mechanism would add another element of certainty in the delivery of justice, with many members indicating that their respective countries had participated actively in that endeavour.  Council members commended the Tribunals’ steady progress in implementing their completion strategies, despite daunting challenges, and their firm commitments to balance expeditious proceedings with full respect for due process standards.

Delegates expressed concerns, however, over staff constraints, especially the loss of highly qualified personnel at the present critical stage in the Tribunals’ work.  The need for enhanced cooperation by all concerned States was deemed crucial for the success of their completion strategies and essential in ensuring the apprehension of fugitives remaining at large.  Also central was the need for a smooth transfer of cases to national jurisdictions.  Strengthening national judiciaries was seen as a way to reduce the overall workload of the Tribunals, which were lending ample support to the domestic courts.  Some delegations favoured the extension of terms of office for judges and equal compensation for permanent and ad litem judges.  At stake, members agreed, was the need to ensure justice for the victims and to fight impunity.

Austria’s representative also spoke in his national capacity, as the Council heard statements by representatives of France, Brazil, Lebanon, Bosnia and Herzegovina, Japan, United Kingdom, Turkey, Nigeria, Gabon, China, Russian Federation, Uganda, Mexico, United States, Croatia, Serbia and Rwanda.

The meeting began at 10:16 a.m. and ended at 1:02 p.m.

Background

The Security Council met this morning to consider the reports of the United Nations International Criminal Tribunals for Rwanda and for the former Yugoslavia.

In his Report on the completion strategy of the International Criminal Tribunal for Rwanda (as of 1 November 2010) (document S/2010/574), Tribunal President Dennis Byron says the Tribunal has completed its trial-level work with respect to 60 of the 92 accused.  Appellate proceedings have been concluded in respect of 33 persons, six appeal judgements are expected in 2011, seven in 2012 and the remaining five by the end of 2013.  Judge Robinson says 10 fugitives remain at large, and the Office of the Prosecutor has handed over 25 case files to the Prosecutor-General of Rwanda.  As for residual issues, archiving activities remain on schedule, he says.  “The Tribunal will leave a unique legacy for the development of international criminal law and the fight against impunity for genocide, war crimes and crimes against humanity.”

According to the report, the Tribunal remains committed to completing its current trial workload before the end of 2011, with appeals to be completed in 2013.  However, the greatest challenge to the completion strategy remains the staffing situation, which suffers from a high turnover rate.  The completion strategy limits the possibilities for attracting qualified staff through long-term contracts.  Measures to help reduce delays in recruitment procedures and the possibility of offering longer-term contracts would help address the situation, freeing staff from the burden of constantly renewing short-term temporary contracts and allowing them to focus on their substantive work.

In addition to its judicial work, the Tribunal will focus on ensuring the arrest of the remaining fugitives and on deepening mutual legal assistance with Member States regarding investigations and the prosecution of crimes relating to the Rwanda genocide.  “Over 16 years have passed since those horrendous crimes were committed and several indictees still remain at large.  Only closer cooperation between all Member States can prevent the continuation of impunity,” Judge Byron writes.

The Council also had before it the Assessment and report of Judge Patrick Robinson, President of the International Tribunal for the Former Yugoslavia, covering the period from 15 May to 15 November and the Report of Serge Brammertz, Prosecutor of the International Tribunal for the Former Yugoslavia (document S/2010/588).

In his report, Judge Robinson states that as of 15 November, 13 persons are in appeal proceedings and 18 on trial.  While the Tribunal continues to take all measures possible to expedite its trials without sacrificing due process, estimates for the completion of some trials had to be amended as a result of unforeseen factors not under the Tribunal’s control.  All appeals are still scheduled for completion by the end of 2014, although that date might be optimistic in respect of the Karadžić case due to newly discovered evidence.

Contempt of the Tribunal continues to pose serious challenges as investigations, trials and appeals concerning contempt allegations sap finite resources, Judge Robinson says.  The Tribunal has transferred all low- and mid-level accused from its trial docket to national jurisdictions, in accordance with Council resolution 1503 (2003), he says, adding that staff attrition has contributed significantly to slippage in practically all cases and stresses the need for measures to help retain staff.  “If this problem is not addressed, the situation will worsen and slippage will continue to thwart the implementation of the completion strategy,” he warns.

Pointing out that victims of the conflict of the former Yugoslavia have a right to compensation in international law, he appeals to the Council to implement paragraph 13 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly, which provides for the establishment of national and other funds for compensation.  “The failure to properly address this issue constitutes a serious failing in the administration of justice to the victims of the former Yugoslavia,” he writes.

The reports describes in detail the measures it is taking to address residual issues, including:  referral of further cases to national jurisdictions and further strengthening of the capacity of affected countries; reviewing witness protection orders; archiving; and examination of the feasibility of establishing information centres in affected countries to provide access to copies of public records.

In conclusion, Judge Robinson writes that “The Tribunal has successfully brought to trial those accused of serious violations of international humanitarian law, thus sending a clear and unequivocal message that impunity for such offences will not be tolerated.  […] the Tribunal has helped to fortify the rule of law in the former Yugoslavia and in the wider global community.  Towards this end, all States are urged to adopt all possible measures to secure the immediate apprehension of the two remaining fugitives – Ratko Mladić and Goran Hadžić.”

Mr. Brammertz states in his report that the Office of the Prosecutor has four priorities:  the expeditious completion of trials and appeals; the arrest of Ratko Mladić and Goran Hadžić; strengthening its partnership with counterparts in the region of the former Yugoslavia; and closing the Office in an efficient and considered manner by downsizing in a fair and transparent way while ensuring that institutional knowledge and lessons learned are collected and recorded as part of the Tribunal’s legacy.

On the question of cooperation from the States of the former Yugoslavia, he notes that Bosnia and Herzegovina, both at State and entity levels, responded promptly and adequately to requests for documents and access to Government archives, and facilitated the appearance of witnesses before the Tribunal.  However, the indicted Radovan Stanković remains at large more than five years after his escape from prison in Foca.  Croatia is generally responsive to requests for assistance, which are answered adequately except in respect of tracking down missing military documents in the case of Gotovina et al.  He urges the authorities to continue the administrative investigation and to account fully for the missing documents.

As for Serbia, the Prosecutor says he requires the State’s assistance in the key matter of arresting Ratko Mladić and Goran Hadžić since Serbian efforts to apprehend them remain problematic.  A number of shortcomings in the conduct of operations to apprehend the fugitives must be addressed urgently and the Prosecutor’s Office strongly encourages the authorities to explore more expeditiously fresh leads and avenues in the search for the fugitives.  “Without a more proactive approach, results will not be achieved,” he writes, noting, however, that Serbia’s responses to requests for access to documents and archives have been timely and adequate.

Briefings

PATRICK ROBINSON, President of the International Criminal Tribunal for the Former Yugoslavia, presented his biannual report, noting that at the close of the reporting period, 13 persons were in appeal proceedings, 18 were on trial and two accused – Ratko Mladić and Goran Hadžić – remained at large.  To date, proceedings had been concluded against 125 of the 161 persons indicted.  Three trials and a partial retrial would conclude in 2011, five trials were expected to conclude in 2012 and the final case – that of Karadžić – should be completed at the end of 2013, although unavoidable delays might cause a reassessment of the latter date.

The Tribunal continued to take all measures possible to expedite its trials without sacrificing due process, he said, pointing out, however, that judges had reported feeling extreme pressure to expedite their work.  “This troubles me,” he continued, adding:  “Judges are entitled to work in an environment free from all external pressures, so that their independence is not compromised, or appear to be compromised.”  Despite “Herculean efforts”, some time estimates had to be pushed back due to such factors as witness intimidation, the failure of witnesses to appear, the illness of accused persons, the death of defence counsel, the complexities associated with self-represented accused, the discovery of new evidence and staff attrition.

Thanking the Council for helping to stem staff attrition through June’s resolution 1931 (2010), he said that unfortunately it had not been translated into action due to “confusion” that had started with General Assembly resolution 63/256.  In addition, the Staff Management Coordination Committee had recently recommended more secure contracts for Tribunal staff, but the Office of Human Resources Management maintained that the resulting indemnity must be covered by existing Tribunal resources, which made the recommendation “meaningless”.  The Office had similarly rendered meaningless a recommendation that Tribunal staff be given priority for other posts, he said.

Calling for the establishment of a victims’ trust fund so that justice could be restorative, as well as retributive, in order to build a lasting peace, he said he was sensitive to the financial difficulties being experienced by Member States, but stressed that it was precisely in difficult times that justice must be safeguarded.  “Those of us at the Tribunal who go to work each day and who have faithfully remained at our posts desperately need our parent, the Security Council, to stand by us, as well as implement your vision of a world that is ruled not by might, but by right,” he said.  What would be remembered of the Tribunal’s contribution to that effort would not be delayed trials, but the achievement of justice and the courage of those willing to “do what was necessary to make justice a living and breathing reality.”

DENNIS BYRON, President of the International Criminal Tribunal for Rwanda, presented its fourteenth Completion Strategy Report, saying that since the June report, the Tribunal had rendered five trial and two appeal judgements, reducing to 10 the number of remaining trial-level judgements to be delivered.  Judgements in four trials, of 15 accused, were expected in the first half of 2011, with the remaining six judgements, of seven accused, expected before the end of that year.  Authorization had been requested for three judges to finish remaining work, he said, asking the Council for its support in winning approval for that request.  He also called on Council members to consider accepting referral cases under home jurisdiction, as Rwanda was willing to do.

Emphasizing that judgement delivery dates could only be estimated, he maintained that the goal of completing all first-instance trials within the next year could be achieved, but warned that completing a new trial that would commence in January by the end of 2011 would be “ambitious”.  Appeals should be concluded by the end of 2013, depending on the staffing situation and other factors.  Trial-management initiatives had resulted in more expeditious proceedings while upholding the highest standards of fair trial rights.

However, those advances could not be maintained unless the pressing staffing situation was addressed, he warned, noting that the Tribunal had lost almost 100 staff members in 2010.  More innovation must be applied in administering staff rules to stem attrition, he said, citing the example of an important post that had been empty for five months owing to the current inflexible application of rules.  He called on Member States to recognize the unique circumstances of a downsizing institution and to encourage responsible bodies of the Organization to be flexible in applying staff rules while preserving their principles.  He also stressed the importance of ad litem judges, expressing hope that the General Assembly would act appropriately towards them in the interests of the completion strategy.

Turning to State cooperation with the Tribunal, he thanked Member States that had concluded agreements to receive convicts, noting an addition agreement signed with Senegal two weeks ago.  Despite significant efforts by the Registrar, however, three acquitted persons had still not been resettled and remained in safe houses in Arusha.  The relocation of convicted persons who had served their sentences also needed urgent attention, he said, warning that unless a comprehensive, long-term approach to the problem was taken, the interests of justice and the rule of law would not be served.

Calling for an urgent review process to develop a lasting mechanism, he also reiterated the importance of cooperation by Member States in bringing to justice 10 fugitives who remained at large, noting that Kenya had recently met with Tribunal representatives.  In closing, he stressed that the significant contribution that the Tribunals had made to international law and the acceptance of justice as an indispensable element of international peace and stability must not be forgotten in focusing on the completion strategy.  “As our Tribunal, in its current form, draws to a close, we should all redouble our efforts to ensure its lasting legacy as a beacon for international justice.”

SERGE BRAMMERTZ, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, said, “We have our eyes firmly fixed on the completion of our activities.”  The challenge was to finalize the work expeditiously while preserving the integrity of the findings and the overall interests of justice.  Everyone had a common interest in striking the right balance between those two important objectives.  While he was conscious that the original deadline — the end of 2010 — would pass while the Tribunal was still occupied with multiple trials and appeals, there were many reasons for the delays, including the “complex and unpredictable” nature of international criminal justice.  Taking responsibility nevertheless for delays that could be attributed to the Office of the Prosecutor, he assured the Council that it was continuously reflecting on its performance and devising strategies to further improve its efficiency.

Outlining the four current priorities of his Office, he said they began with the successful and efficient completion of trials and appeals, for which it was working at maximum capacity.  However, the increasingly frequent rates of staff departures, particularly in the critical final phase of cases, meant asking more and more of those who remained.  The second priority was securing the cooperation of States, he said, noting that Serbia’s cooperation in ongoing cases was “proceeding well”.  The Serbian Government was facilitating requests for access to documents and archives, in addition to handling witness-related issues in a satisfactory manner.  However, its failure to capture Ratko Mladić and Goran Hadžić was a foremost concern.  “ Serbia must bridge the gap between its stated commitment to the arrests and effectiveness of its operations on the ground,” he emphasized.  “Time is passing and we are not seeing results.”

Recalling a number of recommendations made in the last completion strategy report with the aim of improving the effectiveness of Serbia’s efforts to capture the fugitives, he said that, during his November visit to the country, he had seen that the authorities were working on implementing the recommendations, but much still remained to be done and the progress must be hastened.  Overall, Serbia needed to adopt a more proactive approach to arresting the fugitives by employing a comprehensive strategy that integrated all relevant actors and covered all possible angles in exerting positive pressure for the arrests.  Serbia held the key to capturing the fugitives, who could be brought to justice if all relevant actors were sufficiently committed and worked effectively together to bring it about.

Turning to Croatia, he said the authorities were “generally responsive” to requests for assistance, and the key outstanding issue remained the request for important military documents relating to Operation Storm.  The Task Force established by the Government to locate or account for the missing documents had now started exploring new investigative avenues identified by the Prosecutor’s Office.  However, reports from the Croatian authorities revealed inconsistencies and raised questions that had not been resolved, he said, encouraging Croatia to address those problems and account for the missing documents.

Concerning Bosnia and Herzegovina, he said he had seen satisfactory responses to requests for assistance, but the authorities must redouble their efforts against fugitive networks.  That convicted war criminal Radovan Stanković remained at large more than three years after escaping from prison was a serious concern.  “We ask that all possible steps are taken to return Stanković to custody and to sanction those who facilitated his escape.”  Stressing the importance of coordinated strategies among the States of the former Yugoslavia in prosecuting war crimes, he said barriers to the extradition of suspects and the transfer of evidence across State borders were impeding efforts to establish accountability for war crimes throughout the region.

He said the third priority was building capacity for the Tribunal’s counterparts in the region to establish accountability for war crimes committed during the conflict, and the final one was downsizing the Prosecutor’s Office and ensuring a smooth and effective transition to the proposed residual mechanism.  After 17 years of groundbreaking work and important accomplishments, “we must not falter at the final hurdle”, he stressed.  With the international community’s assistance, and the effective implementation of conditionality policies, positive incentives could help encourage Serbia to precipitate the fugitives’ arrests.  With the concerted efforts of all relevant actors, the Tribunal could prevail over the fugitives and their support networks.

HASSAN B. JALLOW, Prosecutor of the International Criminal Court for Rwanda, said that in the past six months, his Office had continued to focus on core activities for the trial-readiness of new cases; the completion of ongoing trials; preparations for the renewal of its requests for the referral of cases to Rwanda for trial; preparations for the commencement of Rule 71bis evidence-preservation proceedings in respect of three top-level fugitives; the conduct of final and interlocutory appeals; the intensification of tracking efforts aimed at the apprehension and transfer to the Tribunal of the remaining 10 fugitives; and the provision of legal assistance to national prosecuting authorities in respect of cases they were investigating.

He said that with today’s delivery of a judgement in the Hategegimana case, the Tribunal had now handed down four judgements.  It had completed the evidence phase of the Gatete case and closed the prosecution phase in respect of three other cases — Nzabonimana, Ngierabatware and Ndahimana — which were now in the defence phase.  The Prosecution was ready to commence its case in respect of Nizeyimana, now scheduled for trial on 17 January 2011, and had been able to secure the arrest of Jean Uwikindi, an indicted fugitive in Uganda, and transferred him to the Tribunal.  He thanked the Ugandan Government for its cooperation in that regard.

Summarizing other developments, he said the referral of all but three of the 10 fugitives to national jurisdictions remained a key element of the completion strategy.  In the absence of acceptance of those cases by other Member States, Rwanda remained the focus of the referral strategy, he said, expressing hope that Member States with the requisite capacity would share responsibility for the completion strategy by accepting the transfer of the cases of one detainee and six fugitives to their national jurisdiction.  He specifically called upon Council members to consider accepting cases in their home jurisdictions, just as Rwanda was willing to do.

He said that a determination on the referral of seven fugitives to national jurisdictions for trial would clearly impact the Tribunal’s completion strategy, as well as the design, timing, size and cost of the international mechanism expected to inherit its residual functions.  In the absence of such transfers and with the probable arrest of fugitives in the near future, the Tribunal’s work could increase significantly, thus extending the projected completion date for trials.  The transfer of such a workload to the proposed residual mechanism would expand substantially the size of such an interim institution, he said, noting that on the other hand, its referral to national jurisdictions could possibly see the end of trials at the Tribunal by the end of 2011.

Tracking efforts to secure the arrest and transfer of Félicien Kabuga, Protais Mpiranya and Augustine Bizimana remained a top priority, he said, adding that the majority of fugitives had been located in the Democratic Republic of the Congo.  On several occasions, he had visited that country and spoken to high-level Government officials, who had promised their support and cooperation.  However, there had been little progress in that matter, he said, stressing that the Governments of the Democratic Republic of the Congo, Kenya, Zimbabwe and neighbouring States must intensify their cooperation and search for the 10 fugitives, all of whom were within East, Central and Southern Africa, according to the Tribunal’s sources.

He said cooperation between the Tribunal and national prosecuting and judicial authorities had grown as an increasing number of national jurisdictions opted to investigate, prosecute or otherwise deny safe haven to genocide suspects residing within their respective jurisdictions.  In the months ahead, the Tribunal expected to commence the trial of the only remaining detainee, Idelphonse Nizeyimana; to file additional requests for referrals to national jurisdictions; to intensify efforts in tracking; and to prepare for the commencement in early 2011 of Rule 71bis evidence-preservation hearings in respect of the Kabuga, Mpiranya and Bizimana cases.  Extended multitasking by staff and their concerns about contract extensions and future employment security all added to the continuous loss of critical resources required for timely and effectively completion of the Tribunal’s mandate, he said.  A sympathetic consideration of its “winding-down” difficulties would greatly facilitate its efforts for the timely and effective completion to which it remained fully committed.

Statements

THOMAS MAYR-HARTING ( Austria) provided an update on the Security Council Informal Working Group on International Tribunals, chaired by his country, saying it had met regularly since the 18 June briefing while continuing its informal dialogue with affected countries and the countries hosting the Tribunals.  It was now close to concluding discussions on a draft resolution on the establishment of an international residual mechanism for criminal tribunals.  On 24 November, the Chair had presented a package consisting of a draft resolution, to be adopted under Chapter VII of the United Nations Charter, in which the Council would decide to establish such a mechanism, with a branch each for the Rwanda and former Yugoslavia Tribunals, to continue certain essential functions.  Annex I to the text would contain the statute for the proposed mechanism and annex 2 would contain transitional arrangements to determine the transfer of functions and competences from the Tribunals to the proposed mechanism.

He cautioned that if the Rwanda branch of the mechanism was not established in time, the Tribunal would have to maintain, in addition to completing all pending appeals, a full, although potentially inactive, trial capacity to deal with the eventual arrests of fugitives and related functions.  That would entail significant costs, considerably higher than those envisaged if the proposed mechanism took over the Tribunal’s trial function at an early date.  In any scenario, there would be an inevitable overlap, he said, adding that there was a “sense of urgency for the Council to reach agreement now to allow for sufficient time to make the necessary arrangements for a smooth transition to the mechanism, while avoiding any increase in costs”.  After two years of negotiations, a final agreement on establishing the proposed mechanism was “within reach”, he said, adding that outstanding questions could be resolved given the necessary flexibility and political will.  There was, therefore, cause for optimism that agreement could be reached “before the end of this year”.

Speaking in his national capacity, he reiterated his country’s full support for the Tribunals’ efforts to complete their work at the earliest possible date, but noted with concern that the most recent reports revealed “yet another slippage” of the trial and appeal schedules, suggesting that the Tribunal’s work was “not likely to finish until 2014, or in one case, even in 2015”.  Austria urged the Tribunals to take all possible measures to complete their work expeditiously.  He acknowledged the importance of staff retention and called on the Secretariat as well as other relevant United Nations bodies to work with the Registrars to find practicable solutions to that issue.  The arrests of fugitives remaining at large also remained a top priority for the completion of the Tribunals’ work, he said.

MARTIN BRIENS ( France) said his desire was for the two Tribunals to have a lasting impact wherever political and military leaders still thought they could achieve, or remain in, power through the use of violence.  The courts must be able to fulfil their respective mandates, so the Council’s vigilance must remain intact, particularly with respect to cooperation by States.  Arresting the fugitives was a priority and cooperation was not only a bilateral affair, he stressed.  The international community and the Security Council, which had established the Tribunals, had a direct interest in their success.

With respect to the Rwanda Tribunal, he said the President and Prosecutor had been nuanced in their assessment.  Tracking efforts to apprehend and transfer 10 fugitives to the Tribunal was a key priority and France welcomed efforts under way to secure the arrest of Félicien Kabuga.  He asked about progress with respect to the Democratic Republic of the Congo and Zimbabwe, where most of the fugitives were believed to have taken shelter.

Turning to the Yugoslavia Tribunal, he said he awaited Serbia’s arrest of Mladić and Hadžić, recalling that the European Union Council, in its decision of 25 October, had called for that country’s full cooperation in that regard.  Unless the fugitives were arrested in the next few months, it would be up to the proposed residual mechanisms to ensure that they were.  Today’s briefings had confirmed the difficulties of keeping to timetables if the Tribunals lacked the wherewithal to conduct trials and appeals.  There was also a need for pragmatic solutions for staff retention and the fulfilment of judges’ mandates.

MARIA LUIZA RIBEIRO VIOTTI ( Brazil) said that, despite significant hurdles, both Tribunals had made commendable efforts and clear progress in fulfilling their completion strategies, and deserved the Council’s support for a prompt conclusion of all remaining judicial activities.  She expressed deep concern over staffing issues, calling for an arrangement to ensure the retention of the most highly qualified staff.  In respect of fugitives, referral to national jurisdictions and other matters, all States concerned should be encouraged to do their utmost to respond promptly to requests by the Tribunals, she said.

Outreach and capacity-building became even more important as the completion strategy progressed, she said, stressing that affected communities should be well informed about how the process would impact the administration of justice and made aware of the proposed residual mechanism.  Member States interested in receiving cases should receive enhanced international cooperation to improve national capacities, she said, while emphasizing that the speedy conclusion of the tribunal’s activities should not be pursued to the detriment of due process.  However, no efforts should be spared in complying with deadlines.  The early establishment of a residual mechanism would add another element of certainty in the delivery of justice, she added, noting that her country had participated actively in that endeavour and pledging to continue doing so in the coming weeks.

CAROLINE ZIADE ( Lebanon) expressed appreciation for the Tribunals’ efforts in pursuit of their completion strategies and of the difficulties involved.  Reaffirming the need for the Council to adopt the necessary measures to enable the Tribunals to complete their work as soon as possible without sacrificing due process, she called for the transfer of cases when appropriate and welcomed Member States’ cooperation with the Tribunals in assisting with the arrests of remaining fugitives.  The Tribunals demonstrated a rejection of impunity and was the keystone of the protection of civilians, as well as the strengthening of the international rule of law.  Justice was now seen as an obligatory rite of passage out of conflict, she said, expressing her country’s support for all efforts to bolster the rule of law in that way.

IVAN BARBALIĆ ( Bosnia and Herzegovina), highlighting his country’s role as the one most affected by the crimes under the jurisdiction of one of the Tribunals, emphasized the importance of ensuring justice to the victims and their families, and holding accountable those behind the heinous crimes in Rwanda and the former Yugoslavia.  The reports made clear that the Tribunals had made every effort to conclude their work in an efficient and reasonable manner.  Their groundbreaking contributions to international jurisprudence should not be allowed to succumb to pressure to conclude their mandates with only partial results and without adequate solutions.  Thus, the Council’s support and encouragement was crucial at the present sensitive and important period in the Tribunals’ existence, he said, noting that the Working Group’s deliberations were moving towards the creation of a residual mechanism that would adequately reflect the Tribunal’s legacy.

He noted that his country had demonstrated a commitment to its obligations as well as unwavering support and dedication to strengthening international criminal justice.  Among other things, its authorities had effectively responded to all requests from the Prosecutor’s Office and facilitated the appearance of witnesses before the Tribunal.  Its cooperation had been particularly constructive in respect of the 11bis cases transferred to the War Crimes Chamber of the State Court of Bosnia and Herzegovina, he said, noting that five of the six cases transferred had been concluded with final decisions.  Bearing all that in mind, it was disappointing that 13 fugitives remained at large, “undermining and ridiculing” the very notion of justice to which all were dedicated.  The Tribunals’ efforts to comply with their completion strategy and the tireless work to develop a residual mechanism would be “useless until we take firm steps and serious measures to bring these criminals to justice”, he stressed.

SHIGEKI SUMI ( Japan), noting that his country had been strongly urging and expecting the Tribunals to complete all judicial proceedings by the end of 2010, said it was regrettable that that goal could not be achieved.  Japan strongly encouraged them to complete their work expeditiously, while continuing to ensure fair trials.  Extending judges’ terms was necessary to accomplish the completion strategies in an expeditious and cost-effective manner, and Japan was, therefore, prepared to play an active part in that effort.  He also took note of the need to retain staff, paying tribute to the judges, prosecutors, registrars and all Tribunal staff for their unyielding commitment to the fight against impunity.

As for State cooperation, he said the arrest of the remaining fugitives was “absolutely essential” for the Tribunals’ success.  The referral of cases to national jurisdictions was also important to the completion strategies.  In the case of the Yugoslavia Tribunal, access to archives, documents and witnesses was vital, he said, taking “positive note” of the cooperation by Croatia and Bosnia and Herzegovina.  Japan attached great importance to the rule of law and considered that impunity in the case of the most serious crimes must not be condoned.  The individuals involved must be brought to justice, he stressed, adding that the proposed residual mechanisms should serve that goal.  Japan had participated actively in the relevant discussions and would continue to do so.

PHILIP PARHAM (United Kingdom) reiterating his country’s support for the Tribunals, welcomed their efforts to meet their completion strategies while expressing regret over slippages in meeting deadlines.  He encouraged both Tribunals to look for the best approaches to avoiding further delays, without sacrificing due process and the exchanging of best practices.  While the United Kingdom supported the search for solutions to staff attrition, such matters were not in the competency of the Council, he said.

Emphasizing that the Tribunals’ work would not be complete until all fugitives were brought to justice, he called on Kenya, Democratic Republic of the Congo and Zimbabwe to continue or step up their cooperation with the Rwanda Tribunal.  He also welcomed steps now being taken by Serbia and Croatia to strengthen their cooperation with the Yugoslavia Tribunal, and called on them to continue to do so.  With regard to the proposed residual mechanism, he said the time was now ripe to adopt it, thereby providing a clear road map and ensuring that fugitives would be unable to outlast justice.

ERTUĞRUL APAKAN ( Turkey) said that, since the Tribunals were unable to complete all their work, it was now time to consider the creation of residual mechanisms to do so.  Turkey expected a draft resolution to be adopted before the end of the year and encouraged the Tribunals to continue preparing for the coming transition.  Concerned that fugitives remained at large, he said all relevant States must redouble their efforts to help bring them to justice.  Effective cooperation in other areas was also an essential part of the Tribunals’ work, he stressed, noting efforts by Serbia and Croatia in that regard.

U. JOY OGWU ( Nigeria) said she was deeply concerned that the work of the Tribunals had been fraught with delays, owing to, in particular, staff constraints, especially the loss of highly qualified personnel.  That incessantly undermined the completion of the Tribunals’ mandates, she said, adding that she could not overemphasize the urgent need for measures to support staff retention and recruitment, particularly at the present stage.  Only considerable action would reduce the rate of staff attrition.  Effective cooperation by all States was also crucial for ensuring the arrest of remaining fugitives, for proper referrals of cases to national jurisdictions and transfers for sentencing, as well as for the relocation of those who had served their time.

It was distressing that some fugitives remained at large, and it was necessary to ensure they were apprehended and brought to justice, she continued.  It was satisfying to note the increase in the number of referrals to national jurisdiction during the reporting period, which would reduce the Tribunals’ overall workloads.  Noting that the Tribunals had continued to make strides in strengthening the capacities of national jurisdictions, she commended the efforts of the Rwanda Tribunal to establish a response mechanism for mutual legal assistance requests from national authorities.  Such activities must be intensified since they would serve as precedents to guide national authorities in future.

EMMANUEL ISSOZE-NGONDET ( Gabon) stressed the need to buttress the Tribunals’ efforts in light of the difficulties they faced in discharging their mandates.  The Council’s constant support was indispensable for their proper functioning.  Resources must be increased in order to retain qualified staff, he said, adding that the effectiveness of the tribunals depended equally on cooperation by Member States in facilitating the arrest of high-ranking fugitives.  If they were not tried in the near future, the Tribunals’ credibility would be tarnished, he cautioned, encouraging European States, as well as those of the Great Lakes region and Southern Africa, among others, to enhance their cooperation, while commending Bosnia and Herzegovina.

He said strengthening national capacities could also play a role towards the successful completion of the Tribunals’ work, and the training of judges and auxiliary agents should continue as a fundamental aspect of that effort.  He also welcomed the special provisions to be implemented by the Rwanda Tribunal in response to requests for mutual legal assistance from nine States in the Great Lakes region.  The international Tribunals made an undeniable contribution to the development of international criminal law and the fight against impunity, he said, adding that their legal legacy must be preserved and supported.  A successful outcome should involve Governments, international organizations, national courts, non-governmental organizations and universities.  At stake was the need to ensure justice for the victims while fighting impunity.

GUO XIAOMEI ( China) acknowledged the progress that the Tribunals had made towards achieving their completion strategies, as well as the problems of meeting the timetable.  She expressed concern over delays, as well as understanding of the obstacles involved, and urged further efforts to expedite the work.  China hoped appropriate solutions could be found to reverse staff attrition, welcoming also requests for the transfer of cases, as well as efforts to ensure full cooperation with the Tribunals on the part of Member States.  China pledged its continuing active participation in consultations on residual mechanisms and hoped to see results by the end of the year.

ALEXANDER PANKIN ( Russian Federation) said that the completion of the Tribunals’ tasks would be complex while acknowledging the significant contributions of both courts.  However, there were reasonable limits to timetable extensions, he maintained, adding that it was difficult to explain some delays through objective reasoning.  He pointed to the relative speed of the Nuremberg trials after the Second World War, which had dealt with some of the most heinous crimes ever committed.  He said the draft resolution on the proposed residual mechanism should further detail completion timelines and how they should be achieved.  The timelines and competencies should be clearly detailed, including the proposed mechanism’s task of completing the Tribunals’ work.  All the countries concerned should step up their cooperation with the Tribunals with regard to apprehending fugitives still at large, as well as other matters.

RUHAKANA RUGUNDA ( Uganda) welcomed the trial-management initiatives undertaken by the Tribunals, which had resulted in more expeditious trials.  He also recognized how the discovery of new evidence might lead to further delays.  Accordingly, Uganda supported the request for the extension of judges’ mandates so they could complete their cases with due regard for the deadlines envisaged in the completion strategies.

He said he was concerned by the high turnover of highly qualified staff, which exacerbated an already difficult situation and further impacted the expeditious completion of trials.  The loss of some 100 staff members this year alone was a cause for particular concern, he said, calling on the United Nations Office of Human Resources Management to recognize the unique consequences of downsizing the Tribunals and exercise the necessary flexibility to remedy staff attrition.

Welcoming the Rwanda Tribunal’s plan to transfer some cases to national judicial systems and its increased tracking efforts to secure outstanding arrests, he said increased cooperation between the Prosecutor’s Office and the authorities in Kenya, Zimbabwe and the Democratic Republic of the Congo was crucial to successfully tracking the suspects.  It was also important to ensure that the relocation of witnesses and acquitted persons were properly handled, he said welcoming the recent signing of a cooperation agreement between Senegal and the Rwanda Tribunal.  It was essential to ensure that justice was not only done, but “seen to be done”.

CLAUDE HELLER ( Mexico) said that in light of today’s reports, which confirmed that the Tribunals would be unable to complete their work by the dates set by the Council, the work would most likely continue until the end of 2013.  That, alongside such factors as the lack of cooperation, difficulties in retaining qualified staff, and the absence of agreements on the relocation of acquitted persons, significantly challenged the completion of mandates.  In that regard, Uganda supported the extension of judges’ terms of office so they could conclude their cases.

The cooperation of States was equally essential, and concerned States should respond without delay to requests from the Tribunals, particularly with regard to locating and arresting fugitives, he said.  He commended the valuable judicial cooperation by the Governments of Uganda, Croatia and Bosnia and Herzegovina.  The referral of cases to national jurisdictions was also fundamental to the successful conclusion of cases and, thus, the tribunals should contribute to strengthening the capacities of national tribunals.

Amid the complex and detailed considerations heard today, he said, the Council must not lose sight of the main objective of guaranteeing justice with regard to the most serious crimes committed in the conflicts in the former Yugoslavia and Rwanda.  Nor should it overlook the fact that the Tribunals faced the ongoing challenges of ensuring a balance between rendering justice, effective administration, and guaranteeing the fundamental rights of accused, witnesses and victims.  For those reasons, the Council should strive to conclude negotiations on a residual mechanism in a manner satisfactory to all parties.

ROSEMARY DICARLO ( United States) the legacy of the two Tribunals should be assured by a mechanism that outlasted them and completed all remaining tasks.  They should complete their work at the earliest possible date, with fairness and efficiency going hand in hand.  As part of the completion, all individuals indicted must be brought to justice, she stressed, pledging her country’s continuing contributions to the effort to bring fugitives to justice, and calling on countries in the region to continue strengthening their cooperation in that regard.  Transfers of cases were also important to the completion strategies, she said, acknowledging Rwanda’s requests and efforts to accomplish legal reform in that light.  She commended the Chair of the Informal Working Group on Criminal Tribunals and thanked the United Nations Office of Legal Affairs for its efforts to help craft a residual mechanism.

RANKO VILOVIĆ ( Croatia) lauded the role of the Tribunals in the fight against impunity for serious crimes.  Approving also efforts to meet the deadlines of the completion strategies, he stressed, nevertheless, that timely completion should not be pursued at the expense of mandates or due process.  In that context, the Yugoslavia Tribunal’s mandate could not be considered accomplished until the two remaining fugitives, Ratko Mladić and Goran Hadžić, were brought to justice.  Croatia’s commitment to cooperate with the Tribunal was demonstrated by the prompt execution of all its orders and other binding decisions, as well as by full compliance with all 883 assistance requests received from the Office of the Prosecutor.  In that regard, Croatia had created a Special Task Force to strengthen that cooperation.

Regarding Mr. Brammertz’s remark about possible inconsistencies in the last three reports of the Task Force, he reaffirmed the Croatian authorities’ strong commitment to further clarifying such issues and expressed appreciation for Council members’ support for the activities of the Task Force.  There had been dialogue between Croatian officials “at the highest level” and the Tribunal during the reporting period, as well as a decision by Trial Chamber I explicitly recognizing Croatia’s proactive cooperation.  In full respect for that decision, the country was strongly determined to proceed with investigations to clarify remaining questions over missing documents.

Croatia, he continued, was also determined to continue with domestic efforts to prosecute all war crimes committed on its territory since 1991.  Particularly important in that regard was further enhancement of the working relationship with the Tribunal, as well as continuous strengthening of cooperation between prosecuting and judicial authorities in the region.  It was to be hoped that agreements on the residual mechanism, regarding in particular the management of archives, protection of witnesses and serving of sentences, would help safeguard the Tribunal’s legacy and the successful fulfilment of its remaining functions.

FEODOR STARČEVIĆ ( Serbia) said the cooperation between his country and the Tribunal, as described in the reports of the President and Prosecutor, was in accord with Serbia’s own assessment.  There were no outstanding requests for assistance in providing documents, and requests pertaining to witnesses and access to State archives were being processed on time and without difficulties.  That cooperation would continue.  With regard to remaining fugitives, it was evident that there was political will in Serbia to resolve that problem, he said, adding that the Prosecutor had acknowledged that cooperation.  As in the cases of the 44 individuals whom Serbia had transferred to the Tribunal, there was reason to expect that the results awaited by both the Tribunal and Serbia would be achieved.

He went on to state that his country continued to support fully implementation of the completion strategy, including the issue of the archives and the establishment of a residual mechanism, which should have the power to prosecute those who had been indicted but remained at large.  The goals of Serbia and the Tribunal were identical, he emphasized in conclusion.  Achieving those goals would contribute to the further normalization and improvement of relations among the States established in the territory of the former Yugoslavia.

EUGÈNE-RICHARD GASANA ( Rwanda) said that in the past year, his country had facilitated the Tribunal’s access to witnesses, both for the prosecution and defence, by supporting the national witness-protection service, established in the Prosecutor’s Office in Kigali, while providing all necessary information.  While regretting the pace of the trials and delays in meeting initial deadlines, the Government of Rwanda still supported the Tribunal’s completion strategy and took note of its commitment to complete first-instance trials by the end of 2011 and appeal trials by the end of 2013.  It also appreciated the Tribunal’s efforts to reduce delays, despite personnel problems, and encouraged it to continue along that path.

With the end of its work approaching, and given that it would not be possible for the Tribunal to judge all people sought, he reiterated his country’s request for the transfer of open cases to its jurisdiction.  Rwanda would continue to cooperate with the Tribunal in lifting any obstruction to the transfer of files.  The request was based on the simple fact that the crimes had been committed on Rwanda’s national territory, against its citizens by their own compatriots.  The national judiciary, which had acquired some experience over the years, was best placed to know the cases and had advantages regarding the proximity of witnesses and crime scenes.  It also had proximity for the conduct of the trials, which would serve as a “major didactic tool for reconciliation”.

Welcoming the arrests of those accused of genocide, he thanked fraternal countries such as the Democratic Republic of the Congo and Uganda, and said he was also grateful to the many Governments that had arrested and judged the perpetrators on the basis of their own national laws.  Rwanda also thanked Senegal for its recent signing of a transfer agreement for those in its custody.  It welcomed efforts by the Tribunal to arrest the 10 remaining fugitives, including one of the main architects of the genocide.

Pointing out that a “terrorist movement” remained in the Democratic Republic of the Congo, against which the Security Council had just renewed sanctions, he said it had just acquired new and unexpected reinforcements, comprising senior officers who, unfortunately, enjoyed the protection of certain countries.  Rwanda asked the Council to “use its weight” to prevent history from repeating itself, and to ensure the arrest of individuals cooperating with terrorist movements to destabilize the Great Lakes region.  Genocide ideology lay behind such movements, he added.

Describing the Tribunal’s archives as an integral part of his country’s history, he said they were, therefore, essential to preserving the memory of the genocide for the education of future generations.  Denial and trivialization of the genocide were growing and becoming “somewhat clichéd”, even among defence attorneys in Arusha, he said, noting that the Government of Rwanda was concerned about that regular denial, which reopened the wounds of people now engaged in reconciliation, especially it was about a crime punishable by law.  The Government remained determined that perpetrators of such crimes, “whether foreigners or attorneys”, should be brought to justice under national legislation.  The transfer to Rwanda of the Tribunal’s work and archives was for justice, memory, history and future generations.

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*     The 6433rd Meeting was closed.

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