Judge Gabrielle Kirk McDonald

President of the International Criminal Tribunal for the former Yugoslavia

8 November 1999

Mr. President,

It is truly an honour for me to address, for the final time, the General Assembly.  I will be leaving the Tribunal next week after having served as a Judge since it was established more than six years ago. In that short period of time the Tribunal has become an effective judicial institution, regularly conducting trials and appellate proceedings.  However, it still faces challenges.  Today I will discuss some of these challenges and how they may be resolved.

The Tribunal’s development can be divided into two stages.  In the early years, we were engaged in institution-building.  When the Tribunal was established in 1993, we had no courtrooms, no staff and no rules to govern our proceedings.  Thus, we worked hard at creating the means necessary to become a functioning international criminal court.  This we have done.   It is an achievement that is remarkable, particularly when one considers that national courts have taken hundreds - if not thousands - of years to establish their systems of justice.

The second phase of the Tribunal’s development began in October 1997 when 10 accused voluntarily surrendered to the Tribunal and the number of detainees more than doubled overnight.  Other voluntary surrenders and arrests, primarily by SFOR, followed these surrenders, causing the number of detainees to grow to over 30 today.  The ensuing period of the Tribunal’s development, which roughly coincides with my Presidency, has necessarily focused on actually providing trials and appeals to individuals in detention.  The Tribunal has thus matured, moving from institution-building to becoming an effective operating court.  There have been many challenges in both phases of our development, but I want to focus on the principal issues that we are now facing in carrying out our mandate and on which the Tribunal’s future may depend.  

Mr. President, one of the primary concerns that I have is the length of the Tribunal’s proceedings and the resulting time that detainees are spending in detention.  While we are making progress in dealing with our current docket, the fact remains that the trials, in a number of instances, take long periods of time to complete.  This means that the accused often spend extended periods in custody either awaiting trial or in trial.

There are a number of reasons for these lengthy trials.  The Tribunal is the first international criminal tribunal in 50 years and the law it applies must, in many instances, be interpreted and applied for the first time.  Moreover, the trials raise complex legal issues, which take time to resolve, and create voluminous records.  For instance, in the Bla{ki} case, which has just been completed, the transcript is over 25,000 pages and the Trial Chamber rendered over 150 written decisions and orders, establishing important substantive and procedural precedents. 

To do justice properly takes both time and resources; the accused is entitled to a fair trial and is presumed to be innocent, and the Prosecutor is responsible for proving guilt beyond reasonable doubt.  This process cannot be short-circuited.  I recall the words of Justice Robert H. Jackson in his opening statement at Nuremberg:

“We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow.  To pass these defendants a poisoned chalice is to put it to our lips as well.”

While there are reasons for the length of trial and detention, we are striving to do better.  Therefore, we have initiated a number of steps to try to speed up trials.  In 1998, we adopted a substantial number of amendments to our Rules of Procedure and Evidence to provide for stronger case management by the Judges, particularly during the pre-trial phase of the proceedings.  A Working Group on Trial Practices has been established, with a mandate to make practical recommendations that would reduce the length of trials.  The Judges are also seeking an increase in their legal support staff, so that they will have the resources necessary to support them in their work.

While these steps will undoubtedly assist in reducing the length of trials and the time spent in detention, the fact remains that we have a limited number of Judges.  I believe that we will have to consider more radical measures. The Expert Group, established by you - the General Assembly - has made a number of suggestions in this regard.  I want to comment on several ideas that I think are particularly worthy of consideration.

Mr. President, one of the fundamental issues that the Tribunal faces is determining which of the many culpable individuals in the former Yugoslavia should be brought to justice in The Hague.  This is a thorny issue as all victims of atrocities are entitled to the vindication provided by a public trial, regardless of whether the perpetrator is the highest of officials or the lowest of foot soldiers.  However, we must realize that the Tribunal has only limited resources and cannot bring to trial every individual allegedly connected with the atrocities in the former Yugoslavia.  Difficult choices must be made.

The Security Council established the Tribunal in the belief that it “would contribute to the restoration and maintenance of peace”.  Thus, it is my view that the Tribunal’s principal responsibility is to bring to justice those individuals whose presence impedes the establishment of civil society in the former Yugoslavia.  Therefore, we must bring to trial leaders who are charged with instigating the wars and who now prevent the restoration of peace and impede reconciliation.  I agree with the Expert Group that the “major objectives of the Security Council are, in large part, not fulfilled if low level figures rather than the civilian, military and para-military leaders who were allegedly responsible for the atrocities are brought before the Tribunals for trial”.  Moreover, I welcome the new Prosecutor’s policy statement that in the future she will follow “a prosecution strategy that properly focuses on leadership investigative targets”.

If the Tribunal is to truly focus on the principal perpetrators, it cannot become overwhelmed with cases involving other accused.  Thus, the Trial Chambers must find ways to address its docket, which is currently dominated by low-level figures.  One proposal that we have considered, and which has received support from the Expert Group, is for the Tribunal to have ad hoc or temporary Judges available to it.  These ad hoc Judges would be experienced trial Judges who would be assigned cases on an as-needed basis and paid a per diem rate.  Thus, when the Tribunal’s docket is heavy, they would be called into service for a specific case.  When their case is completed, they would return home.  This would greatly aid the Tribunal in reducing both the docket and the length of detention.  Moreover, the cost of such ad hoc Judges would be relatively small, as they would only work on a short-term basis and be paid accordingly.  While there are a number of issues that will have to be studied, I will be encouraging my fellow Judges to consider this proposal seriously.

A second proposal is the use of provisional release to reduce the length of detention.  Considering the egregious nature of the charges against the accused, the difficulty the Tribunal has had in obtaining custody of many of the individuals in detention, and the political conditions in the former Yugoslavia, care must be taken in granting provisional release.  However, in view of the period of time some of the detainees are spending in detention, I believe that this matter must be revisited.  The Expert Group has essentially recommended that at the initial appearance, the Trial Chamber inform the accused that if he is provisionally released and fails to return, his trial will proceed without him.  Thus, if he is released and absconds, he would be deemed to have waived his right to be present at the trial and his trial could proceed without him.  Again, I intend to encourage my colleagues in The Hague to carefully examine this proposal.

Mr. President, in my view, the steps I have outlined above will go a long way toward addressing one of the most significant issues facing the Tribunal.  There are other difficulties, however, which can only be resolved with the assistance of the international community as a whole.  As I have repeatedly stressed, the Tribunal is dependent on the international community for effective compliance mechanisms; we have no police force or means of coercing States to follow our orders.  Far too frequently, our calls for state cooperation go unheeded. Mr. President, I have the duty to inform you that the important work of the Tribunal is being hindered by non-compliance of the Federal Republic of Yugoslavia, the Republic of Croatia, and the Republika Srpska.  

Since the Fifth Annual Report, I have twice reported non-compliance of the Federal Republic of Yugoslavia with respect to its obligations relating to the Prosecutor’s investigation into possible violations in Kosovo. I have also reported the refusal of the Republic of Croatia to cooperate with the Tribunal on two grounds. First, that it had failed to recognise the Tribunal’s jurisdiction over alleged criminal activity occurring during and in the aftermath of “Operation Flash” and “Operation Storm”.  Second, that the Republic of Croatia had failed, despite repeated requests, to transfer Mladen Naletili}, who has been indicted by the Tribunal and is in the custody of the Republic of Croatia.  Croatia has indicated that it intends to transfer Mr. Naletili}; however, issues have been raised concerning his health, and he is not yet in The Hague.  Moreover, the Republic of Croatia has submitted a proposal to amend the Tribunal’s Rules that would allow it to present its arguments relating to Operations “Storm” and “Flash” to a Chamber of the Tribunal; this proposal will be considered in due course.  I must emphasize that such steps do not relieve the Republic of Croatia of its obligations to comply with the requests and orders of the Tribunal.  There is simply no substitute for compliance.

I must also point out that these two States and the Republika Srpska previously have been the subject of non-compliance reports to the Security Council by both my predecessor, Judge Antonio Cassese, and myself.  Unfortunately, there has not been a forceful response. I have recently written to the Security Council, recounting the history of these reports and last week met with its President, Ambassador Turk, to reiterate these concerns.  As I have stated, the Tribunal lacks independent coercive mechanisms and relies on the Security Council to adopt effective measures to compel state cooperation.  This it must do.

It is time, I submit, for this complacency to cease.  Radovan Karad`i} and Ratko Mladi} were indicted in 1995 and Slobodon Milo{evi} was indicted earlier this year.  Yet, these individuals remain at large.  Their liberty makes a mockery of our pledge to would-be tyrants that they will be indicted, arrested and made to answer for their alleged criminal acts and violations of human rights.  Moreover, over 30 of the individuals publicly indicted by the Tribunal remain at large.  It has been reported that the majority of these indictees are in Republika Srpska and in Serbia.  On the eve of the millenium, it is simply unacceptable that territories have become safe-havens for individuals indicted for the most serious offences against humanity.  It must be made absolutely clear to such States that this illegal and immoral behaviour will not be tolerated.

Mr. President, the international community is in the initial stages of establishing the International Criminal Court.  Make no mistake about it: if the international community does not ensure that the orders of the Court are enforced, it is bound to go the way of the League of Nations.  That would be a terrible tragedy and a tremendous opportunity lost.  I urge the international community to give our reports of non-compliance the attention that they deserve.  No court can function effectively without meaningful methods of enforcing its Orders and Decisions.  The Tribunal is no different.  We need your support in carrying out the important mandate with which we have been entrusted.

While we need your support to carry us forward, we also realize that the Tribunal must work harder to communicate with the peoples of the former Yugoslavia.  They are our constituents, so to speak, yet they often have little idea of what the Tribunal is doing except from what they learn via distorted news coverage and state-controlled propaganda.  In order to strengthen lines of communication with the peoples of the former Yugoslavia, this year we have established an Outreach Programme.  I am pleased to say that we have received substantial contributions from a number of generous States and organizations.  We have hired a Coordinator and the work has begun.  The Programme will focus on communicating with the peoples of the former Yugoslavia in the local languages, using innovative strategies to reach bar associations, other legal groups, universities and schools, media sources as well as the proverbial man and woman on the street.  I believe that this programme is one of the most significant initiatives that we have undertaken at the Tribunal and that its benefits to our work and to carrying our mandate will be invaluable.  I encourage Member States who have not already done so to support this programme financially so that it can become fully operational.

Let me close with a few personal observations.  I am still amazed at how much we have accomplished together in such a short period of time.  We have built—with your support—an institution that is dispensing justice; an institution that is playing an important role in rebuilding a troubled part of the world.  Our trials and Judgements are seen as being fair and just.  The Tribunal is engaged in bringing the rule of law to the former Yugoslavia, thus breaking the cycle of impunity.  I will always be grateful for the honour and opportunity to have served as a Judge at the Tribunal and to be a part of this extraordinary development.  Although I will soon leave the Tribunal, I will take with me my strong commitment to the work of the Tribunal and to international justice.

Thank you.