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Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 7 March 2001
H.H/P.I.S./571-e
ADDRESS BY THE REGISTRAR OF THE ICTY, MR. HANS HOLTHUIS,
TO THE PLENARY OF THE PREPARATORY COMMISSION OF THE
INTERNATIONAL CRIMINAL COURT DURING
ITS SEVENTH SESSION (6 MARCH 2001)
Please find below the address delivered by the Registrar of the ICTY, Mr. Hans Holthuis, to the Plenary of the Preparatory Commission of the International Criminal Court (ICC) on 6 March 2001 in New York:
"Good morning Mr. Chairman, Vice Chairs, members of the Preparatory Commission, and honoured guests.
It is a great honour and privilege for me to have been granted the opportunity to address the Seventh Session of the Preparatory Commission. As you may know, I was only appointed Registrar of the ICTY at the beginning of this year, and I am thus a relative newcomer to the ICC process. Nonetheless, I considered it to be a matter of some importance that the experience gained by the
International Tribunal for the Former Yugoslavia over the years be made directly available to you, as it has been in the past through previous representations to this distinguished body by my predecessor, by the former President and Prosecutor, and, just a year ago, by one of our Judges on behalf of the current President of the Tribunal. It is also my hope that the participation in
your important work by Tribunal officials at the working level, continue.
My brief intervention this morning aims at being practical in nature, focusing on realities familiar to the Tribunal through its work, rather than on broad principles and general overviews.
You had before you during your Sixth Session, as you do during the current Session, three documents which I would consider to be part of the engine room of the International Criminal Court: its Financial Regulations, a multilateral agreement on its privileges and immunities, and the agreement which will govern the relationship between the Court and the United Nations.
It is stating the obvious to say that each of these agreements will greatly influence the way in which the Court will be able to function. Allow me, therefore, to make some general comments regarding the draft documents under discussion, before sharing with you some thoughts on the practicalities of having to set up the Court.
When the International Tribunal for the former Yugoslavia was set up, the United Nations started something new and quite unfamiliar to the Organisation. An administrative and operational infrastructure which had been built up over decades to primarily run bodies with secretarial functions and, later, to mount peacekeeping operations and operations to assist refugees, had to be used
to set up an international criminal tribunal for war crimes committed by individuals.
One of the challenges which an international criminal process in respect of an accused individual holds, is that it is a process which allows for little compromise. If a prosecutor suspects that a crime within his jurisdiction was committed, he must investigate, and, if a case presents itself, he must prosecute. If a difficult legal question arises during the proceedings, it must
be fully dealt with by the judges. And, once the process has started, internationally recognised human rights standards, demand that an accused must have legal representation (paid for either by himself or assigned by the Court). Moreover, an accused is entitled to get all information which concerns the criminal process - from investigation to prosecution in court - in his/her own
language. Finally, the same internationally recognised human rights standards I referred to earlier require that an individual, who has been wrongfully accused or convicted, is entitled to some form of compensation.
In other words, a criminal process - be it national or international - is largely determined by standards which must be met. It is a process which must be completed once it has started, and a process which allows for few compromises and short cuts. That has been the reality of the International Tribunal, and, as you may understand, the Registry, which, under the ICTY Statute must
serve both Chambers and the Prosecutor, is often at the receiving end of that reality.
I think the United Nations and its Member States can be proud of the way the administrative shoe was made to fit the judicial foot. Having said that, it cannot be a surprise that the fit was not always perfect, simply because of the difficulties of matching the needs of an organisation like the United Nations and institutions such as the ad hoc International Tribunals. Allow
me to share with you some examples of this, hoping that they may be of use to you in your current deliberations.
In trying to envisage what the future International Criminal Court will look like and how it is to be run in the most efficient manner, we see, based on our experience, an institution the administration of which should have the notion of "flexibility" as the cornerstone of its modus operandi.
In this regard, I refer to the voluntary surrender of 10 accused on one day in October 1997 - towards the end of the Tribunal’s budgetary cycle. All but one claimed indigency and requested assignment of counsel. As I indicated above, it is in the nature of a criminal judicial process that lack of budgeted funds cannot preclude consideration, and, if the appropriate rules are
complied with, approval of such a request. I also refer to the sudden eruption of the crisis in Kosovo, only two and a half months after the approval of our annual budget for 1999. The Tribunal was suddenly faced with an acute and fairly considerable need for funds, manpower, equipment, and the reinforcement of quite specific expertise. There again, it was in the nature of the
criminal judicial process that investigations had to commence without delay, before much of the potential evidence was contaminated or destroyed.
In both situations, there was an acute need to act quickly, and to manage funds and assets in light of the tasks assigned to the Tribunal. The Kosovo crisis required a sudden expansion of the Tribunal’s field operations. Means had to be found to do this, allowing for a similar decrease when the work was completed. The sudden increase in October 1997 in the amount of persons in
detention meant that, almost overnight, the holding capacity at the detention facility of the Tribunal had to be enlarged considerably. As I indicated, it further meant that legal aid expenditure had to be substantially increased, and that, with very little lead-time, assets and expertise had to be directed towards creating more courtroom capacity.
There are other areas in which reality has given us lessons, and allow me at this point to venture into some of those lessons in some technical detail.
It has been our experience that financial regulations and rules which strive for full transparency - in itself an essential aim - do not always tally with the sometimes delicate circumstances under which vulnerable witnesses called by the Court need their financial arrangements taken care of. We have found that many of the assumptions on the basis of which travel arrangements are
made for staff and other persons on mission for the Tribunal, rarely apply to this category of persons. Many of our witnesses are victim witnesses who have suffered greatly as a result of war. They have lost family members, housing and property, and are often unemployed. Few of them have traveled by air before; let alone to another country. Many are also refugees or internally
displaced persons, trying to put their lives back together in very difficult post-conflict circumstances. Some are at risk, in view of the testimony they give. In some cases, these witnesses do not even have valid travel documents, and have expressed fear for their national authorities. It is obvious that these witnesses fall in a very different category than regular UN staff members
for who travel services, equipment, etc. have to be provided. It has proven to be very difficult for the Registry to ensure full confidentiality and to obtain all the relevant documentation when arranging services such as travel, temporary housing, and medical services for such sensitive witnesses, while, at the same time, fully complying with the established financial practices of
the United Nations. Accordingly, in light of these experiences, I would like to reiterate the point made by Judge May in his address to this Commission last March, i.e., that it is crucial that the Financial Regulations and rules of the ICC, as well as its procurement rules, include specific provisions applicable to victims and witnesses and their unique needs. To his appeal, I
would add the need for adequate and clear arrangements in the agreement on privileges and immunities, for instance, by taking into account that many witnesses and victims will not be willing to travel and testify without a family member, a friend, or some form of legal representation with them. Along the same vein, we have found that the privileges and immunities designed for, and
customarily granted to, UN staff members and State representatives do not always easily translate into a well-defined legal status which can enable a defence team to work effectively. We have been faced with the difficult question of having to determine who is part of that defence team, and, once that has been determined, which privileges and immunities which members of that team
require. Similar questions of scope can also be asked as regards the special legal status that must be accorded to other categories of persons which are strange to the UN mould: counsel which is not defence counsel (as I indicated, for instance, a legal representative of a victim); accused; and even suspects. To this category of strangeness, representatives of NGOs providing essential
services or other assistance to the International Tribunal should also be added.
Each of these categories of persons have an essential role in the criminal process, and we have found it to be of the utmost importance that their legal status is defined as clearly and explicitly as possible.
Distinguished delegates, these are some of the realities with which we have had to deal. I share them with you as openly as I have, not as a disguised complaint - the Secretariat and the ICTY have managed to make things work through close co-operation – but, rather, as matter which we have encountered in practice and as factors which we feel must be taken into consideration now
that time and opportunity present themselves to set up an administrative and operational framework truly geared towards the operation of an international criminal court as such.
To conclude my remarks this morning, I would like to share with you some thoughts regarding the practicalities of setting up a Court, taking into consideration issues which do not necessarily fall within the purview of the documents now under consideration by the Commission. These issues are nonetheless raised because it is my feeling that they warrant consideration, despite the
fact that the Rome Statute has not yet entered into force.
The practicalities of setting up the ICC, are obviously manifold, and represent a considerable challenge even in the best of circumstances.
The ICTY has had, from the day of its establishment onwards, a basic system, and people trained to work within that system, at its disposal. There were financial-, procurement-, recruitment-, and staff rules from the first day onwards, with the help of which, for instance, individuals could be hired and paid, who could subsequently commence the lengthy process of negotiating a
lease for a building. There were basic systems in place to deal with the most rudimentary security concerns the Tribunal was faced with, even though that system did not in any way take into account the specific information security requirements required by a judicial institution with many sensitive witnesses.
As I have outlined above, what was there was not perfect, but it did make it possible for the Tribunal to direct its resources and start work on the additional, Tribunal-specific systems that needed to be put in place, and I will just name a few examples of such systems: a court-archiving system, rules of detention, rules governing the assignment of counsel, regulations regarding
visits to and communication with detainees, model enforcement of sentences and relocation of witnesses agreements, investigation protocols, information security directives, security directives and protocols for staff in the field, codes of conduct for counsel, procedures and protocols for the handling of evidence, a framework within which to deal with claims by wrongly accused or
convicted persons, and, as a final example, a code of ethics for interpreters.
It is my strong recommendation that such systems are set up for the International Criminal Court before it is asked to face the challenge of its first case. I would anticipate that that first case will be a sufficient challenge in and of itself. And, based on our experience, I would also anticipate that it will take time and effort to put those systems in place.
Let me go back to the most basic structure. As I stated, the International Tribunal was able to piggyback ride on the UN recruitment procedures, staff rules, and to use structures such as the UN Joint Staff Pension Fund and the UN Administrative Tribunal. However, we have found that the arrangements in place do not sufficiently allow the Tribunal to address the challenges of the
labour market from which an international criminal court must recruit; something which will affect the sustainability of the Court in the long run. For instance, a large segment of the Tribunal’s workforce, the lawyers, are merit-oriented, job-mobile individuals, who leave a national prosecutorial, judicial or academic career, or a position within a law firm, to work in the area of
international criminal law for 3 to 5 years, only to move on to other things thereafter or to get called back to serve their own government once more. Such employees require flexibility as regards the pension and health insurance scheme in which they can participate, and the organisation they work for requires job classification systems which can fully take their experience into
account.
The International Criminal Court will also have to take into consideration that some of the essential expertise it requires will be rare - few pathologists have experience with the exhumation of mass graves in war zones - and such expertise will have to be obtained and put to the use of the Court in a flexible way, which meets the demands of the labour market.
Distinguished delegates, it is clear from the ICTY’s experience that many practical matters need to be taken care of before the International Criminal Court can even begin to consider its first case. That will take time. It is also reflecting on that experience that it must be done in advance, so as to give the Court the most effective tools possible to enable it to do its
important and difficult work. In this regard, I offer you once more the practical experience of the Registry and the other organs of the ICTY. Our staff shares a feeling that setting up a strong, effective and credible International Criminal Court to serve the cause of international justice is as important and worthy of dedicated service, as ensuring that the ad hoc Tribunals
fulfil their mandates.
Mr. Chairman, distinguished delegates, you appear now to be in the final stages of a process which started quite a while ago. May I encourage you to be as meticulous in detail and planning as you have been to date, in order to give the International Criminal Court the engine room it requires for its important work.
I thank you for your kind attention."
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